It is a federal crime to willfully stop paying child support for a minor living in a separate state if the non-payment has lasted for more than one year or amounts to over $5,000. Penalties carry full restitution as well as fines and/or six months to two years of prison, depending on the case. And if the defendant or child resides in Nevada, defendants can face state charges for nonpayment of child support as well.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. When is not paying child support a federal crime?
- 2. What are the penalties under 18 USC 228?
- 3. How can I fight the charges?
- 4. Will I lose child custody?
- 5. How is Nevada state law different?
- 6. Can defendants face federal and Nevada state charges for not paying child support?
1. When is not paying child support a federal crime?
Non-payment of child support becomes a federal crime when:
- the parent willfully did not pay child support for a child who lives in another state – or the parent traveled to another state with the intent to avoid paying child support; and
- the non-payment has lasted for longer than one year or amounts to more than $5,0001
Consequently, federal court has jurisdiction only if the situation involves more than one state:
Example: Mike lives in Henderson, NV, and his daughter lives in Laughlin, NV. Mike deliberately dodges his child support payments for over a year. If caught, he may be booked at Henderson NV Detention Center on state charges for deliberately not paying child support. He should not face federal charges because Mike lived in the same state as his daughter, and he did not travel with the intent to avoid paying child support.
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:
- it is the defendant’s first offense for non-payment; and
- the defendant did not leave the state to avoid paying child support; and
- 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 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
|First-time offense||Misdemeanor, if the defendant owes less than $10,000 in support: |
Category C felony, if the defendant owes $10,000 or more in support
|Second- or subsequent offense||Misdemeanor, if the defendant owes less than $5,000 in support: |
Category C felony, if the defendant owes $5,000 or more in support
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
- 18 USC 228(a).
- 18 USC 228; see also United States v. Stephens, (9th Cir. 2004) 374 F.3d 867.
- 18 USC 228(c) & (d); see also United States v. Harrison, (8th Cir. 1999) 188 F.3d 985.
- See 18 USC 228(b).
- See, e.g., NRS 125C.003.
- NRS 201.020.
- See 18 U.S.C. § 3584.