The Child Support Recovery Act, well known as the “deadbeat-dad” law, makes it a federal crime to flee a state in order to avoid paying child support arrearages. The law applies to any parent who owes more than $5,000 in back child support payments or who has failed to pay on the arrearage due for more than one year.
Elements of the Crime
To convict a parent for not paying child support under the Child Support Recovery Act, a prosecutor must prove that the parent had willfully failed to pay his or her past due child support obligation. This means that a prosecutor must prove that the parent knew he owed child support, had refused to pay the past due obligation, and intended not to pay. Willfulness is not presumed from the failure to pay; it must be proven by the prosecutor. The inability to pay is a valid defense. However, if the person has some ability to pay, even if not all of the amount due, and makes no effort to either pay what he can or have the amount due modified, a court might find him guilty of violating the law.
Several factors have been identified as to whether a state should refer a matter to the U.S. Department of Justice for federal prosecution. These factors include: (1) whether the evidence is sufficient to obtain a conviction; (2) whether there exists a pattern of repeated flight from state to state to avoid payment or avoid service of process; (3) whether there is a pattern of deception to avoid payment, such as concealing assets or repeatedly changing employment; (4) whether there has been a failure to pay the arrearage after being found in contempt of court; (5) whether there is any evidence of the parent’s ability to pay and the amount of the arrearage; and (6) the availability of adequate non-federal criminal or civil alternatives to federal prosecution.
For first time offenders, the failure to pay constitutes a misdemeanor, punishable by imprisonment, with a maximum sentence of six months. Any subsequent violation is punishable by imprisonment with a maximum sentence of two years. The Act also requires that the sentencing court order restitution in the amount owed at the time of sentencing. Any probation must include that the parent comply with any current orders of child support. Under amendments to the law enacted in 1998, the Deadbeat Parents Punishment Act, it is a felony to flee a state to avoid paying child support where the amount due is $10,000 or where the parent has owed at least $5,000 for a period of at least one year.