Although many states, including New York, have laws criminalizing failure to pay child support, the imposition of the penalty is still subject to scrutiny by the U.S. Constitution.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  The applicable provision of the criminal statute states: 

§ 260.05 Non-support of a child in the second degree.
 
   A  person  is  guilty  of non-support of a child when, being a parent,
  guardian or other person legally charged with the care or custody  of  a
  child  less  than  sixteen years old, he fails or refuses without lawful
  excuse to provide support for such child when he is able to  do  so,  or
  becomes  unable  to  do  so,  when,  though  employable,  he voluntarily
  terminates his employment, voluntarily reduces his earning  capacity  or
  fails to diligently seek employment.
  Failure to provide child support for one’s child in the second degree is a class A misdemeanor.    If the person has been previously convicted of this crime within the past five years, they can then be charged with a class E felony. (Penal Law Section 260.06)

         A class A misdemeanor is punishable by up to one year in jail in New York, while a class E felony is punishable by up to five years in prison.   Criminal punishment is just one of the several options the courts can utilize in sanctioning a non-custodial parent for not paying court ordered child support.  Imposing criminal sanctions only goes to perpetuate the plight that many non-compliant parents face.  Several scenarios give rise to non-payment in the first place.  First, often times the non-custodial parent becomes unemployed or underemployed and is stuck with an obligation to pay an amount that far exceeds his income.  In New York, it is the responsibility of the payor-parent to go to court to file a Modification Petition, seeking a Downward Modification.  Unfortunately, though, more often than not payor-parents are discouraged from filing these petitions or are flat out denied by the courts, thereby binding that parent to the previously imposed obligation.  Next, sometimes an obligation of support was imposed by the court on “default”, where the payor-parent was not present and therefore unable to provide information as to his/her actual ability to pay.  Consequently, a Downward Modification petition based on default has a higher probability of being granted if the default is found to be “excusable”.  And finally, inability to pay arises as a result of the court hearing from both parties but deciding that the resources of the payor-parent is adequate enough to provide for the child(ren) in the amount ordered.  This circumstance happens to be the most difficult to challenge, since a Downward Modification petition requires a finding of “unexpected or unanticipated change in circumstances”, which usually does not exist in this particular scenario.
          Nontheless, the court’s imposition of the criminal sanction can be the most debilitating in any of these scenarios since child support, whether sporadic or persistent, is usually provided by earned income.  Thus, any period of incarceration can jeopardize current employment or future employment since criminal convictions minimizes one’s chance of being or becoming employable.  Furthermore, no real purpose is served by incarceration since the payor-parent has no real incentive to pay, the child(ren) do not benefit financially, emotionally or psychologically and the courts’  calendars remain overwhelmed with recidivists who could have been spared if they were given the opportunity to be heard.

          In South Dakota, there was a recent decision by that state’s highest court, that found that the imposition of jail for failure to pay child support was unconstitutional because it violated the Fourteenth Amendment.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  A court order requiring a man to spend 10 days in jail every time he failed to pay monthly child support was unconstitutional because it amounted to criminal punishment imposed without a trial, the South Dakota Supreme Court ruled.  In its unanimous opinion, the high court said a circuit judge must re-examine the case to determine the proper penalty for the payor-parent, who was found to owe nearly $63,000 in support for two children.  Athough the circuit court judge found that the payor-parent had an ability to pay, and was therefore in contempt for not paying, the high court stated that because the contempt finding was criminal in nature, that he had the right to a trial.  So it was not the criminal element of the punishment that made the circuit court’s finding unconstitutional, but the imposition of the recurring sentence of ten days in jail, without affording him the opportunity to present a defense was the problem.