ENFORCEMENT OF SUPPORT OBLIGATION

ENFORCEMENT OF SUPPORT OBLIGATION

09/86 Revised 11/30/22 Training Completed 12/14/22 Last Reviewed 11/04/24

18 U.S.C. 228; 76-1-302, 76-1-304, 76-3-204, 76-3-203, 76-3-301, 76-7-201, 76-7-202, 77-32b-103, 77-30-23, 77-38b-205

Criminal Nonsupport Definition under State Law

76-7-201 Criminal nonsupport.

(1) A person commits criminal nonsupport if, having a spouse, a child, or children under the age of 18 years, the person knowingly fails to provide for the support of a spouse, child, or children when any one of them:

(a) is in needy circumstances; or

(b) would be in needy circumstances but for support received from a source other than the defendant or paid on the defendant's behalf.

(2) Except as provided in Subsection (3), criminal nonsupport is a class A misdemeanor.

(3) Criminal nonsupport is a felony of the third degree if the defendant:

(a) has been convicted one or more times of nonsupport, whether in this state, any other state, or any court of the United States;

](b) committed the offense while residing outside of Utah; or

(c) commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000.

(4) For purposes of this section "child" includes a child born out of wedlock whose paternity has been admitted by the defendant or has been established in a civil suit.

(5)(a) In a prosecution for criminal nonsupport under this section, it is an affirmative defense that the defendant is unable to provide support. Voluntary unemployment or underemployment by the defendant does not give rise to that defense.

(b) Not less than 20 days before trial the defendant shall file and serve on the prosecuting attorney a notice, in writing, of the defendant's intention to claim the affirmative defense of inability to provide support. The notice shall specifically identify the factual basis for the defense and the names and addresses of the witnesses who the defendant proposes to examine in order to establish the defense.

(c) Not more than 10 days after receipt of the notice described in Subsection (5)(b), or at such other time as the court may direct, the prosecuting attorney shall file and serve the defendant with a notice containing the names and addresses of the witnesses who the state proposes to examine in order to contradict or rebut the defendant's claim.

(d) Failure to comply with the requirements of Subsection (5)(b) or (5)(c) entitles the opposing party to a continuance to allow for preparation. If the court finds that a party's failure to comply is the result of bad faith, it may impose appropriate sanctions.

(6) Criminal nonsupport is a continuing offense.”

State Criminal Nonsupport Criteria

The noncustodial parent (NCP) commits the offense of criminal nonsupport (CNS) if:

1. The child(ren) is under eighteen years of age;

2. The child(ren) is in needy circumstances or the child(ren) would be in needy circumstances if not for the support received from a source other than the NCP (e.g., the child is being supported by the custodial parent’s (CP) current spouse); and,

3. The NCP knowingly fails to provide support for the child.

NOTE: The State criminal code allows criminal prosecution for nonpayment of ordered medical support because medical support falls within the statutory definition of child support as a financial obligation ordered for the support of a child. Ordered medical support includes current payments, all accrued arrearages, sum certain judgments, and amounts owed for uninsured medical expenses.

Except as noted below, criminal nonsupport is a class A misdemeanor in Utah. The maximum penalty for a class A misdemeanor conviction is a $2,500.00 fine (pursuant to U.C.A. 76-3-301(1)(c)), or jail time not to exceed 364 days (pursuant to U.C.A. 76-3-204(1)), or both.

For details and more information on criminal nonsupport criteria, refer to CS 844P-1 Criminal Nonsupport: State Prosecution Procedures.

Criminal Nonsupport – Third Degree Felony

Criminal nonsupport is a third-degree felony in Utah if:

1. The NCP has previously been convicted of nonsupport in any state or federal court;

2. The NCP has committed the offense while residing outside of Utah;

3. The NCP commits the offense of nonsupport in each of 18 months within any 24-month period; or,

4. The total arrearage is in excess of $10,000.

The penalty for a third-degree felony is a maximum of five years in prison (pursuant to U.C.A. 76-3-203(3)), a $5,000.00 fine (pursuant to U.C.A. 76-3-301(1)(b)), or both. For details and more information on criminal nonsupport criteria, refer to CS 844P-1.

