Failing to pay a court ordered child support obligation can land the non complying parent in jail. However, there are certain procedures that must be followed before incarceration can occur.
An order of civil contempt for failure to pay child support requires findings of wilful failure to pay ordered amounts. If incarceration is to be orderd as a result of finding wilful contempt, the court must then make the affirmative finding that the contemnor possessses the present ability to comply with the purge. Miller v. Murrah, 14 So.3d 1019 (Fla. 5th DCA 2009); Brown v. Brown, 658 So.2d 627 (Fla. 5th DCA 1995).
The key too these cases requires that an order be in writing, and that these findings must be clearly set forth in the order. Alan R. Burton, Esq. is well qualified to assist you in preparation of appropriate orders for this purpose.
Todd Alan Grant was successful in securing his release from custody after having been jailed for non-payment of support. In his case, there was never a written order entered, and he was promptly released. Grant v. Department of Revenue on behalf of Heather R. Kopp, 27 So.3d 190 (Fla. 5th DCA 2010).
Rafael Carbonell had much the same luck as Mr. Grant. He was also incarcerated for non-payment of support, but upon filing an appeal, he was also promptly released. The order which had him jailed failed to make the specific affirmative finding that he had the present ability to comply with the purge amount as set by the court. Carbonell v. Department of Revenue on Behalf of Deydry Capella, 30 So.3d 664 (Fla. 5th DCA 2010).
If in fact there is wilful noncompliance with a child support order, it is incumbent upon the trial judge to be meticulous in his or her findings. The order directing incarceration must be carefully drafted if it is to withstand any subsequent attack.
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