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When facing a contempt hearing for the non payment of child support, both sides will need to be well prepared. If the hearing goes badly, it could see the person being held in competent serving jail time.
In simple terms, when a court finds you “in contempt,” it means that the court has ordered you to do something (like pay child support), and you have disobeyed the court. Therefore, you are in contempt.
With child support issues, a finding of contempt is usually aimed at coercing the disobedient party to pay the child support due. Whether this means finding a job, or keeping to the payment schedules, the court will compel the parent to make the required payment. It does this to protect the interest of the child, so that the child’s financial needs and stability are not jeopardized.
During the hearing, the court will listen to reasons given and make a determination of the situation. If the court finds contempt, it may order jail time, from a week to up to six months. Usually, a jail sentence can be shortened if the contemptuous party pays the amount due in child support.
Party in Need of Child Support Payments
Per Arizona Revised Statute 25-503, if you are entitled to receive child support and you have not received court ordered payments, you or the Department of Child Support Services may file with the clerk of the superior court, a request for judgment of arrearages.
The request should be accompanied by an affidavit indicating the name of the party obligated to pay support and the amount of the arrearages. The hearing will be set twenty days after service in Arizona or within thirty days after service outside this state.
For the court to find other parent in contempt, it means that three things must be proven to the court.
- That a court order has commanded one parent to pay child support (a non-court ordered child support agreement is not sufficient)
- That the parent has clearly and undoubtedly disobeyed the court order
- That the parent had the ability to comply with the court order at the time of the contempt judgment
To prepare for the hearing, you should gather all the evidence you can to prove these points to the judge. Usually, a judge will not find contempt if evidence of these three elements cannot be established.
It is for this reason, as well as countless others, that it is in your best interest to work with an attorney. Many families in Arizona rely on child support for their monthly income and the well-being of their child, having an attorney work with you is the best way to ensure that these matters are well taken care of and an issue like this will not happen again.
The Defaulting Party
If you do not think you have done anything wrong, or there are circumstances beyond your control which have prevented you from making your child support payments, there are ways to challenge a finding of contempt.
Firstly, if any of the three elements of contempt listed in the previous section do not apply to your situation, you must prove this to the court through evidence. For example, if you are unemployed, it helps that you prove that you are looking actively for work. The court will want to see evidence, such as paperwork, letters, emails, job searches, interview dates.
Also, the court will not find contempt if the defaulting parent is on:
- Social Security Disability
- VA Disability with a high disability rating
- Temporary Assistance for Needy Families
What to Do If You Cant Afford Child Support
The form and equation of child support in Arizona is regulated by ARS 25-320. It is based on a formulaic equation called the Income Shares model, which is created by the Child Support Guidelines and approved by the Arizona Supreme Court.
If you cannot afford child support payments due to a change in your financial circumstances, you have to ask the court to modify the amount of child support. This requires a separate process from the contempt hearing, during which you file documents with the court asking for the modification and establishing your need to modify the amount. The court has the power to order a new amount and payment plan.
How to Avoid Being Held in Contempt for Not Paying Child Support
The best way to not be held in contempt is to pay your child support in the first place. However,in certain circumstances, noncustodial parents find it difficult to meet their child support obligations. If that is your situation it would be wise to apply for the Arrears Forgiveness Opportunity or Hardship Program of the Department of Child Support Services.
But the best thing you can do is contact the other parent or the court when there has been a change in your financial situation. While the parent that pays child support is responsible to make these payments monthly, it is not in the best interest of anyone to go through a contempt hearing. The other parent doesn’t want their supporter to go to jail.
Don’t wait for your contempt hearing to be called before you let the courts know about your financial change.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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