Failure to Pay Child Support
Did you know that failure to pay court-ordered child support can not only send a person to jail, but also result in a felony conviction? To make matters worse, a fine of up to $10,000 may also be levied on top of the jail sentence.
Texas Penal Code 25.05 makes it a felony offense to intentionally or knowingly fail to provide court-ordered child support for a child under the age of 18. A “child” includes a child born out of wedlock whose paternity has either been acknowledged by the actor or has been established in a civil suit under the Family Code or the law of another state.”
To be criminally guilty of failure to pay child support, the person must be subject to a court order requiring child support payments. A mutually-agreed upon child support arrangement will not become a basis for this criminal action.
Avoiding an Arrest
Understand that arrests take place at the probable cause level. Proof beyond a reasonable doubt is not necessary for an arrest. Therefore, if the receiving parent calls the police and says you have not been paying child support despite a court order to do so, you can be arrested without as much as a phone call to you to see if that is true. It is critically important that you pay child support in a manner that can be proven at a later date, if need be. That could be by check, or by simply getting the receiving parent to email or text a confirmation that the payment was received if you are paying by cash.
Affirmative Defense to Failure to Pay Child Support
Failure to pay child support law has an affirmative defense. The affirmative defense can be established if the actor can show they were unable to provide support for the child.
Failure to pay child support is a state jail felony, punishable by both a fine of up to $10,000 and jail time of up to two years, with a minimum of 180 days in custody.
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Penal Code Sec. 25.05
(a) An individual commits an offense if the individual intentionally or knowingly fails to provide support for the individual’s child younger than 18 years of age, or for the individual’s child who is the subject of a court order requiring the individual to support the child.
(b) For purposes of this section, “child” includes a child born out of wedlock whose paternity has either been acknowledged by the actor or has been established in a civil suit under the Family Code or the law of another state.
(c) Under this section, a conviction may be had on the uncorroborated testimony of a party to the offense.
(d) It is an affirmative defense to prosecution under this section that the actor could not provide support for the actor’s child.
(e) The pendency of a prosecution under this section does not affect the power of a court to enter an order for child support under the Family Code.
(f) An offense under this section is a state jail felony.