Child Support From Prison.

Incarceration alone does not automatically terminate an existing child support obligation. While going to prison presents a clear change in circumstances that may justify a suspension or reduction of current support payments, it does not end the legal obligation to support one’s child(ren). Instead, it falls on the incarcerated parent (or a representative acting on their behalf) to seek an appropriate modification from the court as soon as possible.

To modify or suspend child support during incarceration, courts typically require evidence of the change in circumstances, namely, imprisonment and the inability to maintain employment or income. If the court finds these requirements are met, the judge may then either:

• Suspend child support payments,
• Reduce support to an affordable amount, or
• Impose nominal support payments.

While courts may grant these modifications, the modification process is generally forward-looking. This means that while judges have the discretion to limit future support obligations, they are unlikely to automatically erase past-due child support arrears, unless there are mitigating factors that justify it.

Arrears refer to the amount of child support that has accrued prior to the date of the court modification.

Because modification generally only applies moving forward, anyone who was behind on child support prior to entering custody will typically still owe those past-due amounts. In fact, unless a parent successfully seeks modification and secures a suspension of child support payments, arrears will continue to accrue while they are incarcerated, compounding the financial challenges that will be present upon release.

Finally, enforcement actions will generally continue as well, as state agencies such as the Attorney General’s Office are tasked with maximizing child support collections. The accumulation of child support arrears will present potential legal issues both during and after imprisonment, and parents incarcerated for federal crimes will typically continue to face enforcement attempts from state authorities. Until the debt is paid, the government will continue to seek repayment, regardless of the parent’s imprisonment status.

How Can an Incarcerated Parent Request a Support Modification from Inside Prison?

A parent’s loss of a job does not, in itself, provide the legal authority to modify a child support order. While, as discussed above, a parent’s job loss constitutes a change in circumstances that can lead to modification, and evidence of an inability to pay child support will be relevant in contempt proceedings and in federal prosecution for child support evasion, a parent must still be able to prove their inability to pay to a judge. In this regard, parents incarcerated in the United States will need to work with legal counsel to obtain modification of their orders before going to trial.

While Spodek Law Group provides nationwide representation, we typically need to work directly with a parent’s lawyers (if any) before the commencement of a federal prosecution. Thus, parents incarcerated in the U.S. Will need to seek help from either themselves or their legal counsel in the State with legal authority to adjust the order. The available resources for modification within each state will vary; however, parents incarcerated in North Carolina can contact North Carolina Prisoner Legal Services, which provides legal help for prisoners in the state.

North Carolina Prisoner Legal Services (NCPLS) is a separate nonprofit law firm, not a program of Legal Aid of North Carolina. and it accepts direct written requests from incarcerated people. When dealing with requests from prisoners, NCPLS states:

• Written requests from prisoners: We encourage prisoners to write to NCPLS directly with their requests. While we understand that this can be difficult under correctional confinement, please send as much information as possible so that we can make an informed determination whether NCPLS can take on the case.
• Online requests: Due to the nature of our work, we generally cannot take on cases from individuals who communicate with us via an online form. While online requests are welcome from current or prospective clients, please include the client’s name, contact information, and current physical address.
• The foregoing resource from North Carolina Prisoner Legal Services is provided as an example. It does not provide substantive guidance on child support matters for prisoners.

Which Payment Sources and Collection Tools Still Matter During Incarceration?

Despite incarceration, there are still numerous payment sources that can come into play in child support calculations. Additionally, there are various tools available for the enforcement of existing child-support obligations as well. These include:

• Unpaid Child Support Interests. Unpaid child support may still accrue interest under applicable state law, or based on the specific terms and conditions of the applicable child-support order.
• Use of Assets, Rental Income, Benefits, and Investments. Parents incarcerated in the United States may also have assets, rental income, government benefits, or investments that could be used to make child support payments. In fact, unless modification is sought and granted by the state court having jurisdiction, child support calculations will typically proceed as if the parent is currently earning an income.
• Child-Support Agency Enforcement Services. Both custodial and receiving parents may seek child-support agency enforcement services under the appropriate circumstances. This is especially true when parents will need to continue providing support while they are incarcerated in the United States.
• Title IV-D Program Benefits. The federal Title IV-D program links participating states to various forms of child-support enforcement services, including services from the federal government. With this framework of support, parents receiving child support may be able to effectively and efficiently seek support enforcement services as needed.
• Wage Garnishment. Parents with a job loss (such as due to incarceration) that has not resulted in a modification of their child-support obligations under state law may be subject to wage garnishments.

