Jail Time for Unpaid Child Support

Sentencing a deadbeat parent to jail for unpaid child support is usually a court's last resort.

By , Attorney · UC Berkeley School of Law

Parents in all 50 states have a legal duty to support their children financially—regardless of the marital status of their parents. To ensure that parents continue to pay to support their children after a divorce or separation, a court or state child support agency will enter a child support order detailing the amount of money a parent must pay to continue supporting the child.

A child support order has as much force and authority as any other order entered by a court. Parents who don't comply with the court's order are subject to a host of enforcement tactics, the most extreme of which might be jail time.

Types of Child Support

A parent might be on the hook for one or both of the following types of child support.

Retroactive Child Support

Because a parent has a duty to support a child from birth, it's possible for a parent to owe money from the time before the court or agency issued the support order. This is known as retroactive child support.

State law dictates how far back in time a parent may owe retroactive child support. For example, some states allow courts to reach back and calculate the support a parent should've paid for a certain number of years before the initial application for child support. Other states limit awards of retroactive support to the date that a request for child support was filed.

Child Support Arrears

When parents who are supposed to pay child support (the "obligors") fail to pay the full amount, they risk being in "arrears." This type of unpaid child support is also called "back" child support. It's the difference between what the obligor has been ordered to pay and what the obligor has actually paid. Child support arrears begin to add up only after a child support order is in place.

Some states charge interest on child support arrears. However, judges often may waive interest if it helps the obligor parent pay back the principal support owed.

Once a parent is in arrears—no matter how small the amount—the parent who is owed money may seek help from the court or the state child support agency to have the order enforced.

How a Child Support Order Is Enforced

Parents who should be receiving child support may not enforce a child support order on their own. If they have the financial resources, they can hire a local family law attorney to help them navigate the enforcement process. But they can also get help from a state or tribal child support agency at a low cost—and without the need for a lawyer.

Child support agencies can enforce child support orders in a variety of ways, including jail time for the obligor parent. However, before an obligor is sentenced to jail time, the agency will attempt one or more of the following methods:

  • Wage withholding. The state can order the obligor's employer to deduct (garnish) the child support amount from the obligor's paycheck. The employer sends the payments directly to either the other parent or the child support agency.
  • Withholding other income. Income besides wages—such as commission income, bonuses, and pension payments—can also be garnished by the state.
  • Tax offsets. State agencies can report obligors to federal and state tax agencies, who in turn can deduct support from any tax return the obligor might be eligible to receive.
  • License suspensions and revocations. Having the state revoke or suspend an obligor's driver's license has proven to be one of the most effective ways of collecting past-due child support. The state can also revoke or suspend other licenses, such as professional licenses and recreational licenses.
  • Liens. When the obligor owns real estate or certain types of other property (such as a car), a lien can be placed on the property. Depending on state law, the lien might be filed by either the parent who's owed money or the child support agency.
  • Freezing or attaching bank accounts. The child support agency can freeze accounts held by certain financial institutions (for example, banks, credit unions, and insurance companies). A freeze on the account means that the obligor can't use the account until the back child support is paid off. In some circumstances, the state can even seize (withdraw) the money directly from the account.
  • Passport restrictions. When the obligor owes at least $2,500, the child support agency can submit the obligor's information to the federal Office of Child Support Enforcement (OCSE). OCSE can then have the Department of State reject the obligor's passport application.

Most of the time, the child support enforcement agency will attempt at least one of these methods before taking the more serious step of filing a contempt of court case against the obligor.

Contempt of Court

A contempt of court action for failure to pay child support is one in which the parent who's owed money files a motion asking a court to hold the obligor responsible for not following the existing child support order. In many states, a parent can't take this serious step until they've worked with the child support enforcement agency to exhaust other reasonable collection methods.

The obligor must be served with a document ordering them to attend a contempt of court hearing. At the hearing, the obligor will have the opportunity to explain why they haven't paid support. If the obligor doesn't attend, the court can issue a warrant for their arrest.

