If the court determines the obligor should be incarcerated, CSS must ask the court to set purge conditions at the time of execution of sentencing. The purge conditions may be presented to the court as an agreement between CSS and the obligor. If no agreement is reached as to the purge conditions, the State’s Attorney requests an evidentiary hearing on the ability to purge, per CSQuest article Evidentiary Hearing on Ability to Purge at Trial Court Proceedings for Civil Contempt, in order to set a purge that is appropriate to the obligor’s present ability to pay. This phase of the court proceedings may occur directly after the trial or at a later time, depending on the court.
Sentencing is the stage of the proceeding when the court determines if the obligor should be incarcerated, or if some other measure will compel compliance with the purge conditions. This is the point where Child Support Services (CSS) should urge the court to make the sentence individualized to that person’s circumstances and ability to purge. This may occur immediately following the trial, or later if the obligor does not substantially meet the terms of the purge conditions contained in the Judgment on Contempt (CC2). CSS should never request the court impose incarceration at any stage of the proceedings without evidence the obligor is able to satisfy the purge conditions in a manner acceptable to the court and the State’s Attorney.
- The obligor may face imprisonment for up to six months in the county jail and/or be fined an amount not to exceed $500 for the underlying contempt. The judge decides the length of the obligor’s sentence and the purge amount.
- The court may choose to sentence the obligor, but stay execution of the sentence and set another hearing date in the future. Execution of sentence may be stayed indefinitely so long as the obligor complies with the purge conditions.
- The court may choose not to impose sentence on the obligor, but instead may set another hearing date in the future for sentencing. Sentencing may be continued this way many times as a means to monitor payments and compliance with other purge conditions.
- The court may choose to sentence the obligor and execute the sentence immediately. When the court orders imprisonment, the court must set purge conditions. CSS requests an evidentiary hearing at sentencing regarding obligor’s ability to pay a purge fee and comply with other purge conditions. After the evidentiary hearing, CSS requests a purge fee or other purge conditions in accordance with the evidence. A purge fee may be less than the full amount due under the contempt citation. District Court Rule 8.3 provides guidance as to how the court should set a purge fee.
When a judge orders the obligor to serve a set number of days in jail and sets a purge fee, the following may occur:
- If the obligor serves the full sentence or pays the ordered purge fee, the court finds the contempt has been purged. The contempt action is concluded and no further hearings should be set. If the obligor has paid a cash bond or purge fee, CSS files a Motion to Disburse Bond or Purge Fee(CC6); or
- If the obligor is imprisoned, the court may release the obligor prior to serving the full sentence if CSS and the obligor make a subsequent partial purge agreement. This agreement must be in writing and approved by the court and may include:
- A lower purge amount than originally set;
- An amended payment plan on the arrears; and/or
- Future compliance with previous purge conditions.
Often, CSS is contacted by the obligor and/or family to negotiate an early release. These requests should be reviewed by the State’s Attorney on a case-by-case basis to see if the offer is appropriate under the facts of that particular case. Pursuant to District Court Rule 8.3, the court will determine if the partial purge conditions are acceptable. If the obligor is released early, he/she can be ordered to return to court to review future compliance.
Once the obligor has satisfied the purge conditions, the obligor’s attorney or the State’s Attorney can request an order releasing the obligor from any further proceedings under that contempt, by using the Order of Release from Contempt(CC11). The court may require that all court costs be paid before an Order of Release from Contempt (CC11) is entered.
Legal Authority
See: Civil Contempt Legal Authority