Standing to Make Application for Nonsupport Warrants

Subject:

Requested By: Miss Willie C. Sutton Pamlico County Director of Social Services

Mr. Grady Simpson Pamlico County IV-D Child Support Worker

Question: Is a designated representative (IV-D agent) working for the North Carolina Child Support Enforcement Program a proper person to demand support and then swear out a warrant for nonsupport of children (legitimate and illegitimate) when the mother or the custodian of the child refuses to do so?

Conclusion: Yes, if the child is, or is likely to become, a public charge.

Willful neglect or refusal to provide adequate support for an illegitimate child is a violation of

N.C. Gen. Stat. 49-2. In order to satisfy the "willfulness" element of this statute, there must be a prior notification of birth and demand for support before the issuance of a warrant. State v. Ingle, 20 N.C.App. 50, 200 S.E.2d 427 (1973). Standing to make the necessary demand and obtain issuance of a warrant for this offense lies, if the child is, or is likely to become, a public charge, in ". . . the director of social services or such person as by law performs the duties of such official in said county where the mother resides or the child is found." N.C. Gen. Stat. 49-5. This right to make such demand to have the warrants issued in public charge cases overrides objections of the mother or a custodian. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962). In Dixon, the Court states as follows:

"In all likelihood the mother will continue to be its custodian. She may neither need nor desire any assistance or support from the father. The statute is so worded that she may decide whether to call upon the father for assistance. In the event she elects not to make the demand, her election will be respected unless the child is likely to become a public charge; then the Director of Public Welfare may proceed." State v. Dixon, 257 N.C. at 655, 127 S.E. 2d at 247. (Emphasis supplied.)

This statement by the Court is a reflection of its opinion that Chapter 49, as it relates to criminal bastardy proceedings, is purely social legislation. Specifically, its purpose is to prevent illegitimates from becoming public charges and any benefits accruing to a child are incidental. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E.2d 18 (1949). The phrase ". . . or such person as by law performs the duties of such official in said county . . ." found in N.C. Gen. Stat. 49-5 clearly allows for someone other than the Director of Social Services to have standing to institute proceedings of this nature. Logically, this alternative person to the County Director of Social Services is the same as the "designated representative" for the North Carolina Child Support Enforcement Program recognized in N.C. Gen. Stat. 110-130 whose duties under that statute include the right to institute analogous civil proceedings. These "designated representatives" are commonly called "IV-D agents". (They are so called because the enabling legislation for the Child Support Enforcement Program, P. L. 93-647 (42 U.S.C. §§ 651-660), was an amendment to Title IV, Part D of the Social Security Act.) These "IV-D agents" may be county or State employees depending on whether the Child Support Enforcement Program in the particular county in question is county or State operated. (Alternative arrangements making "IV-D agents" State employees in some counties are authorized by N.C. Gen. Stat. 110-141.)

The analogous nonsupport statutes covering legitimate children, as opposed to illegitimate children, of responsible parents are listed in Chapter 14, Article 40 of the North Carolina General Statutes. Like cases brought under N.C. Gen. Stat. 49-2, issuance of warrants for nonsupport under these statutes must be preceded by a demand for support on the responsible parent. State v. Hall, 251 N.C. 211, 110 S.E.2d 868 (1959).

Unlike cases involving nonsupport of illegitimate children, there is no statute specifically enumerating who is an appropriate person to make application for arrest warrants for nonsupport of legitimate children. As a general rule most statutes do not specifically list those persons who would have standing to so apply; rather, this determination is left to a case by case basis. Theoretically, anyone supplying the requisite probable cause may prompt, by virtue of N.C. Gen. Stat. 15A-304, a judicial official to issue a nonsupport warrant.

Even the most conservative view of the standing issue for cases involving legitimate children does not warrant restricting the class of persons having standing to fewer than those designated by statute (N.C. Gen. Stat. 49-5) for illegitimate children. The same circumstances and policies discussed above that justify institution of criminal actions by the "designated representative" under Article 1, Chapter 49 of the General Statutes prevail for instituting action for nonsupport of legitimate children under Article 40, Chapter 14. Since these statutes deal with the same subject matter, nonsupport of children, they should be construed in pari materia and harmonized, if possible, to give effect to each. 7 N.C. Index 2d, Statutes § 5. Accordingly, the "designated representative" is an appropriate person, in public charge cases, to supply the probable cause necessary for issuance of a warrant under Article 40, Chapter 14 of the North Carolina General Statutes.

Rufus L. Edmisten Attorney General

R. James Lore Associate Attorney General