What Does an Attorney Have to Prove if a Father is Charged for Failed Child Support?

 Posted on September 17, 2013 in Family Law

If criminal charges can be brought against a father in the State of Illinois for failure to pay child support, what does the state attorney have to prove?

Charges can be brought under the Non-Support Punishment Act (750 ILCS 16/15). The State of Illinois must prove that you did one of four different things.

However, in my own opinion, the most common prosecutions will be for those fathers who fail to obey a court order to pay child support or maintenance (alimony) and the father has made:

• No payments for longer than 6 months or owes greater than $5,000 see paragraph 2 below, or
• No payments for longer than 1 year or owes greater than $20,000.

But since this is a criminal rather than a civil case. like a divorce case or paternity case, the State of Illinois must prove you failed to obey the court order willfully (meaning intentionally) and that you had the ability to pay the support and refused to do so. In addition, the State of Illinois must prove you guilty beyond a reasonable doubt since this is a criminal case.

This is a much higher standard of proof than in a divorce or paternity case for example brought in a civil court such as a divorce or paternity court. Beyond a reasonable doubt is difficult to prove if you genuinely lost a job and have no money to pay support.

So who will be prosecuted? Again, only in my opinion, probably those who owe higher amounts of support, at least $ 5,000 and up. The greater the amount over $5,000 the greater the risk of being charged. Also, any amount can be subject to contempt civil charges in a divorce or paternity court case.

The Non-Support Punishment Act (750 ILCS 16/15) states:

(a) A person commits the offense of failure to support when he or she:

1. Willfully, without any lawful excuse, refuses to provide for the support or maintenance of his or her spouse, with the knowledge that the spouse is in need of such support or maintenance, or, without lawful excuse, deserts or willfully refuses to provide for the support or maintenance of his or her child or children in need of support or maintenance and the person has the ability to provide the support; or
2. Willfully fails to pay a support obligation required under a court or administrative order for support, if the obligation has remained unpaid for a period longer than 6 months, or is in arrears in an amount greater than $5,000, and the person has the ability to provide the support; or
3. Leaves the State with the intent to evade a support obligation required under a court or administrative order for support, if the obligation, regardless of when it accrued, has remained unpaid for a period longer than 6 months, or is in arrears in an amount greater than $10,000; or
4. Willfully fails to pay a support obligation required under a court or administrative order for support, if the obligation has remained unpaid for a period longer than one year, or is in arrears in an amount greater than $20,000, and the person has the ability to provide the support.

Mothers may be charged too if they are the person the court order requires to make support payments.

If you are in need of an experienced child custody attorney, call 630-920-8855 to reach the Law Office of Martoccio & Martoccio, located in Hinsdale, Illinois.