- What Happens if the Paying Parent fails to Follow a Child Support Order:
A Child Support Order issued by the
Court is effective until modified by the Court. Parents do not have the right
to modify the order themselves. If unanticipated changes of circumstances
have
occurred so that the amount of child support should be changed, a Petition to
Modify Child Support must be filed with the Court. Ask for Form 803, "Petition to Modify Child Support" (See
#32 Modification of Child
Support).
If the paying parent fails to pay
child support, the children involved will suffer. Our laws require that court
ordered child support be withheld from wages if any child support due under an
order is late seven days or more. In addition, the law provides that child
support orders can be enforced in several other ways.
- How to Enforce a Child Support Order:
Failure to follow a court order is a
serious matter. If one parent stops making child support payments ordered by
the court, or begins paying less than what the court ordered, the following
options
exist for enforcement:
The parent entitled to support can
go back to the court that issued the order and file a Petition for
Enforcement. (Ask the court clerk for Form #823, "Motion to
Enforce.") In some cases, where failure to pay has already been brought
to the court's attention in the past, you can ask the court to find the other
parent in contempt of court. The difference between enforcement and contempt
is discussed below.
Rather than going back to court on
your own, you can ask the Office of Child Support for assistance.
1-800-786-3214. Or go to website: www.osc.state.vt.us
- The Office of Child Support and Enforcement of Child Support Orders:
The Office of Child Support (OCS) can
assist a parent in collecting back support if a request is made for their
services and a written application is completed. There is no fee for the service
and all parents involved in child support matters are eligible. (See #7 Child
Support for how to get help from the Office of Child Support.)
As the State's child support agency,
OCS has the authority to intercept (catch) the income tax refunds of the parent
obligated to pay support if the back child support owed is at least $500. If
the
back child support is at least $1,000, OCS can report the amount of child
support owed to credit bureaus so that the obligated parent will have difficulty
getting loans unless the support is paid. OCS can also capture lottery winnings.
If the parent who pays support has a
professional license or other certification within Vermont, OCS can also report
the parent to the licensing authority and, unless the parent can show he or she
is current in the child support obligation, or has made a plan to become
current, the license should not be renewed or will be suspended. This includes
recreational licenses (hunting and fishing) as well as driver’s licenses.
All these steps can be taken without
going back to the court. In some cases, OCS will also file a Petition to Enforce
the Child Support Order, although OCS will not be your lawyer and will not
represent you in court. At the court hearing, an OCS representative will be
there to represent the State's interest in the well being of children.
- What is a Petition Motion to Enforce?
A Petition Motion to Enforce is a
written request that the court enforce the support order. (Ask the Court Clerk
for a Form #823) The Petition Motion to Enforce should state how much support
is owed and ask the court to enter a judgment and repayment. If the failure
to pay
is intentional, the petition can request that the court add a penalty of up to
10% of all support that is overdue by 30 days or more.
An affidavit (sworn statement) must
be attached to the Petition that outlines how the other parent has violated the
order. If the child support has been paid by wage withheld through the Office
of Child Support Registry, a completed copy of the payment record which OCS
has
maintained on the case since the last court order should be attached to the
Petition Motion. If child support has been paid directly between the parents,
records showing how the back support was calculated should be attached.
As with any other request to the
court, the other parent must be served with the Petition Motion to Enforce,
Affidavit and other paperwork before a hearing can be held. (See #25 Serving the
Divorce Papers.)
- What Happens at an Enforcement Hearing?
The court will ask whether support
has been paid as ordered, and if not, how much is due. If there is a dispute
about who paid what, the parents will be asked to show records, such as copies
of canceled checks or other proof of payment. Once the court has determined the
amount of support that has not been paid, repayment will be ordered. If the
paying parent has the ability to pay all the back support, a lump sum payment
will be ordered. If a lump sum payment cannot be made, the court will order a
repayment plan. A judgment will be entered for the unpaid support. Interest of
12% per year accumulates on all unpaid portions of a judgment.
If the paying parent is unemployed at
the time of the enforcement hearing, the court can order the parent to seek work
immediately and report to the court, or the other parent, or the Office of Child
Support, on a weekly basis regarding the efforts to find work. If the parent
fails to look for work the court can find the parent in contempt.
If the court determines that the
paying parent deliberately failed to pay the support as ordered, the court can
order up to a 10% penalty on amounts overdue by more than 30 days. The court
can also order the delinquent parent to reimburse the parent who was entitled
to the
support for attorney fees or other costs incurred for having to come to court
to
enforce the child support order.
- What is Contempt?
Contempt is willful disobedience of a
court order when the paying parent had the ability or capacity to comply with
the order. If a parent has done everything in his/her power to pay what the
court order requires, but still has been unable fully comply, the Court will
not find the parent in contempt. But if the Court determines that a parent
willfully
failed to comply and could have, the parent can be jailed until such time as
the support owed, or a portion, is paid. Contempt is the last resort to make
a
parent comply with an order. Contempt is a matter with serious consequences.
Motions for contempt are heard by the Family Court Judge.
(Please note that even if a non-custodial parent fails to pay court ordered
child support, that is NOT a basis to refuse the parent parent-child
contact. Conversely, if a custodial parent refuses to honor the non-custodial
parent’s visitation rights, that is also not a basis for the non-custodial
parent to stop paying child support. To do either of these things will place
you in danger of being found in contempt by the court.)