Family Law Questions? Ask a Family Lawyer Online.
Thank you for your question. To rephrase the first, the question is why a court in a contempt case involving non-payment of child support might prosecute the victim-parent for failing to appear. I will start by saying that you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel.
I also have to make a disclaimer: it is technically impossible to interpret one clause of an order, contract, or agreement without examining the entire document or the context of the document. It is like showing you a picture of an elephant trunk and asking you to identify to what animal it belongs--you could say with great confidence that it is probably a trunk of an elephant, but without examining the animal to which it is attached you could not say for certain. So, please understand that my answer is not based on complete information and it therefore is potentially incomplete and it should not be relied upon as complete.
So that said...
There can be several reasons, but the most likely for any given case is that once a matter becomes criminal in nature, it is no longer one parent versus the other; it is the people of the state of Maryland versus the parent. So the state may become a party to the action.
In that context, the state needs to call witnesses to successfully prosecute the case, and that can often include the other parent in a child support case.
So the state has the power to order the other parent to appear so it can make its case, just it can make someone appear to testify in court in any other criminal case.
If there is a willful, knowing failure to appear in court pursuant to a court's order, it can result in prosecution for contempt of court.
what is a review conference, and then it says if the matter is not settled at that time, the parties shall appear at the circuit court. what does that mean? I
The primary function of a review conference it to determine if the case needs to proceed to trial and if it is ready to proceed to trial.
If a case is moved from a review conference to a circuit court, that means it is pushed on to trial.
Does that make sense?
Ready, in terms of what? He has already been charged with contempt through child support services? Is this to negoitate the arrears that he owes?
Sometimes, for example, the parties want more time to negotiate a settlement or to collect information. But if there is an impasse and no agreement, the case goes to trial.
the contempt hearing that i missed did not ask for a review conference? Can my ex husband claim that we made a verbal agreement to reduce the child support payments 4 years ago, so he had been paying that amount instead of the court ordered amount? Could that stand up in court. I never formally agreed to anything.
Let's tackle one question at a time so we can stay organized.
The first question was why a court in a contempt case involving non-payment of child support might prosecute the victim-parent for failing to appear. Did you understand the answer to that question?
Terrific. The second question was whether a child support order may be verbally modified. Are you ready to move on to that question, or did you want to address another question first?
how do you mean impasse?
When a court action is initiated, it can resolve in one of two ways: (1) by agreement of the parties, or (2) by court trial. If the parties can't agree... if they reach an impasse... it will be resolved by court trial.
This must of happen because I did not show up to the first contempt hearing date. I guess I could have declined the review hearing?
The second question is whether a child support order may be verbally modified. The answer is generally "no". When the court makes its order, there are actually three parties involved: there is the mother, the father, and the child. Even where the mother and the father agree to a change, the court makes its order based on the needs of the child. So any agreement between the parents is generally non-binding unless it has been approved by the court.
In other words, a verbal agreement to reduce support or arrears is not binding unless put into writing and made an order of the court.
yes, would you recommend representation during the contempt hearing and review? Also, he does not report his income, would you recommend bringing information regarding his job, that he calls hobby, but makes money from and has clients.
and his number one excuse for not paying child support will be the so called, verbal agreement of reduction of payment, but becasue a verbal agreement is not binding to reduce support that will not be taken in consideration for not paying his payments?
in a contempt hearing
That actually takes us to the third question, which is whether it is appropriate to hire an attorney as the parent who is not being prosecuted in a contempt case. The answer is that it really depends on your own level of sophistication, but even I would hire my own attorney if I was in that sort of case because I would not be able to objectively evaluate my own situation.
The question in a contempt trial for non-payment of child support is whether the defendant knowingly and willfully failed to pay the ordered amount. The court can consider extemporaneous circumstances for purposes of sentencing, but the question of guilt depends only on whether the violation was made knowingly and willfully.
what do you mean knowingly and willfully?
I am not sure how to answer that question. I will assume that you know what "knowingly" means and what "willfully" means. Could you rephrase your question please?
in terms of knowing he had a child support payment to make and didnt make it.
If a defendant knows the terms of the order, and if the defendant chooses to not obey the order, the defendant is in contempt.
not matter what the excuse?
A verbal modification is not a valid defense.
if he claims he lost his job?
If someone is unable to pay because they do not have the money to pay due to a loss of job, the non-payment might not be "willful", so the loss of a job can be a valid defense in a child support contempt case. I would remind you that you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel, but the loss of a job is generally a defense for non-payment if the person can't pay because of the loss of job.
what if has his own buss. that he makes money from but doesnt report taxes? Will I need to prove this on the day of court?
If he is making money from his business, then he is not really unemployed, is he?
is that something i should bring up at trial, because he will not. He claims he works in the restaurant buss.
at the scheduled contempt hearing this past February, my ex claimed that he lost his job and is now working some place new. So the the court ordered a wage lien to take effect and ordered him to pay a months payment before leaving that day. Currently, he has not paid March child support payment, payment is due the 1st of each month.
the postment date is on June 22nd
I obviously can't litigate your case from here, but if you are serious about winning, why would you withhold any piece of information that would tend to prove the other party's guilt?
The point is that if you want to win your case, you want to prepare to provide any and all information at trial that might support your case.
Did you have any other questions?
yes, my ex's drivers license has been revoked for not paying child support payments in Md. I have full custody over my son and have told my ex, that he cannot drive my son and if he wants to have someone else drive him, he needs to show me proof of a valid drivers license, am I allowed to ask for this kind of proof?
Does it violate the court's order?
court never ordered him not to drive my son. But his license is revoked and I have full custody and need to do what I believe is in my son's best interest.
Is that within my rights having full custody?
Parents can have visitation even when the other parent has full custody. Would you be restricting him during his visitation time, or during your custody time?
In other words, are you denying him his court ordered visitation because of the driver's license issue?
no, he can see my son, but i told him he needs find other transportation to pick him up and if someone he knows drives, I would need to see proof of a valid license
Ok, so this would all take place during your custody time, correct?
no, it would take place during his vistation time
His court ordered visitation time?
when you say court ordered, we settled out of court, our settlement agreement states that I have full custody and he has vistation rights.
Again, It is NOT legally permissible for a parent to make the other parent's court ordered visitation contingent on proof of the person transporting the child being licensed to drive.
sorry, please disregard that. I did not finish typing.
What I meant to say was the following:
Again, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel. That said, It is NOT legally permissible for a parent to make the other parent's court ordered visitation contingent on proof of the person transporting the child being licensed to drive. If there is a concern about an unlicensed person transporting the child, there needs to be a modification to the custody order that allows for the parent to make that demand.
If there is a settlement agreement that has been signed or stamped by the court, that counts as an order.
so, could I loose custody because I have been requesting this each time he has vistation?
Custody is determined based on the best interest of the child. The court considers everything, but it has to be balanced against the totality of the situation. This is just one component of a very large, complicated picture. There is no rule that says if one parent denies visitation to the other, that parent will lose custody. You are talking about a child, not an old lamp, and the child's needs have to be taken into consideration. I'm not going to say that it can't be a factor, but I won't say that it will be a factor and I won't say that, by itself, it will change anything.
Great. Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Please remember to click accept once you are finished. Thank you.
can I save this chat?
Yes. You can return to this page at any time after clicking accept, you can use your right mouse key to highlight, copy and paste, or you can email [email protected] for a copy.
This has been extremly helpful. Thank you.
It was my pleasure! And please remember to click accept once you are finished. Thanks.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).