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August 8th, 2012 by Robert Franklin, Esq.
The Michigan Supreme Court has ruled that, while inability to pay child support is not a defense to a felony charge of failure to pay, impossibility of payment is a defense.  Here’s the opinion, so I don’t have to go through the difference between “inability” and “impossibility.” (Michigan Supreme Court, 7/31/12).

Keep in mind, this is not about parents who are found in contempt by a family judge for violating an order to pay child support.  All the law surrounding that, complete with the absence of a right to counsel, remains intact.  What this case is actually about is the unspeakably draconian nature of child support enforcement.

This case concerns a criminal statute that makes non-payment of child support a felony.  If you’re a day late or a dollar short, the State of Michigan can incarcerate you for up to four years and fine you $2,000.  Not only that, but once the state arrests you, you remain behind bars until trial unless you post a cash bond of $500.00 or 25% of the arrearage, whichever is larger.  That means that, as a practical matter, fathers who are too poor to pay stay in jail until their trial, and all the while their arrearage grows.  How that helps children receive support, no one seems able to explain.

The Michigan Supreme Court actually decided three cases, but I’ll deal with only one, that of Selesa Likine.  The court’s recitation of the facts in her case is pretty confusing.  It’s not at all clear whether she’s the deadbeat the state claims she is or a desperately ill person trapped in a nightmare.  Likine and her husband, Elive Likine divorced in 2003 with him receiving custody of their three children.  Of course, the fact that the children’s father got custody by itself suggests there was something seriously wrong with Selesa, and indeed, the trial court noted her “history of fairly serious mental health conditions including a diagnosis of depressive-type schizoaffective disorder.

That the court at first ordered her to only $54 per month for three children tends to support the idea that Selesa didn’t have much in the way of earning ability, for whatever reason.  A year later, the court increased the amount to $181 per month, but soon stopped paying.  Then, the court increased the amount to $1,131 per month because Selesa had moved into a $400,000 house on the mortgage application for which she had listed her income as $15,000 per month.  Because of that and what it figured to be her cost of living, the court imputed income to her of $5,000 per month.

Now, it seems incredible that this woman earned that much per month.  Her earnings statement from Social Security showed no earnings at all from 1985 – 2002.  She was on disability due to her mental illness and her only demonstrable income was $631 per month in SSI benefits.  The lien holder had long since foreclosed on the house that had been her boyfriend’s purchase anyway.  Periodically, she was hospitalized for her mental condition.  It seems clear that she lied on her mortgage application.

Elive said that, after the original divorce decree granting him custody Selesa had told him that she would never pay child support because “women don’t pay child support.”

Selesa was convicted of felony failure to pay child support and she appealed based in part on the idea that it was impossible for her to pay what had been ordered.

The Supreme Court made clear that the Michigan criminal statute is  one of strict liability.  That means that a person charged with an offense under it need not have intended to not pay.  If a parent is ordered to pay and doesn’t (again, the amount of the arrearage and the time in which it continues are irrelevant), he’s guilty.  Period.  The only defenses to the charge are that he didn’t receive notice of the order, the state charged the wrong person, and the like.  In almost all cases, then, there are no defenses.  Don’t pay, go to prison.

But now there is a defense – impossibility.  The state Supreme Court ruled that, if it is literally impossible for a parent to pay what’s owed, then the state can’t imprison him, and, in addition to the law itself, it’s the court’s definition of ‘impossible’ that brings home the Dickensian world of child support.

Thus we hold that to establish an impossibility defense for felony non-support, a defendant must show that he or she acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own.  In our view, “sufficient bona fide efforts to seek employment or borrow money in order to pay” certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165.  Instead, defendants charged with felony non-support must make all reasonable efforts, and use all resources at their disposal to comply with their support obligations.  For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order.  Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay.  A defendant’s failure to undertake those reflects “an insufficient concern for paying the debt” one owes to one’s child, which arises from the individual’s responsibility as a parent. (emphasis in the original)

The court then provided a “nonexhaustive list” of efforts a non-custodial parent has to make if he is to avail himself of the defense of impossibility.

These should include whether the defendant has diligently sought employment, whether the defendant can secure additional employment such as a second job; whether the defendant has investments that can be liquidated; whether the defendant has received substantial gifts or inheritance; whether the defendant owns a home that can be refinanced; whether the defendant has assets that can be sold or used as loan collateral; whether the defendant prioritized the payment of child support over the payment of nonessential, luxury or otherwise extravagant items; and whether the defendant has taken reasonable precautions to guard against financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one’s parental responsibility to one’s child.  The existence of unexplored possibilities for generating income for payment of the court-ordered support suggests that a defendant has not raised a true impossibility defense but merely an assertion of inability to pay.  A defendant’s failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects “an insufficient concern for paying the debt that he owes to society,” it also reflects an insufficient concern for the child.  In those instances, the defendant may not invoke the shield of the impossibility defense.

To recap, it is now the law in Michigan that a non-custodial parent who is literally a day late and a dollar short on his child support can be charged with a felony and imprisoned for up to four years.  There is essentially no legal way in which he can avoid prison except the defense of impossibility.  The defense of impossibility itself is virtually impossible to successfully assert.  Indeed, is a situation in which it could be successfully asserted even imaginable?

Let’s say a father is literally penniless and living on the street.  He has no money, no assets, no job, nothing.  Let’s say he is then hit by a car and rendered quadriplegic.  Would that qualify?  The answer could easily be ‘no.’  In the first place, he can receive disability income and in addition he can be put on the sidewalk with a bowl to beg.  That is, after all a source of income.  In the event public begging is illegal in his community, he can still go to the library, and use one of the public computers to solicit funds for his children.  Did he try that?  If not, he has not explored “every possible avenue in order to pay his child support.”

And of course, as usual, having a family court assign to a father the scarlet letters NCP, non-custodial parent, means that he enters a world in which normal, intelligent decision-making is no longer acceptable to the judges that examine his every thought and deed.  So, let’s suppose that, at a time when he had some money to invest, he took the advice of a broker and bought stock in, say, Lucent Technology.  The stock tanked and he lost all or most of his investment.  That may have happened 15 years previously, but, according to the Michigan Supreme Court, it now forever stands as his “failure to guard against financial misfortune” that prevents any future defense to the felony of being unable to pay his support.

The same would hold true for his decision to abandon a hated job in favor of continuing his education in a less lucrative field.  In fact, the failure to make every single decision in his adult life on the basis of enhancing his financial status will forever hold the barred door ajar.  Essentially any way a judge can, at any time, second guess a decision made by the non-custodial dad will be a one-way ticket to prison.

Of course it’s all done for the kids, right?  Of course not.  That’s because fathers behind bars don’t earn the money to support their kids.  Their time in the slammer is time during which their employment skills are eroding, and their debt is increasing.  Then there’s the small problem of lugging around a felony conviction once he gets out.  How many employers simply close the door in the face of a person with a felony on his/her record?

Then there’s another problem.  Many divorced fathers remarry; many of the women they remarry have kids; many of those kids depend on their new dad to support them.  So when Dad can’t do that, they suffer.  When the state  puts Dad behind bars because he can’t pay to support the kids by his previous marriage, how does that help his step-kids?  To assert the defense, he needs to sell all his assets.  How does that help his step-children?

As usual, Michigan child support law focuses only on the children he fathered, and not on his step-children.  It’s all for the children, except when it’s not.

So the good news is that, in Michigan, there’s a defense to the felony of failure to pay child support.  The bad news is that next to no one can use it.

So it goes in the twilit world of custody and child support laws.

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