Any person obligated to make child support payments who willfully becomes delinquent may be guilty of a felony if the following elements occur:
From September, 1993 to present, the obligor has willfully failed to pay child support, medical insurance and/or childcare payments for either:
- A period of one year, or
- In an amount equal to or greater than $5,000.00
If these elements are present, child support may submit a request to the district attorney of the county where the underlying order is located. The decision to proceed with legal action is at the discretion of the appropriate district attorney.
Be sure to check with your local district attorney to comply with their filing specifications.
An investigation is conducted by child support to determine the reason for non-payment, i.e. whether willful or not. Information obtained in the investigation is then provided to the district attorney’s office.
An Information (The charging document) is filed against the obligor (who has willfully failed to pay the court ordered amount). The Information must contain:
- The name of the child(ren) for whom support is ordered
- A verification (a signature under oath) which may be on information and belief.
- Name(s) and address(es) of the witness(es)
- That the obligor has willfully failed to pay the court ordered amount of child support/medical insurance/childcare for one year or in the amount of $5,000.00 or greater
- A warrant for the arrest of the obligor (some district attorneys may notify the obligor to surrender rather than issue a warrant for his/her arrest)
An Arrest Warrant is issued by the judge and a bond amount is set.
Initial appearance (the judge does not accept a plea at this time, the case is set for a preliminary hearing conference)
- If the obligor paid the bond amount, he/she then appears for the initial appearance. If the obligor did not pay the bond amount, then he/she remains in jail and is brought to the courtroom for initial appearance
Preliminary hearing conference, in counties which have them, otherwise the case proceeds to Preliminary hearing (the district attorney may make a plea recommendation at this time)
Preliminary hearing (the district attorney must prove probable cause)
- If probable cause is found then formal arraignment date is set
- If probable cause is not found then the case is dismissed
- The obligor formally enters a plea of guilty or not guilty
- The obligor may choose a jury or non-jury docket if pleading not guilty and a trial date is set.
- The obligor may be sentenced as per the state’s recommendations or may enter a “blind plea”. A “blind plea” is when an obligor notifies the court he/she is pleading guilty but is not willing to accept the state’s recommendations for sentencing
- If the obligor is found guilty he/she may be imprisoned for no more than four years and/or fined no more than $5,000.00. The actual sentencing will depend on the state’s recommendation and the court’s discretion
- The obligor may appeal the results of the trial to the Supreme Court
- That the defendant is not the person obligated to pay support
- That the support was paid
- That the nonpayment of support was not willful