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          Non-Support of Children Criminal Statute





NON-SUPPORT OF CHILDREN CRIMINAL STATUTE

The criminal statutes regarding non-payment of child support are found in
Title 18, Chapter 4 of the Idaho Code
.  The statute making failure to support children a criminal offense is Idaho Code 18-401 and reads:

 18-401.  DESERTION AND NONSUPPORT OF CHILDREN OR SPOUSE
 Every person who
(1)  Having any child under the age of eighteen (18) years dependent upon him or her for care, education or support, deserts such child in any manner whatever, with intent to abandon it; 
(2)  Willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children, or 
ward or wards; provided however, that the practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not 
for that reason alone be construed to be a violation of the duty of care to such child; 
(3)  Having sufficient ability to provide for a spouse's support, or who is able to earn the means for such spouse's support, who willfully abandons 
and leaves a spouse in a destitute condition, or who refuses or neglects to provide such spouse with necessary food, clothing, shelter, or medical 
attendance, unless by the spouse's misconduct he or she is justified in abandoning him or her; 
Shall be guilty of a felony and shall be punishable by a fine of not more than five hundred dollars ($500), or by imprisonment for not to exceed fourteen 
(14) years, or both.

The remaining provisions of Title 18, Chapter 4 of the Idaho Code discuss the court's powers with regarding to remedying the defendant's failure to provide for support of their children.

 

PROSECUTING ATTORNEY'S PROSECUTION POLICY

The Prosecuting Attorney has established guidelines for when it will consider a prosecution pursuant to Idaho's non-support of children statute. The prosecuting attorney's office has limited resources and cannot address every complaint that may violate the statute. 

As with child custody interference, there is a civil remedy available to address these parental failures.  The non-offending parent must take responsibility for pursuing those remedies.  A parent that has a divorce decree or a decree which has been entered in a paternity law suit can seek to have the child support order entered in that case enforced by the judge that issued the order.  A parent who does not have a court order setting out a child support obligation should seek to have one entered against the other parent in an appropriate civil law suit. 

There were significant changes made in federal and state law pertaining to child support in 1992.  These changes have created a system in Idaho where the tools and resources of the State of Idaho have been channeled to the Idaho Department of Health and Welfare to address non-payment of child support.  Payments made pursuant to a child support order are now tracked by the Department of Health and Welfare, not by the clerk of the court.  The Department was also vested with the tools to investigate state and federal records regarding the non-paying parent.  The Department can locate employers and income information on the non-paying parent.  They can also request that the Department of Transportation suspend the driving privileges of the non-paying parent.

Because the State of Idaho has tasked and provided funding to the Department of Health and Welfare to assist in the collection of child support obligations, it is the position of the Prosecuting Attorney's Office that the Department should be the first government agency to address the non-payment problem and that the Prosecuting Attorney's Office should only address non-payment issues when the efforts of Department have been unsuccessful.  The Prosecuting Attorney's Office will only pursue criminal charges for non-support of a child if the case is referred to it from the Department .  These referred cases usually have the following things in common:  (1)  the Department has unsuccessfully exhausted all of its means of attempting to get the non-paying parent to pay child and (2) the arrearages due are more than a thousand dollars.  The child for whom child support is due must reside in Bingham County before a prosecuting will be pursued.  Because the statute of limitations for prosecution of these matters is five (5) years, any prosecution will only cover the last five years of non-support.  Because the failure to support must be "willful," cases will not be prosecuted where the non-supporting parent is involuntarily unemployed or under-employed or otherwise unable to meet a child support obligation through circumstances beyond their control.

In summary, any person wishing for the Prosecuting Attorney's Office to prosecute a parent for non-support of a child needs to contact the Idaho Department of Health and Welfare first.  The Department case manager can make a request or referral for criminal prosecution if they believe that the non-supporting parent is capable, but unwilling, to support their child or children and that the efforts of the Department to assist in collection are and will continue to be unsuccessful.

DEPARTMENT OF HEALTH AND WELFARE INFORMATION

The Department of Health and Welfare's Child Support Services web site has information, along with answers to frequently asked questions, on such topics as:




   Locating the other parent




   Establishing a legal relationship (paternity) between a child a his/her father


Establishing child support obligations


Making sure child support is paid


Making sure medical support is provided; and


Getting a child support order changed


Parents in other states

The site also has information for employers with employees who have an Income Withholding Order.

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