Civil vs. Criminal Contempt of Court for Failure to Pay Child Support

When judges hear a contempt of court motion and find that the obligor has violated the support order, they may order sanctions that fall into one of two categories:

  • Remedial sanctions. Remedial sanctions are ordered when the court has found a "civil" contempt of court—a basic failure to follow the court's orders. Remedial sanctions are designed to get the obligor to pay what's owed. For example, the judge might order that the obligor write a check for the outstanding child support in the court's presence during the hearing.
  • Punitive sanctions. Punitive sanctions are ordered when the court has found a "criminal" contempt of court—an egregious disregard of the court's orders. Punitive sanctions, such as fines and jail time, are designed to punish the obligor.

It's unlikely that a court will order punitive sanctions unless the obligor has acted in a manner that is disrespectful of the court or has intentionally withheld child support. For example, an obligor who has the means to pay and has repeatedly been ordered to pay in the past might face jail time.

How Long Is a Jail Sentence for Failure to Pay Child Support?

In most states, an obligor who's found to be in contempt of court isn't entitled to a jury trial—the judge will decide the sentence. The length of the sentence a judge can impose depends on state law. A typical sentence ranges from a few days to (usually) no longer than six months. Sometimes, the sentence might be to stay in jail until the amount owed is paid in full.

In all but the most extreme situations, judges are hesitant to order jail time. That's because if obligors truly are struggling financially, putting them in jail isn't going to help them pay the support—they won't be able to go to work, and will end up with a criminal record that makes it even more difficult to find work.

Federal Prosecution of Deadbeat Parents

State and local enforcement of child support orders is usually enough to get a deadbeat parent to pay up. But in rare cases of egregious behavior, the federal government will step in.

When the obligor has refused to pay child support for over one year (or owes more than $5,000), the U.S. Office of the Inspector General (OIG) may intervene. However, for the federal government to get involved, the obligor must live in a different state from the child or have traveled to another state or country in an effort to avoid paying support.

The OIG isn't required to intervene in all cases that meet these requirements. Rather, a state or local agency must first make collection attempts; it can refer the case to the OIG only after it has determined that its efforts won't be successful. The Department of Justice will then decide whether to prosecute the case.

Federal penalties vary depending on whether it's a first offense, whether the parent left the state to avoid paying, the duration of time that support hasn't been paid, and the amount of unpaid support. On top of fines, the obligor can be sentenced up to two years in prison. (18 U.S.C. § 228 (2023).)

How to Avoid Jail for Unpaid Child Support

If you're on the receiving side of a motion for contempt for failure to pay child support, go to the court hearing prepared to show that you didn't deliberately disobey the court's order. You might have to convince the judge that you would've paid child support if you could. Preparing evidence is a must.

Your first step is to show why you didn't pay. For example, if you've been out of work, get a sworn statement from your most recent employer stating why you were let go. If you went job searching but had no luck, provide records of when you interviewed or filled out an application and with whom you spoke. Remember: Disputes with the custodial parent about custody or visitation are never an acceptable excuse for not paying child support.

Next, you must explain why you didn't request a modification hearing when it became evident that you couldn't meet your support obligation. For example, if you've been in bed or otherwise immobilized—depressed, sick, or injured—get sworn statements from all medical professionals who treated you. Also, get statements from friends or relatives who cared for you. Emphasize your most compelling arguments, but never lie.

If you spoke to lawyers about helping you file a modification request but couldn't afford their fees, bring a list of the names of lawyers you spoke to, the date you spoke to each one, and the fee the lawyer quoted you. If you tried to hire a legal aid lawyer to help you but you make too much money to qualify for such assistance (or the office had too many cases, or doesn't handle child support modifications), make sure you bring the name of the lawyer and the date of the conversation.

More Information About Child Support Enforcement

For information on other methods of collecting child support, including wage withholding orders, liens, posting bonds, and more, see our Enforcement of Child Support Obligations area.

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