Child custody, child support, and other co-parenting arrangements can be difficult to navigate, even when everyone is doing their part. So when a parent outright refuses to contribute, even with a court order directing them to, it can create a lot of stress and frustration for the custodial parent.
There can be stiff penalties for a parent who’s unwilling to pay child support. Whether you pay or owe child support, knowing your rights and how to navigate the legal processes will go a long way to protecting your child’s best interests. Talk to a child support law attorney in your state to answer specific questions about enforcing child support orders.
In general, child support payments are only enforceable if a judge approves them and decides which party will pay the other and what the amount will be. The amount of child support that the court will assign factors in each parent’s income, eligible deductions, who has primary physical custody (the custodial parent), and the general needs of the children.
While each state makes its own child support laws, there are federal guidelines they must follow. Under the Child Support Enforcement Amendments of 1984, a non-custodial parent cannot deny payment for court-ordered child support to the custodial parent, regardless of the physical custody arrangements.
But just because a judge issues a court order for a non-custodial parent to pay child support, that doesn’t mean the parent will always actually pay what they need to, or that they will pay on time. In some states, parents have a few days to make the payment in full without penalty, but late payments can quickly accrue interest and fees.
In some cases, there are logical and understandable reasons for the delay. Perhaps something has happened, like a sudden loss of income, which has affected a parent’s ability to pay their court-ordered child support. When that happens, the non-custodial parent should find a lawyer and go over the options for adjusting the order. Lost income does not excuse a parent from making their child support payments. They have to take proactive steps to adjust their court order, or they’ll continue falling behind.
States may have different timelines for when child support is considered late enough to warrant help from the courts. If the custodial parent isn’t receiving the monthly payments they’re owed, they should find a family law attorney who can provide insight on their rights and legal advice about how they should proceed.
If you have a deadbeat dad or mom who isn’t making child support payments, you can take them back to court. The judge can issue a wage assignment that results in an automatic deduction from the other parent’s paycheck. You may also be able to “attach” or “levy” upon your spouse’s bank accounts, stocks, or other property, including a house. In many states, the local district attorney’s office has the power to enforce support payments.
Accordingly, you could hand the matter over to the district attorney’s office or a similar government office to pursue the obligor parent. Many courthouses offer free services that give advice on the best strategy to use.
In many cases, you’re probably better off reporting the other parent’s failure to pay child support. You may choose to hire a child support attorney to help you address their lack of financial responsibility or you may consider applying for child support services through a state agency.
A delinquent obligor parent may face a variety of consequences in a child support case, including contempt-of-court charges and civil penalties, or even criminal sanctions like a fine or jail for repeat violations.
In terms of child support collection, most states will enforce wage garnishment that requires the non-paying parent’s employer to send a percentage of their paychecks to the state or county, which in turn sends it to the other parent. The IRS or state authorities may also intercept a delinquent parent’s federal tax return and apply it to child support owed.
Finally, the Uniform Interstate Family Support Act (UIFSA) allows parents to collect child support obligations across state lines. Most states have so-called “long-arm statutes” enabling courts that issue child support orders to retain jurisdiction over cases and enforce their orders in other states.
Under most parenting agreements, one parent will pay the other parent as part of a court order, even if both parents share custody. In an ideal world, the paying parent, also known as the “obligor,” would make the necessary payments on time, and visitation would occur without any problems.
Unfortunately, some obligor parents don’t make their scheduled child support payments. Whether we think the reasons behind unpaid child support are legitimate, malicious, or just plain nonsense, a parent’s first instinct might be to stop parenting time access until the funds arrive. But that could be a bad idea.
Child support, child custody, and visitation rights are separate issues, and enforcing one doesn’t necessarily depend on enforcing the others. If one parent fails to pay child support, the other parent cannot block them from parenting time. Likewise, if one parent is interfering with visitation rights, the other cannot withhold child support as retaliation.
While you may be inclined to say to a non-paying parent who withholds financial support, “no pay, no play,” this may only complicate matters further.
The best way to think about child support and visitation is to consider them as two different decisions, based on very different factors. Because of that, generally, they act independently of each other when it comes to enforcement.
Family law statutes govern the rules in setting forth child support guidelines that outline the recommended amount of child support. Usually, a parent’s income plays a role in the decision as well as the number of children.
