Understanding the Problem
In North Carolina child support cases, the question is what steps are available when a parent has a valid child support order but the other parent is not making the ordered payments. The appropriate response usually depends on the payment history, the amount of the delinquency, and whether the case is being handled through a child support enforcement agency. Wage withholding, contempt proceedings, and collection of past-due amounts serve different purposes and may require different proof.
Apply the Law
North Carolina provides several remedies for enforcing a child support order. Enforcement may focus on getting current payments flowing through income withholding, asking the court to hold the parent in contempt, or reducing past-due support to a money judgment that can be collected like other judgments. In a IV-D case, the designated child support enforcement agency monitors compliance and decides which enforcement procedures to initiate, although a party is not barred from independently pursuing civil contempt or income withholding.
Key Requirements
- A valid support order exists: Enforcement tools generally require an existing court order that states the payment amount and due dates.
- A measurable delinquency: Payment records should show the amount overdue and when the payments were missed. Some remedies have specific thresholds, such as delinquency equal to one month of support or failure to receive support for two consecutive months.
- The proper enforcement procedure: An obligee may use an affidavit to ask the clerk or a district court judge for a show-cause order addressing income withholding, contempt, or both. In a IV-D case, the child support enforcement agency generally initiates the enforcement procedures it considers appropriate.
- The required proof: Reducing arrears to judgment focuses on the amount owed. Civil contempt generally requires proof of willful noncompliance and a present ability to comply, while criminal process under the two-month provision requires probable cause to find willful neglect or refusal to pay.
What the Statutes Say
- N.C. Gen. Stat. § 50-13.4 authorizes multiple child support enforcement remedies. Past-due periodic payments may be reduced to a judgment, periodic support orders may be enforced through contempt proceedings, and child support judgments may be enforced through execution and related collection procedures.
- N.C. Gen. Stat. § 50-13.9 allows the clerk or a district court judge, upon an obligee’s affidavit, to order the obligor to appear and show cause regarding income withholding, contempt, or both. It states that income withholding may be ordered when the delinquency equals one month of support.
- N.C. Gen. Stat. § 110-138.1 allows a person who has not received ordered support for two consecutive months to apply to a magistrate for criminal process. The magistrate must find probable cause that the responsible parent willfully neglected or refused to make the payments.
Analysis
If there is a current support order and the payment history shows missed payments, enforcement can focus first on restarting payments through income withholding and, if appropriate, requesting a contempt show-cause hearing. If the goal is to collect past-due amounts, the court may determine the arrears and reduce them to a money judgment without requiring the same proof of willfulness needed for contempt.
Process & Timing
- Identify who will act: In a IV-D case, contact the designated child support enforcement agency because it monitors compliance and initiates the enforcement procedures it considers appropriate. In another case, the parent owed support may independently seek income withholding, civil contempt, or a judgment for arrears.
- Gather records: Obtain the current support order and an accurate payment history showing the amounts due, amounts received, and total arrears. Employment and income information about the nonpaying parent may also assist with income withholding.
- Request enforcement: An obligee may submit an affidavit asking the clerk or a district court judge to issue an order requiring the obligor to appear and show cause regarding income withholding, contempt, or both. A request to determine arrears and reduce them to judgment may also be appropriate.
- Serve the order and attend the hearing: A show-cause order must be properly served. The order may require the obligor to bring records concerning employment, licensing privileges, disposable income, and income sources.
- Watch the statutory thresholds: A court may order income withholding when the delinquency equals one month of support. If no ordered support has been received for two consecutive months, the person owed support may apply to a magistrate for criminal process, but probable cause of willful neglect or refusal is required.
Exceptions & Pitfalls
- Contempt requires the right proof: Civil contempt generally depends on showing that the obligor had the ability to comply and willfully failed to do so. A genuine inability to pay may prevent a contempt finding even though the unpaid support remains owed.
- Judgment language matters: Past-due periodic payments may be reduced to a money judgment. If that judgment does not provide for periodic payments, contempt may not be an available method for enforcing the judgment, although ordinary judgment-collection remedies may remain available.
- Service and notice problems: Enforcement proceedings may be delayed if the obligor is not properly served or the paperwork does not adequately identify the delinquency and requested relief.
- IV-D and non-IV-D procedures differ: The designated agency monitors and initiates enforcement in a IV-D case, while a parent in a non-IV-D case may need to initiate enforcement directly. The clerk maintains the official court records.
- Criminal process is not automatic: Two consecutive months without ordered support permit an application to a magistrate, but criminal process requires a probable-cause finding of willful neglect or refusal to pay.
Conclusion
North Carolina allows unpaid child support to be enforced through income withholding, contempt proceedings, and a judgment for arrears. A delinquency equal to one month of support may support income withholding, while two consecutive months without ordered payments may permit an application for criminal process if the nonpayment was willful. The next step is to gather the order and payment records, then contact the IV-D agency or submit the appropriate affidavit and enforcement request in the existing case.
Talk to a Family Law Attorney
If a parent is not paying court-ordered child support, our attorneys can explain the available North Carolina enforcement options and help identify the appropriate next step. Call (919) 341-7055 today for a free case evaluation.
