AGLO 1974 No. 53 - May 6 1974
CHILDREN ‑- MINORS ‑- CRIMES ‑- NONSUPPORT ‑- SUPPORT BY NATURAL FATHER AND STEPFATHER
Even though a stepfather is now obligated under chapter 207, Laws of 1969, Ex. Sess., to furnish necessary food, clothing, shelter and medical attendance for his stepchildren, the natural father of those children may still be subjected to a criminal prosecution for nonsupport under RCW 26.20.030 for failing to make court ordered child support payments.
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May 6, 1974
Honorable Anton J. Miller
P.O. Box 563
Raymond, Washington 98577 Cite as: AGLO 1974 No. 53
By recent letter you have requested our opinion on a question which we paraphrase as follows:
In view of the obligation imposed by chapter 207, Laws of 1969, Ex. Sess., upon a stepfather to furnish necessary food, clothing, shelter and medical attendance for his stepchildren, may the natural father of those children still be subjected to a criminal prosecution for nonsupport under RCW 26.20.030 for failing to make court ordered child support payments?
We answer this question in the affirmative for the reasons set forth below.
As amended by § 2, chapter 207, Laws of 1969, Ex. Sess., RCW 26.20.030 provides, in pertinent part, as follows:
"(1) Every person who:
". . .
"(b) Wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or stepchild or children or stepchildren or ward or wards: . . .
". . . shall be guilty of the crime of family desertion or nonsupport." (Emphasis supplied.)
In the case of State v. Brown, 52 Wn.2d 92, 323 P.2d 239 (1958), which was decided some years prior to the legislature's enactment of the foregoing 1969 [[Orig. Op. Page 2]] amendment, the supreme court held that a prima facie case of nonsupport under RCW 26.20.030 is not defeated by a showing that the defendant's child was not in actual need because of support given by a stepfather ‑ at least in the absence of any further showing that the stepfather had undertaken or consented to relieve the defendant of his statutory duty to support the child. In our opinion, that ruling is still valid ‑ and it is on the basis thereof that we answer your present question in the affirmative.
Even though a stepfather now is under a statutory obligation to provide for the support of his stepchildren, this does not mean that the natural father of the child or children in question has thereby been relieved of his own concurrent obligation to provide for such support. Accord, State v. Finister, 5 Wn.App. 44, 486 P.2d 114 (1971), wherein the court of appeals expressed itself on this precise point as follows:
"It is also contended that under RCW 26.20.030 the stepfather has also been made liable for the support of children of his wife by prior marriage. Consequently, where the state does not establish that the children actually need support, willfulness may not be presumed.
"We reject this contention. In the first place, State v. Ozanne, supra establishes that actual need for support is not an essential ingredient in the state's proof against a nonsupporting parent. In the second place, by including stepparents in the nonsupport statute, the legislature recognized that minor children in this state must be supported, even if the natural parent is unwilling or unable to do so. We refuse to accept the premise that the legislature intended by such inclusion to shift the burden of support from the natural parent to the stepparent or to furnish an excuse to the natural parent for not supporting his children. Under the statute, the burden of support is now joint and several."
Therefore, as then indicated in that case, for his failure to meet the obligations of that burden, [[Orig. Op. Page 3]] the natural father may still be subjected to criminal prosecution for nonsupport under RCW 26.20.030, supra.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
WALTER E. WHITE
Assistant Attorney General