Introduction
A capias warrant is a court order to arrest and detain someone in order to guarantee their appearance in court. They’re typically issued for people who fail to attend a mandatory court appearance, ranging from felony defendants who are out on bail to simple cases where someone misses an appearance in traffic court. Capias warrants are civil warrants, so they do not carry a criminal charge.
In child support cases, the court will often issue a capias warrant when a custodial parent files a complaint against the non-custodial parent for failing to adhere to the child support order (which amounts to contempt of court). As long as the non-custodial parent voluntarily appears in court, they won’t be arrested. If the non-custodial parent refuses to appear, they’ll be arrested and forced to appear in court, where the judge will order payment, a fine, jail time, or all of the above.
It’s safe to say that if you have a capias warrant for your arrest due to child support arrears, it’s better to appear in court willingly than to be arrested and forced to appear. If you can no longer afford to pay child support at the levels determined in your child support order, or if your child support arrears are so large that you cannot pay the balance, you should consult with a family law attorney before appearing in court. Depending on your situation, you may be able to file a motion to modify the child support order, and you may be able to negotiate a settlement agreement with your former partner and the state collection agency.
Can You Get a Criminal Warrant for Child Support?
The court can issue a criminal warrant when state or federal prosecutors get involved in a child support case, which only happens when there are significant child support arrears (the legal term for unpaid child support). Criminal warrants are backed by a misdemeanor or felony charge, so these are far more serious than a capias warrant.
At the state level, the state child support agency can request that the local district attorney’s office file criminal charges against a non-custodial parent. Depending on the value of child support arrears and the length of time since the last payment, the issue can be a class 1 misdemeanor or a class 6 felony charge. Note that in Arizona, a class 1 misdemeanor is subject to a $2,500 fine and up to 6 months in jail, and a class 6 felony may receive up to a year and a half in prison. The courts are generally willing to downgrade a class 6 felony to a class 1 misdemeanor for first-time offenders, but you’ll need a good attorney to plead your case.
At the federal level, the Deadbeat Parents Punishment Act allows federal prosecutors to pursue misdemeanor and federal charges against non-custodial parents who are significantly behind on child support. A parent with at least $5,000 in child support arrears who hasn’t made a payment in over a year may be charged with a misdemeanor and punished with up to 6 months in jail. A parent with at least $10,000 in child support arrears who hasn’t made a payment in over two years may be charged with a felony and incarcerated for up to two years.
It’s fairly rare for the federal government to get involved in a child support enforcement case. In most cases, the federal government will only step if the case crosses state lines (e.g., the non-custodial parent moves or runs away) and only when all state-level options have been exhausted.
Child Support Enforcement Measures
Criminal charges, contempt of court, and capias warrants are just a few of the enforcement measures that the state child support agency has at its disposal when it comes to collecting child support arrears. These are often the last resort, though, as they are more for punishment than to collect child support arrears (it’s difficult to collect child support when the non-custodial parent is in jail or prison).
In the state of Arizona, the Division of Child Support Services (DCSS) can take the following actions to enforce a child support order and collect child support arrears:
- Asset seizure – DCSS can take bank accounts and other property to collect child support arrears with a court ordered judgement, or when the non-custodial parent is at least 12 months behind on child support.
- Credit bureau reporting – this is often one of the first measures that DCSS will use to enforce unpaid child support. A series of negative reports can have a serious impact on your credit score.
- License suspensions – DCSS has the power to administratively suspend a professional or occupational license (contractor’s license, securities license, etc.) when a non-custodial parent is at least 6 months behind on child support. DCSS can also ask the court to suspend or revoke a driver’s license or recreational license (such as a hunting license)
- Lottery winnings offset – an “offset” is when the government intercepts a portion (or all) of a lump sum payment to you from a state or federal government entity. In this case, DCSS can intercept part of all of your lotter winnings from the state lottery.
- Property liens – DCSS can place a lien on property that can be seen by lenders, title companies, and potential buyers.
- State income tax refund offset – DCSS can request that the Arizona Department of Revenue intercept a portion or all of a non-custodial parent’s state income tax return if there are at least $50 in arrears.
- Wage garnishment – in Arizona, DCSS is required to issue an income withholding order for any child support order. If the parent falls behind on child support payments, DCSS can issue a new income withholding order to garnish even more wages. Depending on the value of child support arrears and whether the non-custodial parent is responsible for another child, they could see up to 45% – 65% of their wages garnished.
What to Do If You Are a Non-custodial Parent and You Cannot Afford Child Support
If you are behind on your child support payments and are unable to afford them at the current level, you should meet with a family law attorney to evaluate if your case is eligible for a child support modification order. You can also work with an attorney to reach a settlement agreement with the state collection agency to avoid punitive enforcement measures like contempt of court and a capias warrant.
Call the Family Law Team at (480) 467-4348 to discuss your case today.