ENFORCEMENT OF SUPPORT OBLIGATION
CS 844P-1 Criminal Nonsupport:
State Prosecution Procedures
09/86
Revised 10/07/22 Training Completed 10/21/22 Last Reviewed 11/04/24
18 U.S.C. 228; U.C.A. 15-1-4(3),
76-1-302,
76-3-201(1)(b),
76-7-201
and 76-7-202
Case
Criteria for State Prosecution
In considering a case for criminal nonsupport (CNS) state
prosecution, the CSS Agent, Attorney General’s Office (AGO) and others (e.g.,
Team Manager, Associate Regional Director (ARD), and Regional Director (RD)),
are responsible to review the case and determine if it meets the criteria
listed below.
1.
There is an administrative order based on stipulation or a
judicial order in place in which the support obligation is specified. Do NOT make a referral in which the sole
support order is an administrative default order or a participation order
unless the default or
participation order has been registered in court for civil enforcement.
NOTE: The purpose of this criterion is to ensure that NCP has knowledge
of the order specifying a support obligation.
This can be assumed if the order has been registered in court for civil
enforcement. If you have questions
regarding this criterion, contact the Office of Recovery Services (ORS), CNS
AGO liaison.
2.
The noncustodial parent (NCP) had notice of the order with proof
of service.
3.
The NCP has failed to voluntarily make full payments of support
for at least 18 out of the past 24 months, and/or the arrearage equals or
exceeds $10,000.00. Receipt of money
from tax offset or lien/levies does not count as voluntary collections.
4.
Reasonable and appropriate civil remedies, which include
administrative or judicial remedies, have been pursued or after consultation with
the civil AGO only, the attorney assigned to the case believes there is good reason to doubt that civil enforcement would be successful. If this occurs, you must document the
reason in the case narratives. Some examples
of this may include:
a.
The NCP immediately quits work after income withholding has been
implemented or his/her wages have been garnished;
b.
The NCP evades service of civil process for support enforcement;
or,
c.
The NCP has successfully hidden his/her assets so they cannot be
enforced upon civilly.
5.
The NCP’s parental rights have not been terminated; i.e., through
an adoption, and there is no pending action to terminate the NCP’s parental
rights.
6.
The NCP has a verified serviceable address; i.e., not a PO Box or
a general delivery address.
7.
The custodial parent (CP) is or was a
IV-A recipient or a Non-IV-A applicant; i.e., the case is currently an open
IV-D case.
8.
The ORS Agent has been in contact with the CP within the 30 days
prior to the case being referred, and that contact include verifying a
serviceable address and valid phone number for the CP.
9.
The CP is willing to cooperate by giving testimony in court.
10.
If another state’s child support agency is involved as the record
keeper of past due support, the ORS Agent has verified that the other state
will cooperate by attesting to the accuracy of the payment record, providing an
explanation of their procedures, and if necessary, having a representative
available to testify in court.
11.
At least one child was under the age of 18 at the time of the
alleged crime.
In addition to the criteria listed above, it may be appropriate to
consider the factors listed below.
Review the facts of the case with the regional criminal nonsupport (CNS)
contact. The regional CNS contact may
consult with the prosecuting attorney for assistance with evaluating the case
facts against case law and/or other precedence.
12.
The child is in needy circumstances or would be if not for the
support received from a source other than the NCP; i.e., the child is being
supported by the CP, CP’s current spouse, public assistance, etc.
13.
The NCP knowingly failed to provide the support. In determining whether or not the element of
the defendant “having a child” (U.C.A. 76-7-201) can be met, the prosecutor may
consider, among other things, whether or not a genetic test has been completed.
14.
The NCP failed to do the best that s/he could reasonably be
expected to do to provide support. The
NCP must have had the ability to provide support. This may be established by
proof of actual income and assets or by proof of the NCP’s ability to generate
income through employment, experience, training, education, and marketable
skills.
15.
The NCP does not have a long history of incarceration on multiple
occasions; i.e., long periods of time in prison.
16.
The NCP is not on public assistance; i.e., the NCP is open on IV-A
Cash Assistance (AF) or General Assistance (GF).
17.
The NCP is not physically or mentally disabled; i.e., the NCP is
receiving a Social Security disability benefit.
18.
The NCP meets the criteria for civil enforcement and s/he has
multiple cases with multiple CP’s.
