Failure to Pay Child Support in Nevada – Federal Law Recap (18 U.S.C. 228)
Although Nevada has its own rules, it is also a Federal Crime to end your payments of child support for any minor living in a separate state if the non-payment has occurred for more than a year. The other threshold is if the amounts of non payments have exceeded more than $5,000. These all would be due to willfully ending child support payments.
Penalties for stopping your child support payments include:
- You would still be required to pay past payments so full restitution.
- Various fines would most likely be charged.
- Prison time would also most likely be sentenced which could range from six months to two full years.
In addition to Federal laws, state laws may also be charged if the child or the defendant reside in the state of Nevada and there is a continuation of a failure to pay child support.
The following pages will discuss some of the following points regarding child support payments:
- When would a Federal crime be charged for not making payments?
- Under code 18 USC 228, what are the penalties for violation?
- If you are accused of not paying your child support, what can you do to defend yourself?
- If I am convicted or quit making my payments, will I lose child custody?
- What differentiates Nevada state law from other laws?
- Can a defendant face both Federal charges and Nevada state laws?
What constitutes a Federal Crime for not making child support payments?
Federal Crime charges could be filed if:
- The child support non-payments exceed the monetary threshold of $5,000 or the non-payments have occurred for longer than one year.
- If the parent voluntarily traveled to another state with the intent to bypass child support payments (you cannot avoid them by moving) or if the parent or guardian did not pay for child support for a child who lives in a different state. The lack of payments would have to be done willfully.
Federal Court would only come into play if more than one state is involved. If the situation only involves one single state then only a state charge would be made. An example would be:
Kenny resides in Las Vegas but his young daughter lives in Reno, NV. Kenny stops making his child support payments for more than a year. If he is caught then he would most likely be arrested and booked at the Clark County Detention Center (CCDC) with state charges being filed against him. Because both he and his daughter reside in the state of Nevada and because he did not leave to avoid making payments, Federal charges would not be filed.
If Federal charges were filed and a defendant had to go to trial, the hearings would occur at the Lloyd D. George Federal Courthouse if in Las Vegas or if in Reno the trial would be held at the Bruce R. Thompson Federal Courthouse.
Penalties for violation of 18 USC 228
If the following requirements are satisfied, there could potentially be a penalty of six months of Federal prison confinement for not paying child support. A variety of fines or taxes may also be levied:
- If it is the defendants first violation for non payment and
- The defendant did not leave the state they reside in with the intent to avoid making their child support payments, and
- If the defendant stopped making payments for longer than two full years or if the amount of non payments is in arrears by more than $10,000.
If these conditions are not met then non-payment for agreed upon child support could carry up to two years in prison along with a fine and possible restitution. The judge would be the one to order the full restitution which would equate to the outstanding balance of child support payments owed.
How can I defend myself if I am charged with non payments of child support?
Only willful nonpayment of child support is considered a crime under Federal law. Because of that requirement, the most common way to defend yourself is to make the case that the non-payment was due to a mistake or accident. A case could also be made if the defendant had no means to pay (examples could be out of work or a frozen bank account).
Typically, a Federal Court will presume that a defendant are always financially able to make their legally endorsed child support payments. So, it is up to the defense attorneys to show the courts that they are wrong. The most common ways to do this are to show that:
- The defendant does not have a job and has not been able to find employment even though they have been diligently seeking employment.
- The defendant has been disabled or has become too sick to work.
- The defendant was arrested or incarcerated and did not have sufficient funds in their banking account to continue to make their child support payments.
Much like other charges, it is up to the prosecution to prove beyond a reasonable doubt that the defendant did not pay their child support willfully. If the defense attorneys can make their case, there would be no criminal liability.
Will you lose custody of your child if you stop making support payments?
The judge in a criminal case is unable to make decisions regarding child custody. Child custody is considered a civil manner and therefore is handled by a family law judge who does not decide on criminal charges. When a family judge makes decisions, they do so on a variety of evidence, one of which includes the track record of child support payments. So by not paying child support, your odds of losing custody of your child does increase.
How are child support laws different in the state of Nevada compared to other jurisdictions?
Geography is the biggest factor in regards to Nevada state law and Federal laws for child support. As previously discussed, Federal law is not relevant unless the parent and child live in different states or the parent retreats to a new state with the intent to avoid child support payment. So, if both the child and parent live in Nevada (regardless of what city), the prosecution and charges would only be done in state court.
One other factor for jurisdiction pertains to the amount of money involved. In the state of Nevada, failure to make one payment may bring on prosecution regardless of the actual dollar amount. For Federal law to kick in, the missing payments would need to be in excess of $5,000 or the payments must be defunct for greater than one year.
For a first time offense in the state of Nevada, most likely the penalty would only be a misdemeanor assuming the balance is less than $10,000. Six months in jail could also be sentenced along with fines up to one thousand dollars.
If more than $10,000 is owed in child support, the crime would increase to a Class C Felony. Prison time could also be extended to one to five years confinement. Fines could be charged up to $10,000 as well.
For a second offense of not paying child support, charges would still be a misdemeanor if the balance owed is less than $5,000. Up to six months in jail along with fines totaling $1,000 could also be charged.
For balances greater than $5,000, the charge would increase to a Class C Felony with one to five years in prison and based on the discretion of the judge, fines up to $10,000.
Can someone be prosecuted under both State and Federal laws for not making child support payments?
The answer to this question is affirmative assuming both the child and the defendant don’t both reside in Nevada. If a defendant is charged and convicted under both State and Federal laws, prison sentences may be served consecutively thus extending the time served as the state charges would be served and then then Federal charges.
If you need help and are in trouble with your child support let us know and we can help. We will study your case and come up with a defense for you.
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