Federal Laws for “Failure to Pay Child Support” in Nevada (18 U.S.C. § 228)

2. What are the penalties under 18 USC 228?

Non-payment of child support carries up to six months in Federal Prison and/or a fine if the following conditions are true:

1. it is the defendant’s first offense for non-payment; and
2. the defendant did not leave the state to avoid paying child support; and
3. the non-payment lasted for no more than two years, or the amount in arrears is no more than $10,000

Otherwise, non-payment of child support carries up to two years in prison and/or a fine.

In addition to fines and/or prison time, the court will order that defendant pay full restitution equal to the amount of the unpaid child support.²

3. How can I fight the charges?

Failing to pay child support is a crime under federal law only if the nonpayment is willful.³ Therefore, the most common defense is that any nonpayment was the result of an accident, a mistake, or that the defendant merely had no means to pay.

Federal courts presume that defendants are financially able to pay a legal child support obligation. However, this presumption may be rebutted such as by showing that the defendant either:

• lost his/her job and has not been able to find more work despite diligently looking for employment; or
• became too sick or disabled to work; or
• was arrested and did not have enough money in his/her account to continue paying child support⁴

As long as the U.S. Attorney’s Office cannot prove to the court beyond a reasonable doubt that the defendant willfully ceased paying child support, there should be no criminal liability.

4. Will I lose child custody?

The criminal court judge cannot make custody decisions. This is because child custody is a civil matter, not a criminal matter. But when family law judges make child custody determinations, they can take into account a parent’s non-payment of child support.⁵

5. How is Nevada law different?

The main difference between federal and Nevada state law for nonpayment of child support has to do with geography. Federal law does not apply unless the defendant resides in a different state from the child or the defendant escapes to another state in order to evade payment. Therefore, a non-paying parent in Nevada would be prosecuted under state law if the child also resides in Nevada.

The other difference between federal and Nevada state law regarding failure to pay child support has to do with the amount of money in question. In Nevada, a person may face prosecution even for missing one payment for a small amount of money. But federal law does not apply until the defendant gets behind more than $5,000 or has not paid for more than one year.

As with federal law, Nevada’s penalties for falling behind child support depends on the facts of the case:

Nonpayment of child support	Nevada penalties
First-time offense	Misdemeanor, if the defendant owes less than $10,000 in support: up to six months in jail, and/or up to $1,000 in fines Category C felony, if the defendant owes $10,000 or more in support 1 to 5 years in Nevada State Prison, and Up to $10,000 in fines (at the judge’s discretion)
Second- or subsequent offense	Misdemeanor, if the defendant owes less than $5,000 in support: up to six months in jail, and/or up to $1,000 in fines Category C felony, if the defendant owes $5,000 or more in support 1 to 5 years in state prison, and Up to $10,000 in fines (at the judge’s discretion)6

6. Can defendants face federal and Nevada charges for not paying child support?

Yes, as long as the parent and child do not both reside in Nevada. If a defendant is convicted in both federal and state courts, then he/she may serve the sentences consecutively (one after the other).⁷

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