Related Volume 2 Criminal Nonsupport Sections

For more information on criminal nonsupport and procedures, refer to the appropriate section(s) of criminal nonsupport policy listed below.

1. CS 844P-1 Criminal Nonsupport: State Prosecution Procedures;

2. CS 844P-2 Criminal Nonsupport: Phases of CNS Cases & Procedures; and,

3. CS 844P-3 Criminal Nonsupport: Federal Prosecution Procedures.

Utah Statute of Limitations

When filing the criminal nonsupport charges, the Utah statute of limitations only allows the office to go back two years for a misdemeanor and four years for a felony.

U.C.A. 76-1-302:

“(1) Except as otherwise provided, a prosecution for:

(a) a felony or negligent homicide shall be commenced within four years after it is committed. . . .

(b) a misdemeanor other than negligent homicide shall be commenced within two years after it is committed; . . . .”

NOTE: Pursuant to U.C.A. 76-7-201(6), “Criminal nonsupport is a continuing offense.”

Pursuant to U.C.A. 76-1-304(1), the limitation period does not run against the NCP during any period of time when the NCP is out of state. The prosecutor may make a determination about the limitation period.

Court Ordered Payment Schedule

Pursuant to U.C.A. 77-38b-205, once the NCP is convicted of criminal nonsupport the court will enter a restitution order:

“(2)(a) Upon an order for a defendant to pay restitution under Subsection (1), the court shall:

(i) enter an order to establish a criminal accounts receivable as described in Section 77-32b-103; and

(ii) establish a payment schedule for the criminal accounts receivable as described in Section 77-32b-103.”

Criminal Nonsupport Case Responsibility

Within the AGO, the responsibility for prosecution of CNS cases rests with the Justice Division (JD) and its CNS unit. In order that the sanctions available through criminal prosecution are available throughout the state of Utah, a process has been set up in cooperation with the Child and Family Support (CFS), Division of the Attorney General’s Office, whereby selected CFS attorneys assist with criminal nonsupport cases. An agreement was reached between the JD, CFS, and the Office of Recovery Services (ORS), wherein CFS designated attorneys and staff members handle criminal nonsupport cases. Referrals from Child Support Services (CSS) are made directly to the designated attorneys.

CNS prosecuting attorneys will attempt to get a restitution order for the full amount of arrears and interest owed in each case. “Full amount” means the amount of arrears; i.e., principal, owed to both the custodial parent (CP) and the State, with interest owed to the custodial parent at the statutory rate.

Non-CSS Criminal Nonsupport Cases

The AGO may receive a request from a private citizen to criminally pursue an NCP for nonsupport. If CSS does not make the referral, the criminal nonsupport attorney at the AGO will decide whether to pursue the case. If the AGO agrees to pursue the case, the AGO will work the case with funds from their own budget instead of billing the costs to CSS. If CSS has a case on the NCP, the AGO may request information from the case record. CSS may provide information from the record within the confines of GRAMA and Safeguarding policies and procedures. For procedures and more information on GRAMA, refer to CS 075P Safeguarding Case Information, and CS 076P Release of Case Information Based on Parent-time Order.

Out-of-State Noncustodial Parents

Out-of-state NCP’s charged with criminal nonsupport may be extradited pursuant to U.C.A. 77-30-23, or surrender themselves voluntarily when faced with the threat of extradition. Permission to list a defendant on the National Crime Information Center (NCIC) must be obtained from the CNS section director. When a defendant has been arrested out of state on a CNS warrant listed on NCIC, the prosecutor should notify the CNS section director, and keep in contact with the AGO extradition coordinator as well as the investigator assigned to extraditions. These individuals will take into account the potential cost of transporting defendants in deciding whether to proceed. These transportation costs are not recouped from CSS funds.