Child Support Contempt
By Slepkow, Slepkow & Associates, Inc.
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This article discusses in details under what circumstances a person will be sent to jail to compel compliance with child support orders. This article also explains other tools used by Rhode Island judges to compel payment of child support orders.
Child support contempt in Rhode Island
If a person violates a Rhode Island Family Court order by not paying child support, the parent with physical custody may file a motion to hold that person in contempt for failure to pay child support. A person accused of not paying child support has a right to a hearing. The obligor parent has the right to proper notice under the Rhode Island Family Court Rules.
If the person owed child support (the parent with physical placement / custody) is on AFDC Benefits (welfare) than payment may be owed to the state of Rhode Island. In that event, the motion may be initiated by the State of Rhode Island, Child Support Enforcement rather than the f ather or mother with physical custody of the minor child.
A Child Support contempt proceeding could be part of a Rhode Island divorce, child custody, Complaint for separate Maintenance, dcyf petition, child visitation, paternity or other type of Family Court legal action. If there is a potential for incarceration and a person cannot afford a Rhode Island Family Law lawyer / attorney then the Family Court must insure that the person has an attorney representing him or her. The Judge usually has a list of Court Appointed attorneys who are paid for by the state. Otherwise, the Court will appoint one of the lawyers from Rhode Island Legal Services to represent the person.
There is often an opportunity to settle the matter prior to any hearing in which a judge may find a person in willful contempt. A settlement typically may include any one of the following or a combination of the following or something different: the obligor agreeing to remain current, paying a lump sum, a payment plan, staying current in addition to an arrearage order, etc.
In some situations, the parent with physical custody or Child Support enforcement is unwilling to settle the matter and insists on a hearing.
If a person is found in technical contempt after a hearing, it means that the person has not complied with the child support order. However, the Court believes that the person had a legitimate reason or excuse for failure to pay, such as loss of job (being fired, laid off), decrease in income, disability, injured at work, unable to work, medical problems, or a myriad of other excuses or explanations. The judge also may not accept any of the above stated excuses as justification for failure to pay.
A person found to be in technical contempt will not be sentenced to the Adult Correctional Institution (ACI) (jail)! However, the person may be ordered to find employment, raise a lump sum, stay current and / or make payments on the arrearage, pay attorneys fees, make certain lump sum payments, obtain a second job etc.
Most Judges have little patience for people who do not support their children. If the person has an excuse for nonpayment it better be a good one or they may find themselves in Jail. The amount of arrears and the person's history for compliance or noncompliance is often crucial in a judge's determination! If a person has a long history of nonpayment then that person has a much higher likelihood to be held in willful contempt.
The more a person owes the more likelihood that the person will be held in willful contempt.
At a hearing the judge will look at all relevant supporting documentation that has been offered into evidence. The judge will almost always ask what the person can pay at that moment or whether they are able to immediately borrow money from friends or family. The Usual Dialogue is - "how much can you come up with to stay out of Jail and how quickly can you pay?" The RI Family Court judge may also be interested in whether a person has assets that he or she can sell.
If a person's circumstances change then they need to file a motion to modify or suspend their child support rather then not make the payments! Child support does not automatically modify upon circumstances changing. If a modification is granted then the modification will be retroactive to the date of filing of the motion to modify not the date the circumstances actually changed. This does not mean that a person can unilaterally change their child support when they file a motion. It means that the child support will run retroactive after the Family Court issues an order modifying the child support. Therefore, if a person loses their job, becomes disabled, their hours are reduced or their pay decreases they must immediately file a motion to modify.
Child support can only be changed or modified if a motion is filed and an order enters. In many instances the judge's response to a person's plea to not hold them in contempt because they lost their job or their income decreased will be something like: "you should have filed a motion to modify or suspend child support when your circumstances changed rather than not pay."
A finding of willful contempt means that the judge believes that a person is thumbing their nose at the Court or has no reasonable justification for nonpayment. It could result from the judge not believing that the stated excuse for nonpayment is a justifiable excuse. A finding of willful contempt could also mean the following: 1) the person has the ability to pay and has not made payment 2) the person has not made proper efforts to find suitable employment 3) the person is able to work yet either isn't working, is underemployed or not making proper efforts to find employment.
The judge may believe that the contempt is willful because the person is lying, exaggerating his excuse or that the person is not acting in good faith.
If a person is found in willful contempt for not paying Rhode Island child support, the person could be sentenced to the ACI from day to day. Contempt sanctions are technically not criminal proceedings! However, since the sanctions could lead to jail time, they are quasi criminal proceedings. Contempt proceedings are not technically criminal because they are intended to compel compliance with child support orders rather then punish for nonpayment!
If a person is sentenced to the ACI from day to day, then the judge of the Rhode Island Family court will usually state that upon payment of certain amount the person will be released from jail. In child support contempt proceedings there is always a ticket out of jail by making a certain payment. A person could be held in willful contempt and not be sentenced to the ACI.
Legal Notice per Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.
ABOUT THE AUTHOR: David Slepkow
David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, restraining orders, child support, custody and visitation. David has been practicing Law since 1997 and is licensed in Rhode Island , Massachusetts and Federal Court.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.