Child Support — what if the other parent doesn't pay or is unreachable?

What is child support?

Child support, or the right to maintenance, is the legal right of one person and the corresponding duty of another to provide the funds needed to cover living expenses. In everyday speech, the term is primarily used in reference to the maintenance of children. The duty to support children rests with their parents and, in special cases, with other close relatives. Although in most cases the amount each parent must contribute is not set by a court decision, it is sometimes necessary for the court to determine, in judicial proceedings, the amount of the contribution toward a child's maintenance. This most often happens in connection with divorce, or the end of a non-marital or romantic relationship.

When the other parent avoids paying support

Unfortunately, it is a common situation in practice that one parent fails to contribute to their child's maintenance, or contributes only partially. Very often these are situations in which the parent does not maintain personal contact with the child, or does so only sporadically. Not infrequently, the parent relocates abroad, changes their registered address and cuts off all contact, or avoids accepting court documents — all in order to avoid this obligation.

Given that such situations are unfortunately common in practice, I think it is important to emphasize that the fact that the other parent is abroad, has no registered residence, has an unknown residence, or lacks sufficient funds does not, under any circumstances, suspend their legal obligation to support their child. A child has needs — food, education, clothing, and so on — that must be met every day and cannot "wait" for the other parent. For this reason, the law has provided for several mechanisms to protect this right of the child.

Civil proceedings for child support

If there is no court judgment on the amount of the maintenance contribution, it is necessary to initiate civil proceedings before the competent court.

If the other parent avoids accepting court documents, has an unknown residence, has moved abroad, and court summonses cannot be served on them, it is important to note that in all such situations the court has mechanisms at its disposal to continue and conclude the proceedings — such as, for example, posting the documents on the court's notice board or appointing a temporary representative.

Who can be a temporary representative, and in which cases is one appointed?

A temporary representative is an attorney entered on the list of temporary representatives maintained by the competent bar association. The court appoints a temporary representative, following the order on the list of temporary representatives submitted to the court by the bar association, when:

• the residence of the defendant is unknown and there is no authorized representative
• the defendant is abroad and the court documents could not be served on them
• and in other cases prescribed by law

The appointed attorney has the rights and duties of a statutory representative of the defendant. This means they may, on the defendant's behalf, present facts and evidence and undertake all legal actions that the defendant themselves could have taken. Appointing a temporary representative allows the civil proceedings to continue without obstruction, while at the same time protecting the defendant's rights.

Our firm has handled a case of exactly this kind. The decision in that case is available on the website of the Supreme Court of Serbia.

Enforcement proceedings

If, after the judgment is rendered, the parent still fails to contribute to maintenance, or contributes only partially, enforcement proceedings may be initiated, carried out by a public enforcement agent. In these proceedings as well, a temporary representative may be appointed for the enforcement debtor under the same conditions as in civil proceedings. In other words, even if the parent's residence is unknown, it is still possible to carry out enforcement proceedings and satisfy the claim from the enforcement debtor's funds — through garnishment and transfer of wages or other regular monetary income, and even through seizure and sale of movable and/or immovable property. It is important to note that claims arising from statutory maintenance obligations enjoy priority in satisfaction over other claims, as prescribed by law.

The Alimony Fund

If enforcement proceedings initiated to secure a child's right to maintenance are not carried out in full, or only partially, for more than two months from the date the enforcement debtor receives the enforcement order, there is a possibility of securing temporary maintenance from the Alimony Fund, which is financed from the state budget and from donations.

It is important to highlight a few key points about this right:

• it is temporary maintenance — it is paid exclusively going forward, in a monthly amount that may not exceed the minimum maintenance sum set under the Family Law
• "going forward" means that an already-due claim cannot be satisfied, but only amounts that fall due in the future
• the Alimony Fund does not assume an unlimited obligation to pay child support — it pays the monthly amount set by the enforceable court decision or settlement, but if that amount exceeds the minimum maintenance sum set under the Family Law, the Alimony Fund will pay only the minimum maintenance sum
• payments continue until satisfaction from the debtor's assets begins — the public enforcement agent is required to check every month whether the enforcement debtor has acquired assets suitable for enforcement, and once satisfaction from those assets begins, must notify the Alimony Fund so that payments can be discontinued

Criminal liability

Finally, I think it is important to emphasize that failing to provide child support constitutes a criminal offense, punishable by a fine or imprisonment of up to two years, and, where more serious consequences arise for the person being supported, by imprisonment from three months to three years. For this criminal offense to exist, the maintenance obligation must have previously been established by an enforceable court decision or an enforceable settlement before a court or other competent authority.

Although the legislature's intent in prescribing a criminal conviction was to express society's condemnation of socially unacceptable conduct, in practice, filing a criminal complaint and pursuing criminal proceedings against a parent often prove to be an effective way of prompting the parent to begin fulfilling their legal duty to support their child. Courts frequently impose a suspended sentence on the offender, conditioned on payment of overdue amounts and continued maintenance, under threat of revocation of the suspended sentence. This means that if the offender breaches this condition, the court may revoke the suspended sentence and impose the prison term originally set by it.