A Rhode Island child support lawyer discusses important issues concerning contempt for failure to pay child support in Rhode Island.
Are child support contempt proceedings ever initiated by the state of Rhode Island?
If the parent who is owed child support (the parent with physical custody) is on AFDC Benefits (welfare), then payment may be owed to the state of Rhode Island. In that event, the motion may be initiated by the State of Rhode Island, Child Support Enforcement.
The state can also initiate contempt proceedings if the custodial parent is receiving full-services of Rhode Island Child Support enforcement.
Can a child support contempt proceeding be part of another Rhode Island family court proceeding?
A child support contempt proceeding could be part of a Rhode Island divorce, child custody, Complaint for Separate Maintenance, dcyf petition, child visitation, paternity or other type of RI Family Court legal action.
When does a person facing a child support contempt have a right to an attorney?
If there is a potential for incarceration and a person cannot afford a Rhode Island family lawyer, then the RI Family Court must insure that the person has an attorney representing him or her. The Judge usually has a list of court appointed attorneys who are paid for by the state. Otherwise, the RI Family Court will appoint one of the lawyers from Rhode Island Legal Services to represent the person.
Can a contempt motion be settled prior to a hearing?
There is often an opportunity to settle the matter prior to a hearing in which a judge may find a person in willful contempt.
What types of settlements can be reached?
A settlement typically may include any one of the following or a combination of the following:
- the obligor agreeing to remain current,
- paying a lump sum,
- a payment plan,
- staying current in addition to an arrearage order, etc.
In some situations, the parent with physical custody or Child Support enforcement is unwilling to settle the matter and insists on a hearing.
What is “Technical contempt” for failure to pay child support and what are the implications?
If a person is found in technical contempt after a hearing, it means that the person has not complied with the child support order. However, the Court believes that the person had a legitimate reason or excuse for failure to pay, such as:
- loss of job (being fired, laid off),
- decrease in income,
- injured at work,
- unable to work,
- medical problems,
- or a myriad of other excuses or explanations.
The judge also may not accept any of the above stated excuses as justification for failure to pay. A person found to be in technical contempt will not be sentenced to the Adult Correctional Institution (aci) (jail)! However, the person may be ordered to:
- find employment,
- raise a lump sum,
- stay current and / or make payments on the arrearage,
- pay attorney’s fees,
- make certain lump sum payments,
- obtain a second job etc.
What factors play a role in the judge’s determination as to whether contempt is willful or technical?
Most Judges have little patience for people who do not support their children. If the person has an excuse for nonpayment it better be a good one or they may find themselves in Jail. The amount of arrears and the person’s history for compliance or noncompliance is often crucial in a judge’s determination! If a person has a long history of non-payment then that person has a much higher likelihood to be held in willful contempt.
Does the amount of support owed factor into whether a contempt is willful or technical?
The more a person owes the more likelihood that the person will be held in willful contempt.
What factors will a Rhode Island family Court judge look at?
At a hearing the judge will look at all relevant supporting documentation that has been offered into evidence. The judge will almost always ask what the person can pay at that moment or whether they are able to immediately borrow money from friends or family. The Usual Dialogue is – “how much can you come up with to stay out of jail and how quickly can you pay?” The RI Family Court judge may also be interested in whether a person has assets that he or she can sell.
Does child support in Rhode Island (RI) automatically modify when circumstances change?
NO!!! if a person’s circumstances change then they need to file a motion to modify or suspend their child support rather then not make the payments! Child support does not automatically modify upon circumstances changing. If a modification is granted, then the modification will be retroactive to the date of filing of the motion to modify, not the date the circumstances changed. This does not mean that a person can unilaterally change their child support when they file a motion. It means that the child support will run retroactive after the RI Family Court issues an order modifying the child support. Therefore, if a person loses their job, becomes disabled, their hours are reduced or their pay decreases they must immediately file a motion to modify.
Child support can only be changed or modified if a motion is filed and an order enters. In many instances the judge’s response to a person’s plea to not hold them in contempt, because they lost their job or their income decreased will be something like: “you should have filed a motion to modify or suspend child support when your circumstances changed rather than not pay.”
What constitutes “willful contempt ” for failure to pay child support?
A finding of willful contempt means that the judge believes that a person is thumbing their nose at the Court or has no reasonable justification for nonpayment. It could result from the judge not believing that the stated excuse for nonpayment is a justifiable excuse. A finding of willful contempt could also mean the following:
- the person has ability to pay and has not made payment
- the person has not made proper efforts to find suitable employment
- the person is able to work yet either isn’t working, is underemployed or not making proper efforts to find employment.
- The judge may believe that the contempt is willful because the person is lying, exaggerating his excuse or that the person is not acting in good faith.
What are the implication of a judge finding a person in “willful contempt” for failure to pay child support?
If a person is found in willful contempt for not paying Rhode Island child support, the person could be sentenced to the ACI from day to day. Contempt sanctions are technically not criminal proceedings! However, since the sanctions could lead to jail time, they are quasi criminal proceedings. Contempt proceedings are not technically criminal because they are intended to compel compliance with child support orders rather than punish for nonpayment!
If a person is sentenced to the ACI for failure to pay child support, how does the person get out of jail?
If a person is sentenced to the ACI from day to day, then the judge of the Rhode Island Family court will usually state that upon payment of a certain amount, the person will be released from jail. In child support contempt proceedings, there is always a ticket out of jail by making a certain payment. A person could be held in willful contempt and not be sentenced to the ACI. After 30 days in jail, the incarceration must be reviewed.
Editor’s note: In September 2013, 30 people were arrested mostly on civil body attachments for failure to pay child support or for failure to appear in Family Court. The Providence Journal reported: “An early morning sweep Wednesday of people owing child support resulted in 30 arrests through the cooperation of the Rhode Island State Police, the R.I. Division of Sheriffs and the U.S. Marshals Service, a state police news release reported Wednesday.”
“Chief Sheriff David M. DeCesare stated, “Our participation in this sweep is the beginning of a continuing effort by the Division of Sheriffs in cooperation with other Rhode Island law enforcement agencies to reduce the backlog of court warrants.” RI State Police News release: State Police, R.I. Division of Sheriffs, & U.S. Marshals Service Arrest Thirty Individuals During a Family Court Warrant Sweep Providence Journal Article: http://www.providencejournal.com/breaking-news/content/20130904-30-people-owing-child-support-arrested-in-ri-sweep.ece
Legal Notice per Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.