In domestic cases, child support is often a key component to the matter, and who will pay and how much are complex questions that may be litigated. When a child support duty is ordered by a Court, the noncustodial parent who is to pay child support owes that support to the child(ren)1.
However, what happens in cases where the noncustodial parent does not pay child support and the child has become emancipated (currently, at age 19)? Previous blogs have discussed potential means by which to enforce a child support order including contempt petitions, revocation of non-payer’s driver’s license, and even jail time.
In cases where back child support is owed by a parent, but that parent does not face criminal charges until the child is emancipated, the custodial parent, who was not paid that child support, can be considered the victim, and restitution (repayment) of unpaid child support can go to that parent.
A recent Indiana Supreme Court case came to this conclusion that a custodial parent is a “victim” for restitution purposes of the non-custodial parent’s crimes for failure to pay child support. In Sickels v. State of Indiana, Father was criminally charged with three (3) counts of felony nonsupport of a dependent child after accumulating a child support arrearage of $84,000.002.
Due to Mr. Sickels being out of state and having to be extradited to Indiana to face these felony charges, by the time the trial and sentencing were completed, the children of the marriage were all emancipated; and therefore, Mother was named the “victim” in the case to receive restitution. The Court of Appeals held that Mother was not the victim, but rather the children were, as it has been generally established that “child support payments are for the benefit of the child, not for the benefit of the parent”.
The Indiana Supreme Court disagreed, and found that Mother was, in fact, the victim. Restitution is available to those who “have suffered injury, harm, or loss as a direct result of the criminal acts of a defendant”. In the case at hand, Mother did not receive child support from Father, and therefore, had to fully support the children without his Court-ordered assistance. That money Mother spent that should have been supplemented as support paid by Father was Mother’s loss, and therefore, she is the victim3.
As a public policy matter, the Court found that the problem with not allowing a custodial parent to be a victim means that potentially, dependent children could be responsible for suing their parents for unpaid child support. This would not only be potentially awkward, but might require the child to have to hire his/her own attorney to sue their parent. Naming the custodial parent as victim instead of the child removes this problem.
Child support is a contentious and often litigated matter in domestic law. Understanding the rights and duties of all parties regarding child support matters can prevent future issues. We hope that this blog post has been helpful in understanding restitution for unpaid child support. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- See e.g. Ind. Code §31-16-6-et al, Ind. Code §31-14-11-et al
- Sickels v. State, February, 2013
- The Court noted this is a general rule, and emancipated children may be victims and entitled to back support in limited instances. Also, the Court held that the custodial parent is not the only possible victim.