Money judgments and income deduction orders may not be enough to compel some parents to pay their child support obligation. The Family Court Act provides judges with the authority to hold a nonpaying parent in contempt of court. The end result could be the incarceration of the parent.
Three courts have recently had to deal with the issue of the authority of a judge to jail a parent for failing to pay child support. Section 454 of the New York Family Court Act gives judges the power to jail a person for up to six months for willfully failing to comply with a court order to pay support. Proving willfulness is not all that difficult considering that the statute states that failing to comply with an order to pay child support is all that needs be proven to establish that the act was a willful one.
In McMinn v. Taylor, the Second Department of the Appellate Division, held that once it was proven that a parent failed to pay court-ordered child support, the burden shifted to him to prove that he was financially unable to make the payments. The trial court did not commit reversible error by ruling that the parentâ€™s assertion that he had lost his job and could not find gainful employment lacked credibility. The judges allowed the six-month sentence for contempt to stand.
A subsequent decision by the same appellate court in Keller v. Keller cautioned that punishing a parent for contempt for nonpayment of court-ordered child support should only be used as last resort after other enforcement measures had been exhausted. The court wrote that before jailing a parent, judges should first establish that income deductions, money judgments or sequestration orders have not worked, or would not be effective, in compelling compliance.
Jailing a parent is a drastic remedy that, unlike other measures that are designed to collect the money that is owed, will generally not result in reduction of the arrears. The reality is that a parent is not earning an income while sitting in jail, but incarceration might get recalcitrant parents to consider the price nonpayment is costing them.
If you should be receiving child support and you are not, then you may wish to go to court to seek enforcement of your child support order. Jayson Lutzky is a lawyer with over 32 years of legal experience in New York. He helps men and women deal with child support challenges as well as other family court issues. He offers free in person initial consultations. Call 718-514-6619 to schedule a consultation. Visit www.MyNewYorkCityLawyer.com to learn more about Mr. Lutzky.