While most men facing criminal non-support charges for unpaid child support do not dispute they are the father; some clients express a desire to raise this as defense. This is seldom possible.

What matters is the jury instructions:

422.08 CRIMINAL NONSUPPORT

(If) you find and believe from the evidence beyond a reasonable doubt:

First, that (on [date]) (on or about [date]) (between [date], and [date]), in the State of Missouri, the defendant failed to provide adequate support for [child.], and

Second, that at that time [child.] was the defendant’s (child), and

Third, that defendant was legally obligated to provide support for [child.] under an order… , and

Fourth, that the order required defendant to make payment of [Identify payment obligation.] as support for [child.], and

Fifth, that in failing to provide such support, the defendant acted knowingly, and

Sixth, that defendant is in arrearage on an order of child support in excess of the total of twelve monthly payments [for a felony] due under the order of child support, (and)

Seventh, that [child.] was not emancipated,) then you will find the defendant guilty (under Count ) of criminal nonsupport.

And while it is true that one of the elements of the “crime” is that the defendant is the father, in most cases this has already been ruled on by a court — the court that issued the order for child support. If that is the case, you generally cannot use non-paternity as a defense in a subsequent criminal case. This is called “res judicata”):

• The “Finality” Rule: If you were served with a paternity suit years ago and ignored it (resulting in a default judgment), or if you signed a voluntary acknowledgment of paternity, the law treats that matter as settled (Res Judicata).

The State will just be able to offer that previous “judgement” to prove the second element of the crime — “at that time [child] was the defendant’s (child).” If the paper says you are the father, the criminal court accepts it as fact.

(Very Time limited Set Aside option

If you do have a judgement against you ruling that you are the father and ordering you to pay child support you generally cannot simply stop paying and claim you are “not the father” in criminal court.

• You must first go to civil court to have the paternity judgment “set aside” or vacated (often under RSMo 210.854)*.
  • A public defender cannot assist you in trying to do this, because s/he is limited to criminal defense.
• Until that civil judgment is legally overturned, the obligation to pay remains, and the threat of criminal charges persists.

*The real problem then is the time limits in that law – RSMo 210.854.1 (time limits that have often already passed by the time a person in charged with felony non-support (which requires one year of arrears):

In the event of the entry of a judgment or judgments of paternity and support, whether entered in one judgment or separately, a person against whom such a judgment or judgments have been entered may file a petition requesting a circuit court with jurisdiction over the subject child or children to set aside said judgment or judgments in the interests of justice and upon the grounds set forth in this section…. [T]he petition shall be filed within two years of the entry of the original judgment of paternity and support …

Missouri courts have affirmed this two-year limitation period repeatedly (see, e.g., T.B. III v. N.B. Mo. App. ED 2025); and it cannot even be extended or tolled by Missouri’s general tolling statute for fraudulent concealment (something men could do before 2009).

Bottom line > if your court order is over two years old, you can’t seek to “set aside” that judgment and you can’t raise paternity as a defense in your criminal non-support case.