Along with these enforcement mechanisms and other forms of collection tools, incarcerated parents will also need to rely on the help of their lawyers to ensure they make good-faith efforts to meet their child support obligations when appropriate. While, as noted above, modification is the key to addressing unpaid child support after incarceration, a parent’s financial or other circumstances do not, in and of themselves, excuse a parent’s legal obligation to support their child. Thus, incarcerated parents’ lawyers will typically seek a disposition and avoid any form of prosecution by working to convince judges of their clients’ good-faith efforts to resolve outstanding debts.

Spodek Law Group is a second generation New York firm. Todd Spodek practices out of the firm his father opened in 1976.

When Might State Contempt Follow Unpaid Support During Incarceration?

Civil contempt cases are more common in many states, and parents can face incarceration for failing to comply with a child-support order when they have the present ability to comply during civil contempt proceedings. This can present risks for parents with existing state child-support orders who are not in compliance before entering federal custody. Civil contempt presents risks for parents, so anyone facing civil contempt allegations should seek prompt intervention from a qualified lawyer.

Criminal contempt is slightly less common, but still possible. In criminal contempt cases, prosecutors must prove that the defendant violated the court’s support order. For instance, in Tennessee, a prosecutor is tasked with proving beyond a reasonable doubt that a parent had the ability to pay and willfully failed to pay child support. In cases of criminal contempt in Tennessee, indigent defendants can receive an appointed counsel if facing potential incarceration.

Incarceration is not universally recognized as a defense for nonpayment in child support enforcement proceedings. Some states recognize incarceration as a mitigating factor for excuse or modification of child support, while others require court-ordered modification to avoid contempt charges or enforcement measures. Additionally, some states only recognize specific defenses such as:

• Serious Illness or Disability
• Unemployment
• Drug Addiction

Despite the variety of circumstances that parents may face during incarceration, it is important for parents to continue paying child support in good faith. In fact, taking proactive measures like modifying a child-support order by seeking relief from the state court and obtaining legal assistance from a qualified child support lawyer is best for ensuring child support obligations do not present legal problems in the future.

While Spodek Law Group handles these issues, we are a federal law firm. Thus, any issues with child support, including issues with paying past-due child support arrears, will typically need to be dealt with by the state court having jurisdiction, and it will involve state law and local enforcement efforts.

What Must Federal Prosecutors Prove Before 18 U.S.C. § 228 Applies?

For a prosecution under Section 228(a)(1) or (3), prosecutors must be able to show that:

• The individual willfully failed to pay child support to their child or children; and,
• The individual’s child or children reside in a state other than the parent’s; and,
• The individual’s child support arrears amount to more than $5,000; or,
• The individual failed to pay child support for more than one year.

Alternatives, Not Cumulative Requirements

It is important to note that these requirements (child residing in a different state, arrears of more than $5,000, and failure to pay for more than one year) are alternative requirements, not cumulative. In other words, to meet the federal requirements for child support enforcement, it is not necessary for the arrears to exceed $5,000 and remain unpaid for more than one year.

The Requirement of Willfulness (and the Ability to Pay)

In addition to the requirements above, for an individual’s failure to pay child support to constitute a federal violation, prosecutors must also be able to show that the failure was willful. The relevant text of 18 U.S.C. § 228 is: “(a) Offense.-Any person who- (1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; (2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or (3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000; shall be punished as provided in subsection (c). (b) Presumption.-The existence of a support obligation that was in effect for the time period charged in the indictment or information creates a rebuttable presumption that the obligor has the ability to pay the support obligation for that time period.”

Why Ability to Pay Matters in Section 228 Cases

The government must prove that the individual’s failure to pay child support was willful. The existence of a support obligation creates a rebuttable presumption that the obligor has the ability to pay. A person who lacked the ability to pay may seek to rebut the statutory presumption of ability to pay, but lack of funds does not categorically bar accusation or prosecution under 18 U.S.C. § 228.

The government must also prove that the individual knew of the obligation, yet failed to meet it. If there were intervening circumstances (e.g., fraud or a mistake as to the child’s needs or eligibility), the failure to pay would not be willful under Section 228. If the individual willfully failed to meet the obligation, the federal government can prosecute for the child support violation by filing criminal charges under the federal criminal law.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.