Defending "Deadbeat Dads" under 18 U.S.C. Section 228


This article is the result of the representation of a father who was charged under what is formally known as the Child Support Recovery Act of 1992 (CSRA). This statute has become known colloquially as the Federal "Deadbeat Dads" statute, and can be found at 18 U.S.C. Section 228. The experience was both enlightening and frightening. This article (hopefully) will give the family law practitioners some things to think about when representing a client who has been charged under the statute.

Failure to Pay Child Support Obligations

The 18 U.S.C. § 228 provides in part:

  • Offense. Any person who willfully fails to pay a child support for a child who lives in another state shall be punished as provided in subsection (c).
  • Punishment. The punishment for an offense under this section can include both a fine and imprisonment.
  • Restitution. Upon a conviction restitution is mandatory.
  • Definitions. As used in this section: the term “support obligation” means any amount determined under a court order or an order of an administrative process pursuant to the law of a State or Indian Tribe.

The statute applies whenever there exists any interstate arrearages of child support that have remained in arrears for a period of more than one year or are in excess of $5,000.00. The statute requires that the arrearages in question must be interstate; in other words, the arrearages in question must be those that were incurred while the paying parent in question (read: father) is residing in another state. It goes without saying that there is no federal jurisdiction concerning arrearages incurred for parents both of whom reside within the state of New Jersey. However, given the proximity of New Jersey to New York and Connecticut, the application of this statute should give you concern if your delinquent payer spouse resides outside the state of New Jersey.

Let's assume your deadbeat dad is $6,600.00 in arrears on a New Jersey Child Support Order, requiring him to pay an unallocated amount of $225.00 per week for three children. The payee spouse lives in Paramus and dad lives in suburban Virginia, near Washington, D.C. After many unsuccessful attempts at reducing arrears in New Jersey courts, mom files a Complaint with the New Jersey U.S. Attorney's Office under the Federal Statute. Here are some things that should come to the forefront for your consideration:

Do Not Do It Yourself

Get a criminal specialist to handle the criminal proceedings. These are dangerous and uncharted waters for the family practitioner. It is a whole different world in the Federal Criminal System. (Read: instant legal malpractice) The stakes are high. Your client could be looking a real jail time and some draconian lock-up- like the old Union County Jail in Elizabeth where Federal Prisoners are held, or up to six months in prison and a fine, and what might be overlooked by many, loss of certain legal rights and privileges as the result of a federal conviction- such as the right to vote and hold office.

Investigative Resources

Mom has a seemingly bottomless well of resources available to her through the U.S. Attorney's Office and a Federal Bureau of Investigation (yes, Agent Mulder and the FBI) to find out all about your client and even arrest him at his suburban Virginia home and ship to him New Jersey in his orange jumpsuit. Keep in mind that, even if your client has resources, the Feds have the best team of investigators money can buy (except, of course, when it comes to the FBI lab-see Timothy McVeigh prosecution).

Discovery

Unlike in New Jersey, where criminal practitioners enjoy liberal discovery rules, the right to pretrial discovery is sharply curtailed under the Federal Rules of Criminal Procedure and various statutes, including the "Jencks Act". For example, the U.S. attorney is not required to give a witness' statement until the witness testifies. You may not get to read the statement until the moment the witness--Mom--takes the stand. Yikes!

Your Adversary

U.S. Attorney's Office is not known for its compassion or understanding or willingness to compromise these types of cases. As you may be aware, there has been extensive publicity about "Deadbeat Dads" over the last several years; and there is impetus on finding these dads and making them pay, with civil and criminal penalties. As a result, be prepared for a "both guns loaded" approach- guess whose client is the target?

Adversary has Home Court Advantage

You have to go to scenic Newark (or, god forbid, Trenton or Camden), where your adversary has the definite home court advantage. ("Scully, to them we're the aliens.") Do not underestimate the advantage your adversary has since he/she appears in Federal Court on an almost daily basis, and is intimately acquainted with the Judges, law clerks and court clerks. This will put even the most accomplished practitioner at a distinct disadvantage.

So what can you do (besides drop back and punt) for Dad? Well, remember, although it is a criminal proceeding, it finds its nexus in an ordinary arrearage case and you can still consider the following:

Ability to Pay

Notwithstanding the anti-retroactive modification statute, (N.J.S.A. 2A:17-56.23), a fair reading of the terminology "willfully fails to pay" included in 18 U.S.C. '228 may afford your client the right to an "ability to pay" hearing. Keep in mind that the government must prove that your client "willfully" failed to pay his child support; therefore, if your client cannot afford to pay, a position that you will probably have to support with financial documentation and tax records, you can argue that the government cannot demonstrate all of the elements of the statute necessary to prove a criminal offense occurred. This is, after all, a criminal action; keep in mind that the government has the burden of proving all of the elements of the offense beyond a reasonable doubt. You may have defenses which might be looked down upon in a conventional State Court arrearage hearing.

Retroactivity

You may be able to retroactively modify the family court order and reduce the $5,000.00 jurisdictional threshold or one-year threshold because of such factors as requiring allocation under R.5:7-4(a) or reduction/termination via emancipation (See Bowens v. Bowens, 286 N.J.Super. 70) (App.Div. 1995); Mahoney v. Pennel, 285 N.J.Super. 638 (App.Div. 1995).

When Did the Arrearages Accrue?

