2013-05-15 / Columns

Child support issues can turn into criminal cases

by Kate Evans

Working out regular child support arrangements is an ongoing issue for many families locally.

Without regular and timely child support payments, custodial parents may be unable to provide all of the food, clothing, doctor’s visits, medicines, school supplies and other basic necessities involved in caring for a child’s health and welfare.

These parents may struggle to pay their electric, water or heat bills on time and face utility shutoffs. They may not be able to work because they can’t afford child care.

While custodial parents know they are entitled to financial help from their child’s other parent, they may be unaware of how to apply for child support or where to turn for help if payments aren’t made.

Non-custodial parents may not realize that owing overdue child support payments can be a felony offense in West Virginia or that the state can garnish their wages or take owed child support from federal and state tax refunds.

The state also has the power to deny, suspend, refuse to renew or restrict driver’s licenses, fishing and hunting licenses and professional or occupational licenses if more than six months of child support is owed.

Felony charge

It has always been a felony in West Virginia if someone is more than 12 months behind paying child support, Morgan County Prosecuting Attorney Debra McLaughlin said. Going six months without making child support payments is a misdemeanor.

Before 2009, anything over $8,000 in unpaid child support was also a felony, McLaughlin said.

If someone is not making any attempt to pay child support for 12 months, McLaughlin takes their wage history and case summary to the Grand Jury.

The jury will be asked to determine whether they’ll charge a non-paying parent with a felony criminal offense for failure to pay child support.

If a non-custodial parent is suddenly making less income and can’t afford to pay their child support, they can come back to court and seek to lower their support payments, McLaughlin said.

“If they do nothing and stop paying, that’s criminal,” she said.

Family Court can issue an arrest warrant and jail non-paying parents for 30 to 90 days if the judge finds them in civil contempt of their child support order.

“It’s amazing how people have the ability to pay child support when faced with jail,” McLaughlin said.

Generally, if the DHHR has filed contempt charges against a parent and they’re facing jail, the other parent and child aren’t getting support and the state is providing food stamps and other assistance, McLaughlin noted.

Often large sums are owed to the state with judgments in criminal felony child support cases and the rest is owed to the custodial parent.

Interest charged

West Virginia charges 5% interest on owed child support, said Donya Bennett, child support specialist III from the Morgan County DHHR office. The interest used to be 10%.

McLaughlin gets referrals directly from Bennett for child support cases to be reviewed for criminal prosecution.

McLaughlin also gets calls from custodial parents that say the other parent won’t pay child support. She contacts Bennett to review the case summary and child support payment history.

If some payments are being made, even if they aren’t for the full amount owed, they try to work with them.

Some parents get jobs that pay them cash to avoid paying child support and make sure there are no W-2 forms to report their income.

“These are the people we try to prosecute because they’re not paying and are avoiding the system,” McLaughlin said.

State laws, enforcement

The West Virginia State Legislature has laws governing the enforcement of child support payments and guidelines for how child support is calculated using both parents’ income.

The Bureau of Child Support Enforcement under the DHHR obtains and enforces child support orders, establishes paternity, collects and disperses support payments and locates parents that have a duty to pay child support.

It also cooperates with other states with sharing records and locating parents.

Automatic pay deduction

Child support payments can be automatically deducted from a non-custodial parent’s paycheck if they’re found to be working.

Unfortunately, some quit their job once they discover money is being taken out of their pay, McLaughlin said.

There are three groups of child support clients: those who are receiving child support faithfully, those who are getting some child support, but not the full amount and those who aren’t receiving anything, Bennett said. The latter group is not the largest group.

The number of child support cases fluctuates since they are always opening and closing new cases. Most child support cases involve fathers, but occasionally mothers owe back child support.

When custodial parents apply for cash assistance and medical assistance, they’re required to apply for child support through the DHHR, Bennett said.

The mother must identify the child’s father to get the help. The agency will pursue paternity testing if necessary.

Filing for support advised

Applying for child support is encouraged. It’s beneficial to both parties to have a record of child support payments, Bennett said.

There is a filing fee for applying, but if the applicant’s income is below a certain level, the court can waive the filing fee.

Sometimes a parent will make informal child support arrangements outside of the court system.

That can make the situation and criminal prosecution difficult since an agency isn’t monitoring payments that are being made and there are no receipts, McLaughlin said.

A hard situation

It’s hard to track parents down for support at times, Bennett said. Some jump from job to job or it’s hard to locate where they’re living.

Parties on both ends experience frustration with the custodial parent not receiving child support payments and the noncustodial parent having to pay support.

McLaughlin said it’s never easy running a household on one income. Running two households on one income is not any easier. If parents in both households are working, child care expenses can also be a factor.

A child’s right

It’s the child’s right to receive child support even though the money is paid to the custodial parent, McLaughlin noted.

Often McLaughlin will hear the non-custodial parent say “she’s not spending money on the kid.”

However, McLaughlin said that heat, water and food are valid things on which to spend child support money since they involve the care of the child.

Both parents are responsible for raising kids and supporting them, McLaughlin added.

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