The Penalty For Failing To Pay Child Support

Child Support is one of the few, if only, issues in family court that is sacrosanct. It will always be ordered when appropriate and sanctions for non payment are severe.

Recently a man in North Charleston was shot and killed by a police officer while he was fleeing to avoid being arrested on an outstanding warrant for failure to pay child support. Why was he so worried?

In South Carolina non payment of child support is treated as contempt of a court order. Contempt is punishable by up to one year in jail, in addition to fines and community service. A hearing is required in the family court to determine if the non payment is “willful”. “Willful” means that a person has the ability to comply with a court order but has made a decision not to comply.

This is an analysis that will often not happen in a family court contempt hearing. The court docket is overwhelming, our family court judges have no clerks to assist them, and often times the person who has failed to pay child support is not represented by an attorney (after all, if they can not pay child support it is very likely that they can not afford an attorney). This is the proverbial “recipe for disaster”. The Post and Courier yesterday described how once a person is put into the state child support enforcement machine they can face years of periodic and intermittent incarcerations. This often will prevent people from long term and gainful employment destroying any hope they have of living productive and healthy life that is necessary in order to support a family.

Many of the child support hearings I have seen are simply a formality prior to incarceration. Judges only want to know why the money was not paid, and will almost always issue a finding of contempt and a sentence of incarceration. As the P&C pointed out, not only will an inmate incarcerated for failing to  pay child support NOT PAY CHILD SUPPORT during their term of incarceration, the child support obligation will continue to accrue during the jail sentence! Have we lost our minds? Have we have created an entire class of people who live “off the grid” to avoid being caught and sentenced to jail for not paying child support.

Is there a solution? I imagine that there is, and many states enforce child support differently. In Kentucky the court will go through a similar process for non payment of child support by bringing the “contemptor” into court and determining if he has willfully violated the child support order. However, if there is a finding of contempt after a hearing for non payment of child support, the court will order mandatory wage garnishment but not a jail sentence. This is not an option in South Carolina where we simply send Dad’s to jail. Kentucky, on the other hand, understands that if a person has a job they can pay child support, and if they will not do so willingly, the state will take it directly from their paycheck and give it to Mom for support of the kids. Who wins in KY? Sounds like everyone!

Had Michael Scott been facing mandatory wage garnishment versus a jail sentence, it is very likely he would not have run from the police, he would not have been killed, a police officer would not be facing a murder charge and our community would not once again be struggling with another “black on white” police killing.

 

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