The Indiana Supreme Court recently held that a custodial parent may be entitled to restitution based on a child-support arrearage even if the children are no longer dependents at the time the restitution order is issued.

The facts

The case before the court involved a father of three children who in 2001 was charged with three counts of felony nonsupport of a dependent child and an arrest warrant was issued. At the time the charges were filed, the father was no longer living in Indiana, and the state to which he had moved did not extradite him to face those charges in Indiana until 2010. By 2010 all three of the man’s children were emancipated adults.

Upon his extradition to Indiana, the father was convicted on all three counts of felony nonsupport of a dependent child, sentenced to ten years of direct community correction placement and ordered to pay restitution to the children’s mother, who had been the custodial parent, in the amount of the child-support arrearage.

Basis of restitution order

The restitution order was based on an Indiana criminal law statute authorizing the court to order, in addition to any sentence imposed upon a person for a misdemeanor or felony, a person to make restitution to the victim of the crimes for which he or she has been convicted. Because the father was convicted of three counts of felony nonsupport of a dependent child, there was no disagreement between the court and the defendant that the statute authorizing the restitution order was applicable to the case. However, the defendant argued that ordering restitution to the custodial parent was improper because she was not a “victim.”

The “victim” of unpaid child support

The statute does not define “victim,” but courts in Indiana have construed it to mean any person who, as a direct result a criminal act or acts, suffered injury, harm or loss. In this case, the criminal act was the failure to pay child support, and the defendant argued that his children, not the custodial parent, were therefore the victims of his criminal act.

It is true that the right to receive child support belongs solely to the child. This means although child-support payments are made to the custodial parent, it does not belong to him or her and is only being held in trust for the dependent children. Thus, when a child-support arrearage for a dependent child is ordered, the arrearage will be paid to the custodial parent to hold in trust for the child. Thus, if the children in the present case had still been dependent at the time restitution was ordered, the payment would still have been made to the custodial parent but only to hold in trust for the benefit of the dependent children.

But what if restitution is ordered after the children are grown and no longer dependent on child support – should the non-custodial parent be absolved of any obligation to pay? The Indian Supreme Court says no. According to the Court, if a child-support arrearage is ordered after the children are no longer dependents, the payment is still made to the custodial parent because it is presumed that he or she had to make-up the child-support shortfall with his or her own funds for which he or she is entitled to compensation.

Speak to a family law attorney

If you have questions about child support, contact a lawyer in your area who is experienced in family law and child support matters to schedule a consultation to discuss your options.