Failure to Pay Child Support: Criminal Contempt
Child support is often a contentious issue between divorced parents. Often the person who is owed support will feel like the parent who fails to pays child support is purposefully withholding the funds to punish the other parent or “get even” with them in some manner. Likewise, the parent who pays support might feel like the recipient is spending the money on something or someone else rather than using it to support the child. What parents sometimes fail to take into account is that the support is ordered because it is in the best interest of the child or children, and that once the order to pay child support is handed down by the court it must be obeyed like any other court order. Those who fail to obey a child-support order risk being found in contempt of court.
For a person to be held in contempt of court for failing to obey a child-support order, the prosecution must prove that the person had the ability to pay the child support in East Tennessee at the time it was due and that his or her failure to pay the child support was willful. While it may seem sensible to put the burden of proof on the party who is claiming inability to pay, Tennessee courts have held that a criminal contempt proceeding should be conducted like any other criminal trial and thus the burden is on the prosecution to prove beyond a reasonable doubt that the accused had the ability to pay and willfully failed to do so.
Parties who are unable to meet their child support obligations should be proactive in seeking a resolution rather than waiting until criminal contempt proceedings are initiated. If there has been a material change in circumstances that has limited your ability to pay, you may be able to get the support order modified to a more reasonable amount. If you wait until contempt proceedings are initiated, you may be found guilty of contempt and ordered to serve up to six months in jail under Tenn. Code Ann. Section 36-5-104. Additionally, you may be ordered by the court to perform public service work, like removing litter from some public area. Legitimate inability to pay is not a crime, but willful refusal to do so can cost you up to six months in jail. If you are unable to pay, you are much better off contacting someone in order to get the situation cleared up than waiting for contempt proceedings to be filed against you and taking your chances trying to convince the court of your inability to pay.
Sources: In re A.G., 34 TAM 43-17, 9/28/09, MS, Cottrell, 11 pages.
