Georgia Child Support Enforcement

In difficult economic times, it's common to see an increase in failure to pay child support. Failure to pay support is sometimes the result of the paying parent having lost a job or had some other financial setback. If you're a parent who's required to pay support under a court order, it's important that you ask the court for a modification of the support amount before you find yourself facing a contempt petition. You may be able to get a modification if you can show changed circumstances.

If a non-custodial Georgia parent fails to pay child support, the parent or guardian (or other recipient of the child support) may file a petition for a legal contempt proceeding. This contempt petition is considered a new action, separate from the original divorce or child support proceeding, and is generally heard in the same court that issued the original child support order. The contempt action is only for enforcing support--you can't use it to modify child support (or child custody, though you can ask for a modification of a visitation schedule as part of the contempt proceeding).

The petitioner first must prove the failure to pay support. The respondent then must be allowed the opportunity to argue against the contempt petition and can try to persude the judge that there was a good reason for the failure to pay support, usually by trying to show that the failure to pay was not willful. For instance, if the respondent recently lost a job, the failure to pay may not be considered willful so much as the result of an inability to pay. On the other hand, if the respondent’s failure to pay is attributable to voluntarily giving up employment, the failure to pay would likely be considered willful.

Other potential defenses to a child support contempt action in Georgia might include a change in custody, the receipt of supplemental payments by the recipient parent, or an alternate agreement between the parties. Generally, a parent obligated to pay child support is not entitled to a “set-off.” For instance, buying shoes or school supplies for the child instead of paying child support would not likely be considered acceptable.

While “willfulness” is required for a Georgia court to find contempt in a failure to pay child support, a lack of willfulness does not necessarily relieve the parent of the obligation to pay. Thus, if a court finds that there was a failure to pay child support, it will determine how much is owed in arrears, and the arrearage must be paid regardless of the reasons for the failure to pay. However, if the failure to pay was willful, the court may add on fines or require the parent to pay the other parent's attorneys' fees. In extreme cases, the judge may order the parent who failed to pay to serve time in prison.

In Georgia, child support awards accrue interest at a rate of seven percent per annum, and any interest owed becomes part of the arrearage.

Georgia courts have broad discretion in structuring sanctions for contempt. The court may implement a payment schedule whereby the respondent is ordered to pay the arrearage in installments or by a certain date. The respondent can purge himself of the contempt by paying the amount owed in full. If the court imprisons the respondent for willful failure to pay child support, the court will set forth a purge amount. Once the respondent pays that amount, he will be released from imprisonment. The respondent may apply for release at any time if he is able to show an inability to pay or a good faith willingness to pay. A court will not continue to hold someone in jail for failure to pay child support if he can show an inability to pay the purge amount. Of course, courts are often mindful of the fact that imprisoning someone for failure to pay child support can result in a loss of employment and, thus, a total loss of income.