Failure to pay or comply with a child support order can result in serious consequences, both civil and criminal. The initiation of a civil contempt proceeding is generally the most common enforcement tool. In a contempt proceeding, the trial court will hold an evidentiary hearing to determine whether a parent “willfully” failed to comply with the court’s trial court order. Failure to comply with a child support is typically found to be “willful” when a parent has the ability to pay his or her child support obligation and voluntarily chooses not to do so.
Procedure for Civil Contempt
In order to initiate a contempt proceeding, the child support recipient must file a motion that contains all of the essential facts relating to the opposing party’s failure to comply with a child support order. The contempt motion must be served on the opposing party along with a notice of hearing that specifies the time and date of the contempt hearing. The notice of hearing must also contain the following language:
FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD
At the contempt hearing, the court must make an express finding that the party who is alleged to be in contempt of court received proper notice of the motion and notice of hearing. If proper notice was given, the court will thereafter determine whether the moving party has established that a prior child support order was entered and that the opposing party has failed to pay all or part of his or her child support obligation.
Burden of Proof in a Contempt Proceeding
The moving party does not have the burden of proving willfulness. This is because a presumption of willfulness arises upon a showing that the payor defaulted in making his or her payments. In other words, the burden of proving that failure to pay child support was not willful is on the child support obligor.
Remedies for Failure to Pay Child Support
If the trial court holds a parent in contempt for failure to comply with an existing child support order, serious sanctions, including jail time, can be imposed. Failure to pay child support can also result in the suspension of an individual’s driver’s license and/or business and professional licenses. Liens can be placed on an individual’s bank account and other assets until any past-due child support has been paid. Federal income tax refunds can also be intercepted in order to satisfy any child support arrearages.
