My last post was a tease. I only told that story so I could tell you a more interesting one. In my last post I described the difference between civil and criminal contempt, but that was just the wind-up. Here’s the pitch.
If you’re paying child support, I’m now going to tell you how criminal contempt has changed, and why you may avoid going to jail for missing a payment. Also, if you’re supposed to receive child support but the money just isn’t coming in, I’ll tell you why it may be a little harder to force a payment out of the other parent.
The Abuse of Criminal Contempt
Until recently, a person who had failed to pay his child support could very easily find himself in jail for up to six months. Our bloodlust for deadbeat dads had caused the government to do one of the things our founding fathers had feared the most: We were putting people in jail with little or no evidence of any wrongdoing.
Here’s how the typical criminal contempt case would work
In many child support cases, there is a Child Support Receiving Unit that takes in the money from the payor, logs the amount of the payment, then sends the money to the other parent. The record of payments is available on the internet and a printed copy of the record is admissible in court to prove that payments have been made.
Most often it’s the father of the children paying support. Sometimes the father will become ill, or will get laid off from work, or will have some other event in his life that causes him to lose some or all of his income. As a result, he starts missing child support payments.
A lawyer representing the mother of the child would file a petition with the court asking for one count of criminal contempt for each missed payment. Each count can result in 10 days in jail for the father, up to a maximum of 180 days (18 missed payments). Attached to the petition would be a printed record of the payments from the Child Support Receiving Unit.
To win a conviction of criminal contempt, the plaintiff must prove that the child support wasn’t paid on time, that the defendant had the ability to pay the support, and that he willfully didn’t pay. Proving the lack of payments is easy with a copy of the record from the Child Support Receiving Unit. Proving payments is easy if the defendant kept records.
Here’s where it turns bad for the defendant
Buried in one of the code sections for child support is a provision that says if there is already a child support order in place, the order creates a presumption that the payor has an ability to pay the support. The courts were allowing plaintiffs in these cases to rely on this presumption to show the defendant had the ability to pay, never mind that the father might be out of work or injured.
Next, since it’s been proven that the father had an ability to pay, the plaintiff would argue that since the payments weren’t made, the nonpayment must have been willful.
Just that quick and easy, the defendant goes to jail. It’s been crazy, and I’ve written about how you could go to jail for paying child support ahead of schedule. I’ve written that you could go to jail for paying too much child support, and I’ve discussed paying child support for a missing child.
Some help from the Court of Appeals
How criminal law works
As I discussed in my last post, criminal contempt is treated like any other criminal charge. The guys who wrote our constitution were very concerned about an oppressive government putting its citizens in prison without sufficient notice to the person, without giving the person a fair chance to defend themselves, and without enough evidence to justify taking the person’s liberty away.
As a result of this concern, our constitution guarantees certain rights to a person who is charged with a criminal offense. Among those is the accused is entitled to notice of what exactly the charge is, and what exactly the behavior was that led to the criminal charge.
Perhaps most importantly, the defendant is entitled to force each and every charge against him to be proved beyond a reasonable doubt.
How criminal contempt works, an example
Tennessee has a rule of criminal procedure that defines how a charge of criminal contempt must be handled. The Court of Appeals is requiring the lower courts to not only follow this rule strictly, but require each and every charge to be proven beyond a reasonable doubt.
This case (link removed) is a pretty good example. Here, a woman charged the father with missing several child support payments. To prove that he had the ability to pay the support, mom testified that she knew he had occasionally been working, was in good health, and had made money selling copper he would find on the streets. Furthermore, he had kept a cell phone for the previous four years, indicating that he had access to money from somewhere.
The judge’s comments are interesting, and pretty typical in these cases at the time:
Well, you know, you don’t have to have a smoking gun. They don’t have to
have pictures and proof and a paycheck stub and all of that kind of stuff to
prove contempt. You just don’t have to have that. Ability to pay is an ability
to go out and work. He walked out of here looking fine, didn’t make his
[Mother] saw him in February and March. The testimony was – and again, .
. . [s]he doesn’t have to follow him to the dumpster (inaudible) watch him go
down there, cash it, put money in the hand; she doesn’t have to prove all of
that. She has to prove he has an ability to work. He was in the car. We can
look at circumstances and we can draw a reasonable conclusion from the
circumstances. He is in the car, there is copper in the tru[n]k. She knows he
has done that historically. He is on his way there and says, after we are done,
call me and I will give you money. . . .
He was working. He gets out and hustles like she says he does. She has seen
him on several occasions able-bodied and able to work, both during the period
of contempt and after the period of contempt.”
So ask yourself, does this indicate that the father’s ability to pay child support had been proven beyond a reasonable doubt? The Court of Appeals says it does not. There’s not much discussion about it in this case, but in another case the court made it clear that it must be proven that the defendant had the ability to pay the support at the time the support was due.
Furthermore, the court said the father wasn’t properly notified according to the rules I mentioned above. The father received a copy of his payment record from the Child Support Receiving Unit (showing which payments had been missed), along with a petition for contempt which stated the following:
That the Court find the Respondent guilty of criminal contempt of Court
pursuant to Tennessee Code Annotated Section 29-9-101 et seq, and sentence
the Respondent to the Metropolitan Davidson County Workhouse/Jail for a
period of ten (10) days per violation of the Order of this Court, for a total
sentence not to exceed six (6) months.”
Again, what do you think? Does this language give the defendant proper notice of what he’s done wrong, that he’s been accused of criminal contempt, and how much jail time he faces?
The Court of Appeals says it does not, because it “did not clarify for Father the proper number of alleged violations or the correct amount of jail time he faced.”
What you need to know
I need to be clear about one thing: While it’s true that the Court of Appeals has made it more difficult to earn a conviction for criminal contempt for failure to pay child support, people who are ordered to pay support must still pay it. Don’t think that this is a license to stop paying.
Lawyers are already adapting and finding ways to put on a sufficient amount of evidence. The rules make it difficult to get a conviction, but it’s still possible. There is still the option of civil contempt, which is less harsh, but can still result in jail time.
If you are charged with criminal contempt, you will need a lawyer. You may qualify for appointed counsel if you can show that you have little or no income. If not, you’ll need to hire someone to help you.
If you are supposed to be receiving child support and the other parent isn’t paying, you need an experienced attorney to help you force the other parent to pay. If you are in either of these positions, contact me to find out how I can help you.