Are There Penalties Associated with Late Child Support Payments?
Interviewer: How is child support enforced and what are some penalties one may face if they don’t pay child support?
Paul Tafelski: Child support becomes part of the judgment of divorce or the judgment of custody and that judgment is a court order. Any time you don’t obey the court order, you’re technically in contempt of court. Either the other party or perhaps the prosecutor’s office can file a motion for you to appear. They will show just cause why you should not be held in contempt of court.
Missed Child Support Payments Are a Violation of a Court Order and Are Punishable with a Jail Sentence
If you are found in contempt of court for not making your payments, the judge has the ability to lock you up and keep you there until you come into compliance with their terms and their orders. In some situations, the prosecutor’s office can choose to charge you with felony non-payment of child support.
That law is extremely easy for the prosecutor to prove. All they really have to do is show that you missed at least one child support payment and that you could technically be convicted of a felony.
Now, in reality, they typically don’t charge people who miss one payment. I’ve never, in fact, I’ve never seen them charge somebody who misses one payment. Usually, they’re charging individuals who haven’t paid for long periods of time and have ignored other attempts to collect the money.
But that is a law that it’s on the books and they are actively prosecuting people at all times. That’s another way that you can be punished for not following the court’s orders.
All Missed Child Support Payments Continue to Accumulate
Interviewer: What about individuals who are missing and can’t be found? Does the other parent, the would-be-recipient, ever get compensated?
Paul Tafelski: The amount due will continue to accumulate. Usually, there is some way of trying to find them. Even if they’re in another state, there are ways to try to go about trying to collect that money ultimately. It usually works best if the parent who is owed the money is active in trying to find them.
Missing Payments for 2 Years Can Result in a Termination of Parental Rights
If they find them, then it becomes a little easier for the court to do something. There’s not too many situations where you have someone who is such a deadbeat parent that they just ran off. They never see the child and don’t pay support, when they actually have the ability to pay. If the party is gone for more than two years without paying any support to the child, then that other parent can try to terminate their parental rights for abandonment.
Can the Paying Parent Dictate How Child Support Money Is Spent?
Interviewer: Let’s say I was paying child support and I don’t feel it is being used appropriately. Could I call a lawyer and make a case out of that?
Paul Tafelski: You could bring that to the court’s attention through a motion and through a lawyer that the money isn’t being spent on the child or isn’t being used to support the child. Instead it is being used for some wrongful purpose.
The Paying Parent Will Continue to Pay While a Case Is Being Appealed
Interviewer: What if someone is paying child support and the case goes under appeal. What happens to that child support? Does it halt or does that person still have to keep paying?
Paul Tafelski: They have to keep paying typically. Unless they could get the Court of Appeals to halt it but they’re going to have to keep paying because the court’s going to determine that this is money that’s for the child and needed by the child.
The court puts the interests of the child ahead of most other things. You could always ask the Court of Appeals to take some kind of emergency action but it’s unusual that they would do that.
Interviewer: What about a situation where a mother has three children who have three different fathers. Could the mother receive child support for all three?
Paul Tafelski: Only from each child’s father.
If the Recipient Parent Has an Increase in Income, Can the Paying Parent Modify the Amount They Are Paying?
Interviewer: Let’s say a father is paying child support and the mother is receiving the child support, however, she starts receiving a lot more income. Can the child support be reduced or reevaluated?
Paul Tafelski: It can be affected based upon a change of circumstances with either party. However, the formula more heavily weighs what the person paying makes than it does what the person receiving it makes. That is the factor though and it will affect the formula somewhat but the most important factor is the income of the paying party.
Child custody is one of the most intensely contested areas in family law. Basically, the main source of contention is when both parents want the child or children to live with them or they think that the other parent is unfit. In the divorce process, you have the opportunity to fight over custody. Both parents will start off with an opportunity to make their case.
Established Custodial Environment
Now, if the children have been living with both parents and continue to live with both parents then they have what’s called an established custodial environment with both parents. Then there’s not an advantage, one way or another, with regard to that issue.
If the parents have been separated and the children have been living with one parent primarily for a significant amount of time. Often, that parent is deemed to have an established custodial environment and the other parent is not. When that happens, the parent who has the established custodial environment is at an advantage in the custody case.
The Courts Do Prefer Not to Interrupt the Routine of the Children If There Is an Established Custodial Environment
This is because the court is going to basically look at it as the children have already been living here and this is how what they are used to. If things have been going well it’s a situation that they may not want to disrupt. That’s the first important consideration. That’s something that goes into the planning phase of getting a divorce. You try to make sure that you’re situated, as needed, for a custody battle.
Best Interest Factors: The Courts Will Always Weigh What Is Best for the Children in Custody Issues
In general, what the court is trying to determine is what is best for the children. There are several factors that are considered the best interest factors. The court is legally required to look at them when making custody determinations in any case. Those factors include: the love, affection, and emotional ties between the party and the child, the capacity and disposition of the parties to give the children love and affection, and the ability of the parties to provide food and shelter and things like that for the kid.
The length of time that either parent has had a stable, healthy environment, the permanence of their family unit, and their moral fitness are considered. This is an area where sometimes issues concerning affairs and relationships can come into play. The mental and the physical health of the parties are examined.
For example, one party might be ill, either mentally ill or physically ill. They may not be able to take care of the children and that can be a big factor in custody. If the child is old enough, their reasonable preference is also considered.
How much each parent looks at facilitating and trying to make a good relationship between the children and the other parent? Then, has there been any domestic violence in the house that the children witnessed? The answers to these questions are all relevant factors.
The Courts Examine All Factors, in Some Cases, Their Decision May Favor One Party over the Other
If the parties can’t make an arrangement on their own, the court has to go through and decide whether each of those factors favors one party over the other or if they’re equal. The court will often tally up those factors and decide kind of who has more in their favor and they may end up prevailing.
Now, the court does not have to give equal weight to every one of those factors either. This is where their own power of deciding what’s fair and what’s just comes into play. It’s a pretty involved process to have a custody battle.
This is because you have to dedicate energy and resources to developing why you are the superior party with regard to each of those best interest factors. Both custody cases get pretty in depth into throwing dirt and mud around. This is because oftentimes, in order to build yourself up, you have to knock the other party down a little bit.
Child Custody Issues Can Cause the Most Contention in a Divorce
Also, often times, the reason why there is a custody dispute is because one or both parties really truly believe the other party is not fit. They believe the other is not a good parent and that the kids will not be served well by spending a lot of time with them. This is where the real stigma of “messy divorce” comes from. It usually involves custody battles.