In most domestic cases involving children, child custody and child support are two (2) of the key issues in the litigation process. Determining where the child will physically reside (the custodial parent), how the parents will make legal decisions regarding the child (about major life issues, such as religious upbringing), and the amount of support owed by which parent are all common parts of divorce and paternity matters.
What happens when child support is not paid? Previous blog posts have examined contempt petitions and even suspension of a parent’s driver’s license for failure to pay child support. In extreme cases, a parent may be criminally charged with a felony and imprisoned for continued failure to pay child support.
This is different from being jailed for contempt, because the contemptor only has to pay and follow the court’s order to be released. He or she holds the proverbial keys to the jail by following the order. This blog addresses being charged as a criminal for non-payment of support and going to and Indiana prison within the Indiana Department of Corrections.
A recent Indiana Court of Appeals case addressed this very matter. In this case, the father was convicted and imprisoned jail for continued failure to pay child support. In Sanjari v. State of Indiana, the parents divorced in 2000, and Father was ordered to pay child support in the amount of $239.00 per week and some other expenses for the Children1.
Father failed to regularly pay child support, and eventually stopped paying child support altogether. Father held a doctorate and had held jobs at several universities, but remained voluntarily unemployed or underemployed to avoid child support payments. Father also evaded a body attachment he knew had been issued. This is a tool used by the court to bring a person into court.
After being charged, a jury found Father guilty of two (2) counts of Class C Felony nonsupport and sentenced him to two (2) consecutive five (5) year sentences, totaling ten (10) years. The case went through the Court of Appeals and the Indiana Supreme Court, and was eventually remanded (sent back to the trial court) for resentencing due to double jeopardy (basically being convicted twice of the same crime).
When the case went back to the trial court, the trial court sentenced Father to eight (8) years of incarceration for the C Felony and two (2) years for the D Felony, for a total of ten (10) years. Father appealed, again, arguing this was double jeopardy, vindictive, and inappropriate. After review, the Court of Appeals upheld the trial court.
The consequences of failing to abide by a child support order can be severe including a felony conviction that results in imprisonment and removal of certain other legal rights. Based on the facts of the case and the positions of the parties, jail by contempt can be an option for some parents who continuously and willfully fail to follow an Order of the Court regarding child support. In extreme cases, the failure to pay child support may be criminal and result in a felony conviction. Be aware of any child support orders in your case and whether same are being properly followed, remembering if there is a legal basis to modify child support, it is only able to be modified from the date of a filing to modify. Overpayment made before a petition is filed is unable to be addressed.
We hope that this blog has been helpful in understanding child support orders and the potential consequences of willfully failing to pay same. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.