Some states calculate the child support amount on a “percentage-of-income” guideline based on the income of the noncustodial parent. Most others use an “income-shares” method, which takes into account the income of both parents. And a few states look at a basic subsistence level for each parent before determining the primary support needs of the children, called the “Melson formula.”
Other potential elements of child support include a portion of health insurance, child care, and financial responsibility for educational expenses.
For the child custody and parenting time part of court orders, judges will make decisions in the best interests of the child. The factors considered as part of the best interests standard vary from state to state. Courts may consider the child’s wishes, but only if they’re old enough and state law allows, in addition to considering the parents’ mental and physical health, and maintaining a stable home environment.
It seems only fair that if a parent is entitled to a tax refund, and he or she owes back child support, then back child support ought to be paid off first. For that reason, federal law provides that if a parent owes back child support, then a state child support office can intercept that parent’s tax refund for you and apply it to the back child support. Even if the child for whom child support is owed is now emancipated, a parent’s tax refund can be applied to the back child support that he or she owes.
To qualify to receive the other parent’s tax refund for back child support, you need to make sure that you are enrolled in a tax intercept program, which you can do by contacting your local child support office or family law attorney While the state does not pay child support if the father doesn’t, if you or your child receives public assistance, then your local child support office’s services are generally free. In some states, private attorneys can obtain court orders requiring the parent’s state or federal tax refund be applied toward his or her back child support.
The federal tax intercept program may also apply if the federal government issues stimulus payments to taxpayers. This type of tax payment can be intercepted and applied to a parent’s back child support obligations.
Likewise, many states have state tax intercept programs, which essentially work the same as the federal tax intercept program. State child support offices can intercept parents’ state tax refunds, and apply them to back child support. States that do not assess an income tax, of course, would not have a state tax intercept program.
If a parent who owes child support is remarried, however, their tax refund might not be applied to back child support. If the parent and his or her new spouse have filed a joint tax return, and part of the tax refund is due to the new spouse’s income, the new spouse is entitled to his or her portion of the tax refund. To get that portion of the tax refund, the spouse must file an “injured spouse” form with the Internal Revenue Service (“IRS”). For this reason, joint tax refunds are held by state child support offices for six months before they are applied to back child support.
Tax refunds intercepted for back child support are first applied to back child support that has been assigned to the state, such as for periods when public assistance was drawn, and child support was not being paid. Once any balances owed to the state are paid off, the refund is applied to back child support that is owed to the other parent.
If the parent owes certain other government debts, such as federal student loans or federal income tax, the parent’s tax refund will go to pay those debts before back child support is paid. Additionally, the tax intercept program doesn’t help much when a parent doesn’t file his or her taxes or isn’t entitled to a tax refund, which can happen for various reasons.
In states such as Texas, the obligee parent may be able to request an order for retroactive child support to be paid. The amount owed is based on the obligor parent’s net resources, whether the parent owing child support was aware of his or her obligations, whether the owing parent will suffer undue hardship and if they provided support or necessities before the action was filed.
Retroactive child support in Texas can be paid for four years preceding the support petition. However, the obligee parent may argue for a period of more than four years if they can prove it is in the best interest of the child and if they can show that the obligor knew of their parental responsibilities and intentionally avoided them.
Parents who fail to pay child support can be held in contempt of court, which is a crime. The penalties for a parent who’s ignoring child support payments will depend on the specific details of each case, like the amount of child support that’s overdue and how long it’s been since they made a payment. The larger the amount and the later the payments, the stiffer the penalty.
The court may make arrangements to force child support payments from a parent who is not paying. Penalties vary by state, but many judges will order the:
If these attempts to collect child support payments aren’t successful, there may be other penalties, such as putting the parent in jail. The longer child support goes unpaid, the longer the potential jail sentence. For example, child support that’s two years or more overdue may take the contempt of court charge from a misdemeanor to a felony.
In states such as Georgia, you could be placed on a public “Most Wanted List” if you do not make your court-ordered child support payments. This means that avoiding your obligations as a parent can not only lead to penalties such as fines and jail time but also damage your reputation.
In Georgia, non-custodial parents who owe at least $5,000, have not made payments in the last six months and have not been located, are placed on the Georgia DHS’s public list, with the hope that someone might see the list and can help track down the parent owing child support.
An attorney with experience in child support law can help a parent petition the court to enforce the existing court order. They may also go through the trial with the parent to ensure they get the income they, and, most importantly, their child needs.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified child support lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local child support attorney to discuss your specific legal situation.
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