Criminal Child Support
CRIMINAL CHILD SUPPORT ENFORCEMENT FAQ's
What is criminal child support enforcement?
In Arizona, “any parent of a minor child who knowingly fails to furnish reasonable support for the parent's child is guilty of a class 6 felony.” A.R.S. §25-511.
Is criminal child support enforcement the same as the child support enforcement services provided by the Child Support Division of the Gila County Attorney’s Office?
No. The Child Support Division of the Gila County Attorney’s Office employs civil and administrative remedies in order to enforce civil child support orders. These remedies include wage assignments, state and federal tax intercepts, lottery intercepts, bank account seizures, civil contempt proceedings and credit bureau reporting, among others. What all of these remedies have in common is that they are all non-criminal. In other words, although they can have severe financial consequences and even sometimes result in someone who is ordered to pay child support being incarcerated for a period of time, none of them can result in the person paying support being convicted of a crime. On the other hand, the criminal charge of non-support can result in a person being convicted of a felony, sentenced to prison or probation, and losing the right to vote or possess firearms.
How does the Gila County Attorney’s Office decide when to charge someone with criminal non-support?
The Child Support Division of the Gila County Attorney’s Office always attempts to enforce child support obligations civilly or administratively first. Unfortunately, there are some parents who, in spite of the best efforts of the Child Support Division, still will not comply with their child support obligations. Many of these parents’ cases are referred to a criminal prosecutor in the County Attorney’s Office. The criminal prosecutor reviews the case to determine whether criminal charges are warranted.
If criminal non-support charges are brought against the person who owes me money, can the Child Support Division still enforce my case civilly or administratively?
Yes. The County Attorney’s Office is authorized to use “all civil and criminal remedies provided by law” to enforce child support. A.R.S. § 25-509. Therefore, the Child Support Division can employ its civil and administrative remedies at the same time that a person is being prosecuted criminally for non-support. Because of this, custodial parents who have questions relating to civil or administrative enforcement should call the Child Support Division while questions involving plea agreements, sentencing recommendations or criminal restitution should be directed to the Gila County Attorney’s Victim Services Department.
I just received a copy of an indictment alleging that the person who owes me child support has committed criminal non-support, but the dates in the indictment are not the same as the dates he owes me support for. Why?
Keeping in mind that criminal and civil enforcement of support are separate, there are many reasons why the dates on the indictment may not match the entire period for which child support is due. First, there is a seven year statute of limitations on this kind of criminal action so a non-support indictment will not normally go back more than seven years. On the other hand, in a civil child support case, once a child support arrearage is reduced to a written civil judgment, there is no statute of limitations. Second, the criminal non-support statute only makes it a crime to fail to provide reasonable support. It is possible in some cases that it could be reasonable for a parent to only make partial payments. In most cases, juries decide what reasonable payments are. Many of the worst offenders of the criminal non-support statute have, on occasion, made some payments of child support. These periods of partial payments are often left out of the criminal indictment. Finally, if the non-custodial parent was incarcerated or injured for a period of time, these periods are usually omitted from the indictment.
If the criminal indictment does not cover the entire period for which the non-custodial parent owes me support, does he still have to pay me for the periods not covered?
Yes. Remember the criminal and civil procedures are separate. Any child support arrearage that is civilly enforceable is still civilly enforceable even if it is not covered in a criminal non-support charge. The fact that a period is not covered in the criminal indictment only means that the State is not seeking criminal punishment for that period. It does not mean that support owed during that period is not enforceable.
Am I allowed to make a statement to the Court when my ex-spouse is sentenced for criminal nonsupport?
Yes, as a crime victim you are entitled to make a statement to the Court at the time of sentencing although you are not required to do so. You may also send the judge a letter at sentencing if you desire.
The amount of child support the non-custodial parent owes me is greater than the amount of criminal restitution he or she will have to pay in the plea agreement. Why?
Criminal restitution is required to reimburse victims of crimes for their financial losses as result of crime. In criminal non-support cases, restitution will be ordered for the child support not paid during the period of time covered in the indictment. This period will often be shorter than the period of time the non-custodial parent owes support for. Therefore, the amount of criminal restitution will also often be less than the total child support owed. Also, accrued interest on child support arrearages is not included in a criminal restitution judgment. Importantly, the amount of child support arrearages not covered in the criminal restitution judgment is not forgiven. It is still due and enforceable in civil court.
I just received a copy of a plea agreement that was offered to the non-custodial parent. The agreement stipulates that if he or she will plead guilty to non-support of one of our children, the non-support charges for our other children will be dismissed. Why?
Most criminal cases are resolved by plea agreements that allow a criminal defendant to admit guilt to a charge in exchange for dismissal of other charges or agreed upon punishment or both. Criminal non-support cases are no different. In most criminal non-support cases, the State’s primary objective is to get the non-custodial parent under the supervision of the Superior Court’s Probation Department. That can be accomplished whether a non-custodial parent pleads guilty to one or one hundred counts of criminal non-support.
If the charges for the other children are dropped, does the non-custodial parent still have to pay child support for them?
Yes. Remember the criminal and civil procedures are separate. If the non-custodial parent was obligated to pay child support in civil court before criminal non-support charges were dropped, he is still obligated to pay support for those children after non-support charges are dropped. The fact that the charges are dropped only means he will not be criminally punished for his non-support of those specific children. It in no way forgives his obligation to support those children.
The plea agreement that was offered does not require the non-custodial parent to go to prison. Why?
Criminal non-support is a class 6 felony, the least severe level of felonies in Arizona. Most people who are convicted of class 6 felonies for the first time are placed on probation and are not sent to prison. This is true as well in criminal non-support cases.
Is there any advantage to having the non-custodial parent on probation instead of having him or her sent to prison?
Yes. When non-custodial parents are sent to prison for failing to pay their child support obligation, custodial parents typically only receive token amounts of child support during their term of imprisonment (a couple of dollars per month at most). Then, when they are released from prison, offenders spend a brief period of time on community supervision (parole) and then are released to the general population under no one’s supervision. On the other hand, if non-custodial parents are placed on probation, they are under the supervision of the Superior Court’s Probation Department usually for a period of one to three years. During this time they are required to work and pay child support. If they do not pay child support, their probation can be revoked and they can then be re-sentenced to prison anyway. Therefore, a custodial parent is more likely to receive child support payments now and in the future if a non-custodial parent is placed on probation.
If I received public assistance and the non-custodial parent pays criminal restitution as part of his criminal non-support probation, will the government keep some of the restitution?
Maybe. Criminal restitution in criminal non-support cases is paid to the child support clearinghouse in Phoenix and is applied as any other child support payment would be applied. If some of the child support arrearages in the civil case are assigned to the state because you have received public assistance in the past, then some of the money paid as restitution may go to the government to reimburse the costs of public assistance that you already received. If you have questions regarding precisely how a payment will be or has been distributed, please contact the Child Support Division.
Gila County Attorney's Office
Division of Child Support
157 S. Broad St. Globe, AZ 85501
Phone: 928-425-4464 Toll Free: 1-800-717-2629 Fax: 928-425-7520