What to Do When You’re Not Being Paid Child Support
If you’re the parent of a child, and the child’s non-custodial parent owes child support and is not paying, this can be very frustrating. Fortunately, Oklahoma law, and federal law, provide remedies for parents who are not receiving their due child support.
First, Determine How Much You are Owed
Before attempting to collect child support, look at every child support order that you have to determine how much you are owed.
If you do not have a child support order, you need to get a child support order in place. To see how to get a child support order, click on my earlier post, “How to File for and Collect Child Support in Oklahoma.” Even if there is no child support order in place, a parent has a duty under the law to support his child. If a parent has not paid child support consistent with his financial ability for 12 consecutive months out of the last 14 months, your spouse may adopt the child without the parent’s consent. See “Adoption without Consent” below.
If you have a child support order in place, there should be, written on the order, an amount of money you are entitled to receive every month. Look at this number. Then, compare this number with the amount that you have actually been paid. If you are owed child support, it’s usually a good idea to keep a record of how much you are being paid and when you are paid.
Once you compare the amount on the child support order with the amount you are being paid, you have an idea of how much you are owed.
Collecting Child Support
The simplest way of collecting child support, without going to court, is to work out an agreement with the non-custodial parent. This is almost always faster and cheaper than a court battle.
Facilitate Conversation with the Help of an Attorney
Sometimes, the relationship between divorced or separated parents who are no longer together is so acrimonious that you will not be able to communicate with the other parent. If you can’t communicate with the other parent, then you may want to hire a lawyer, who will call the other parent and attempt to work out a solution. This may work, because, if the non-custodial parent won’t communicate with you, he may communicate with a lawyer, who is an outside third party. From my own practice, I’ve seen many parents, who would not communicate with the other parent, communicate with me and work out a settlement.
Find a Lawyer Who Prefers to Settle Out of Court
If you hire a lawyer, ask your lawyer specifically if he will first try to work out a deal outside of court before going to court. Some lawyers will go to court no matter what. The Persaud Law Office generally prefers to settle matters out of court.
You (or your lawyer) may also be able to go to mediation. In mediation, you and your lawyer and the other parent and his lawyer (if he has one) will meet with a third party called a mediator. The mediator is neutral, but he is not like a judge and can’t order anyone to do anything. But, a good mediator can guide the parties to a settlement. For more information on mediation, click here.
If you are able to settle a child support matter out of court, your lawyer can prepare a written agreement for how the child support is to be paid off. You, and the non-custodial parent, can then sign this agreement, and then submit this agreement to a judge, for the judge to sign. Once the judge signs the agreement, the agreement is legally binding.
If You Have to Go to Court But, despite all of your efforts to collect child support without court action, you often can’t get your spouse to pay child support without going to court. If you go to court, you would file an “Application for Contempt Citation.” An Application for Contempt Citation is a document where you ask the judge to hold the non-paying parent in contempt of court. Contempt of court is the willful disobedience of a court order. If a court (or the Department of Human Services) ordered a parent to pay child support, and he did not pay, the parent is guilty of contempt of court. Contempt of court is a crime, punishable by up to a $500 fine, and/or six months in jail.
In a child support case, a judge may hold a parent who fails to pay child support in contempt of court. The judge may also:
Create a “purge plan” as to how the parent is to pay off the arrearage
Place a lien on the parent’s property
Garnish money for the parent’s paycheck, bank account, or anywhere else the parent has money.
In any court proceeding for contempt, the parent will have the right to a trial before a judge. The parent will have the right to call witnesses; the parent may demand a jury trial. The parent will have the right to be represented by a lawyer. Because contempt is a criminal matter, if the parent cannot afford a lawyer, the state will have to provide him with a free lawyer.
Other Remedies for Failure to Pay Child Support
If a parent fails to pay child support, they could face criminal prosecution, denial of a passport, revocation of a recreational license, or the adoption of their child without their consent.
The state may prosecute a parent who does not pay child support. If the state files criminal charges, your lawyer wouldn’t file the charges; the state’s district attorney would file them. You (or your attorney) may report non-payment of child support to the district attorney so that the district attorney can file charges.
Also, the federal government may prosecute a parent if the parent’s failure to pay child support rises to the level of a federal crime. A parent is guilty of a federal crime if the parent has:
Travelled in interstate or foreign commerce with the intent to avoid paying child support, if he has not paid child support for over one year, or his arrearage is greater than $5,000
Failed to pay child support for more than two years, or failed to pay more than $10,000 in child support, for a child who lives in another state
If a parent has violated federal law in failing to pay child support, the U.S. Attorney’s Office will handle the matter. A federal court may fine the parent up to $250,000, or sentence him to up to two years in federal prison. If you believe that the non-custodial parent of your child is guilty of a federal offense, ask your lawyer to contact the U.S. Attorney’s office.
Denial of Passport
If a parent has failed to pay child support in an amount exceeding $2,500, the state child support agency is supposed to report the matter to the U.S. Department of Health and Human Services (HHS). Following this report, the HHS is supposed to report the matter to the State Department. The State Department is to then deny a passport application to the parent until HHS certifies to the State Department that the parent has satisfied the arrearage.
Revocation of Recreational License
DHS, or a court, may revoke the recreational license (for example, a hunting or fishing license) of a parent who does not pay child support. Ask your lawyer to bring this up in a contempt hearing, or in a hearing before DHS child support court.
Adoption without Consent
If a parent has not paid child support, consistent with his income, for 12 consecutive months out of the last 14 months, the child may be adopted without the parent’s consent. If you have remarried, your spouse may initiate a stepparent adoption. The procedure for an adoption without consent is:
File a petition for adoption, in court.
At the same time, file an application to adopt without consent.
Ask the judge for a hearing date.
Serve the petition, application, and notice of the hearing date on the parent.
The parent will then have the right to appear at the hearing. The parent has the right to an attorney, and to call witnesses. (A parent does not have the right to a jury trial in an adoption case.) At the trial, the judge will decide whether the parent has, in fact, failed to pay child support. If the judge decides that the parent has failed to support the child 12 consecutive months out of the 14 months immediately prior to the filing of the petition, then the judge should order that your spouse may adopt the child without the parent’s consent.
For more information on adoption, see my post, “Adoption in Oklahoma.”
Are You Owed Back Child Support?
If you are owed back child support, the situation may not be as hopeless as it seems. A competent family lawyer can guide you to a solution that is best for you and your child. If you have questions about back child support, the Persaud Law Office can help you. Contact us today. Your first consultation will be free.