My response:
You, as the child, were the "beneficiary" of the child support order, and does not have "legal standing" to go after Daddy. However, a child support order is akin to a contract between the court, your Mother, and your Daddy. Therefore, your Mother has "standing" to go after Daddy - - however, there may be a Statute of Limitations problem.
Federal prosecution/restitution orders (Child Support Recovery Act): Willful failure to pay child support is a state criminal offense. In addition, if there is interstate involvement, the obligor may be subject to federal prosecution (18 USCA § 228):
The Child Support Recovery Act (CSRA), as amended by the Deadbeat Parents Punishment Act of 1998, makes it a federal offense to:
· Willfully fail to pay support ordered by a court or administrative body with respect to a child who lives in another state if the arrearage has remained unpaid for longer than one year or is greater than $5,000 (United States v. Ballek (9th Cir. 1999) 170 F.3d 871, 873; see United States v. Mussari (9th Cir. 1996) 95 F.3d 787, 790-791--CSRA applies when either obligor moves out of state to avoid paying child support or custodial parent moves with children to another state); or
· Willfully fail to pay support ordered by a court or administrative body with respect to a child who lives in another state if the arrearage has remained unpaid for longer than two years or is greater than $10,000; or
· Travel in interstate or foreign commerce with the "intent to evade a support obligation" that has remained unpaid for longer than one year or is greater than $5,000. [18 USCA § 228(a) (emphasis added)]
(a) Constitutionality: The Ninth Circuit (like most other federal circuits) has upheld the constitutionality of the CSRA against Commerce Clause, Due Process Clause, Tenth Amendment and Thirteenth Amendment challenges. [United States v. Mussari (9th Cir. 1996) 95 F.3d 787, 790-791; United States v. Craig (9th Cir. 1999) 181 F.3d 1124, 1129; United States v. Ballek (9th Cir. 1999) 170 F.3d 871, 874-875]
1) Ex post facto limitation against retroactive application: However an obligor cannot be punished under the CSRA based on evidence of a willful nonpayment of support before the Act's effective date; doing so would violate the "ex post facto" clause (U.S. Const. Art. I, § 9 cl. 3). [United States v. Mussari (9th Cir. 1998) 152 F.3d 1156, 1158]
a) On the other hand, there is no ex post facto bar to a CSRA conviction based on the accrual of arrearages before the Act's effective date . . . so long as the willful nonpayment occurred after its enactment. [United States v. Black (7th Cir. 1997) 125 F.3d 454, 466-467, cert.den. (1998) 523 U.S. 1033]
b) The Deadbeat Parents Punishment Act (enacted in 1998) amended the CSRA to provide for enhanced punishment when the arrearage remains unpaid for longer than two years or exceeds $10,000 (18 USCA § 228(a)(3) & (c)(2)). By analogy to Black, supra, applying that provision to arrearages accrued before enactment of the DPPA does not violate the ex post facto clause . . . because the DPPA did not criminalize the mere accrual of a more-than-$10,000 arrearage but, rather, the obligor's post-DPPA willful failure to pay it. [United States v. Russell (8th Cir. 1999) 186 F.3d 883, 885-887]
(b) "Willful" failure to pay: An obligor has "willfully" failed to pay a child support order within the meaning of the CSRA if (with knowledge of the order) he or she either (i) has the money to satisfy the obligation but refuses to use it; or (ii) does not have the money to satisfy the obligation but also has failed to take advantage of available lawful means of obtaining the money--i.e., he or she has refused to seek and accept gainful employment "or take other lawful steps to obtain the necessary funds." [United States v. Ballek (9th Cir. 1999) 170 F.3d 871, 873]
1) Motive irrelevant: The obligor's motive for the failure to seek and accept gainful employment (or otherwise pursue lawful means for obtaining the money) is immaterial. "It is just as much a violation of the CSRA for a non-custodial parent to fail to pay child support where his refusal to work is motivated by sloth, a change of lifestyles or pursuit of new career objectives." [United States v. Ballek, supra, 170 F.3d at 875--government need not prove obligor's failure to accept gainful employment was caused by desire to withhold support payments "or any similar evil motive"]
2) Impact--burden on financially-challenged obligor to seek support modification: It follows that obligors who contend they are unable to pay child support (or have otherwise suffered a change of circumstances) bear the burden of seeking a modification of the support order in state family court; the issue cannot be raised in the federal CSRA prosecution.
An obligor who does not obtain a reduction of the order because of inability to pay "will almost certainly be engaged in willful defiance of the state court's child support order." [United States v. Ballek, supra, 170 F.3d at 873, 875; United States v. Craig (9th Cir. 1999) 181 F.3d 1124, 1128, 1129--inability to pay also irrelevant to CSRA restitution order (rejecting contrary dictum in United States v. Mussari (9th Cir. 1998) 152 F.3d 1156, 1157); see also United States v. Harrison (8th Cir. 1999) 188 F.3d 985, 987--obligor's pending support modification motion does not bar CSRA conviction based on pre-motion arrearages]
3) Knowledge of CSRA violation not required: A finding of "willful" nonpayment under the CSRA does not require proof the obligor knew he or she was violating the Act. Rather, the prosecution need only show defendant knew he or she was violating a state court or administrative order imposing a child support obligation. [United States v. Mattice (2nd Cir. 1999) 186 F.3d 219, 226]
IAAL
------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."