Review carefully the dates on which the arrearages accrued. If any portion of the arrearages accrued before the effective date of the federal statute (October 25, 1992) the overall arrearage number can be reduced by the amount of the arrearages accrued before the effective date, you may be able to bring the case under the $5,000.00 jurisdictional threshold. The argument here would be that the statute, and by definition the threshold, are prospective only (remember ex post facto from law school?)

Are the Arrearages Interstate?

("Mulder, are you saying they're from another planet?"). Check to see if the arrearages accrued when your client was a New Jersey resident or afterwards. If all of the arrearages accrued when the client was a New Jersey resident, and there are no arrearages that have accrued since that date, the Federal Court does not have jurisdiction over the matter.

Judicial Economy

In order to convict your client, the Federal Court must hold a hearing on the amount of the arrearages and a hearing on all of the defenses you may want to raise. Is the Federal Court going to use its judicial resources, i.e. U.S. District Court Judge or U.S. Magistrate Judge, to litigate what is really a Family Court matter, matters and issues that U.S. District Courts have traditionally left to the states? If you contest the amount of the arrearages, request a remand to the State Courts, Family Part, where you feel more at home, to determine what, if any arrearages actually exist.

On the practical side of the equation, what happens if your client pleads guilty or is convicted after trial? The good news is: Since this type of offense is characterized as a Class B misdemeanor, the current Federal Sentencing Guidelines do not apply (See'1B1.9 of the Federal Sentencing Guidelines) and misdemeanors in the federal system do not carry a presumption of incarceration on a first offense. (Note: if this is a second or subsequent offense, the offense is classified as would be a larceny offense, with a "base offense level" of four, and you need to consult a federal criminal specialist to determine the appropriate guideline, which is a function of the amount of the arrearages). However, your client will be probably be looking at a stiff fine (watch out, fines can be up to $5,000.00 for a first offense) as well as a period of probation which could be five years. Sentencing, however, will entail a restitution plan to make sure that the arrearages are paid. Again, keep in mind that you can request a hearing to challenge the amount of restitution and, in doing so, can ask that the case be transferred back to the state court for an ultimate determination on the amount of the arrearages.

The restitution plan itself will be prepared through the Office of the U.S. Probation Department and not the State Court Probation Department. This can be good and bad. The U.S. Probation Department does not have the Child Support Enforcement Staff that the State Court Probation Department does, but they do have interstate authority to follow Dad wherever he lives to ensure enforcement of the resitutition order ("Mulder, this is Scully; I found him.")

Keep in mind that public policy, both Federal and State, is moving more and more towards pressing collection of past due child support and following so called "deadbeat dads" and prosecuting them ultimately wherever they live. Now that the U.S. Attorneys Office in New Jersey is developing experience in the area, and as the media publicizes the matter more and more, more payee spouses may take advantage of the Federal statute if the payor spouse lives in a foreign jurisdiction, rather than trying to rely upon REURESA (Revised Uniform Reciprocal Support Act.) The CSRA certainly has much more teeth than REURESA, and the consequences to your client are of much greater magnitude. You should become aware of this statute and how it might affect your client.

If you are thinking of challenging the statute itself on constitutional grounds, think again. In a recent Third Circuit case, United States v. Parker, 95-2018, decided March 7, 1997, the Third Circuit reversed a District court order where the District Court concluded that willful failure to pay a court ordered sum had nothing to do with interstate commerce as contemplated by the Commerce Clause of the U.S. Constitution (remember the "Commerce Clause" from law school, and those neat cases from the 1930s?) and hence, the CSRA was unconstitutional as reaching outside Congress' authority under the Commerce Clause.

In Parker, the Third Circuit concluded that the CSRA was within Congress' authority under the Commerce Clause as a "valid regulation of activity having a substantial effect on Interstate Commerce." Since the CSRA is confined to interstate transactions, i.e., a parent's child support payments to a child in a different state, and since child support obligations or local activities "form part of a national problem with a substantial impact on Interstate Commerce", the Third Circuit ruled that the District Court had erred in holding the CSRA unconstitutional.

Given the interstate nature of these prosecutions, as long as the government can demonstrate the accruing of child support arrearages by a payor spouse domiciled in another state, they will be able to demonstrate a violation of this statute. However, it is still wise to review the amount of the arrearages, the dates upon which the arrearages accrued and the state in which your client was living to see if you can maintain a challenge to the prosecution on the basis of the facts of your particular case. See also United States v. Nichols, 928 F.Supp. 302 (S.D.N.Y. 1996) (Jeffrey Nichols, the "deadbeat Dad" to end all deadbeat Dads, whose picture ended up on, among other places, the cover of People Magazine); United States v. Kegel, 916 F.Supp. 1233 (M.D.-Fla. 1996).

Courts have also ruled that the CSRA does not violate the Tenth Amendment (See United States v. Sage, 906 F.Supp. 84 (D.-Conn. 1995), aff'd. 92 F.3d 101 (2d Cir. 1996)), nor does it violate principles of federalism and comity (See United States v. Schroeder, 894 F.Supp. 360 (D.-Ariz. 1995)). Bottom line- don't try to re-invent the wheel by challenging the statute.

Summary

Child support arrearages are not to be condoned and it is an important role of government to reduce the growing problem of parents who ignore their financial obligations to support their children. However, when the matter is raised to the level of federal criminal activity, those persons charged are entitled to any and all defenses available to them before the sword of criminality, with all of its attendant consequences, befalls them. With the dearth of reported cases to look to for guidance in dealing with the statute, the goal here is to have opened your eyes to concerns in representing your client who may have been charged by the feds as a "deadbeat dad".