NOTE: Before referring this type of case(s) to the
AGO for civil enforcement, send the cases to the CSS regional office contact
for a criminal prosecution screening.
In addition to the criteria listed
above, the prosecuting attorney may review the case for the factors listed
below.
19.
Statute of limitations: The
date of the offense is within:
a.
Two years for a misdemeanor; and,
b.
Four years for a felony.
The statute of limitations may be
extended for cases that the NCP resided outside of Utah.
20.
Utah has jurisdiction in that the NCP, the CP or the child(ren)
resided in Utah during the period of nonsupport being charged.
21.
There is a reasonable probability of conviction recognizing that
the standard of proof is beyond a reasonable doubt.
22.
If an issue arises that calls into question the competency of the
defendant or an insanity defense appears to be a possible issue, the prosecutor
will consult with the Children’s Justice Division supervisors.
Procedures
– Case Referral for State Prosecution
Once
the CSS Agent, Team Manager, AGO, ARD, and RD decide that a case meets the
criteria for criminal nonsupport, it should be referred to the appropriate
regional CNS contact (Ogden, Salt Lake City, and St. George – Team 24) for
consideration and possible Phase 1 Pre-filing Procedures.
For
details and more information on Phase I Pre-filing procedures, refer to CS 844P-2
Criminal Nonsupport: Phases of CNS Cases
& Procedures. The regional CNS
contact is responsible to review the referral and consult with the CNS AGO for
assistance in further evaluating the case for possible prosecution. The referral may be declined by either the
CSS regional CNS contact or the CNS attorney.
Initially a CNS referral is assigned to the criminal nonsupport
team (Team 24). The case will be worked
by the appropriate regional CNS contact (office closest to where the CP
resides). If the NCP has multiple cases with
multiple CPs, the cases will be worked by the office closest to where the NCP
resides.
1.
Before referring
a CNS case to the regional CNS contact, the post order agent is responsible to
review the case and complete all applicable procedures listed below.
a.
Ensure the
current support (CRS) charge is correct.
This includes making sure all child(ren) emancipations have been
completed accurately as of the date of the CNS referral.
b.
Check Content
Manager, narratives, and Utah Courts Xchange for any administrative or judicial
action that may be pending at the time of the CNS referral. Document the results of the search in the
case narratives.
c.
Review the case
for any new alerts and/or mail and complete the required action(s).
d.
Determine if the
NCP has multiple post order cases. If
so, refer all post order cases to the regional CNS contact, regardless of whether
those cases meet the CNS criteria.
i.
Does not agree –
document the reason(s) in the case narratives and continue with the next
appropriate enforcement action (e.g., civil enforcement).
ii.
Agrees – s/he is
responsible to approve the referral.
f.
Document the
results of your review in the case narrative and the reason why the case is
being referred for CNS consideration.
Summarize any pending actions that have not yet been documented.
g.
Send an email to
the regional CNS agent asking if the case may be referred for CNS.
i.
If the CNS agent
replies and indicates the case will not be accepted for CNS, continue to work
the case with all other appropriate enforcement action; or,
ii.
If the CNS agent
replies and indicates that the case will be accepted for CNS, transfer the case(s) to Team 24.
2.
If the AGO
identifies a potential case for criminal nonsupport, they will:
a.
Send an email to:
i.
The regional CNS
contact within their perspective office/region requesting a criminal
prosecution screening; and,
ii.
The agent
referring the case to the AGO, notifying him/her that the case should be
reviewed for criminal nonsupport.
3.
After the
regional CNS contact completes his/her review of the case, s/he will:
i.
Send the case to
the appropriate regional CNS contact, if necessary (e.g., the case was sent to
the regional CNS contact in the Ogden office, but the CP resides in St.
George).
ii.
Coordinate with
the AGO to determine the next appropriate action:
A.
Close the current
enforcement referral because the case will be referred for criminal nonsupport;
or,
B.
Continue working
the civil enforcement referral, because:
I.
It is appropriate
to work the two actions simultaneously (e.g., service, etc.); or,
II.
The case does not
meet the criteria for criminal nonsupport.
iii.
Notify the
referring agent that the case will be:
A.
Referred for
criminal nonsupport; and/or,
B.
Worked by the AGO
for civil enforcement.
For
procedures and more information on CNS referrals, refer to CS 844P-2.