Defense to Felony Nonsupport Charges

Defense to Felony Nonsupport Charges

The Michigan Supreme Court upholds the “impossibility” defense to felony nonsupport charges.  In Michigan, it is a felony to fail to pay child support in the amount or at the time it was ordered.  Statutorily there is no defense to this crime.  The problem is that many well-intentioned parents, who are doing the best they can, are charged with felony nonsupport by relentless, unscrupulous prosecutors who care nothing about ruining a parent’s life for the sole purpose of improving their boss’s chances of advancing in politics.  It’s governmental prosecution out-of-control.

Although the State of Michigan and it’s minions of child support felony prosecutors have argued that there is no defense possible to these charges, the Supreme Court of Michigan has stood up for the rights of well intended parents who, through no fault of their own, were unable to pay all or part of their support obligations despite their best efforts.

In People v. Likine (July 31, 2012), the Supreme Court ruled, “We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport.”  The dissent of the court argued unsuccessfully for an even more liberal standard, called “inability to pay.”  In practice, with a trained criminal defense attorney, the difference may be more form over substance.

Prior to trial in in Likine, the prosecutor argued in a motion that the defendant should be barred from arguing her inability to pay as a defense.  The trial court granted the motion and found that Failure to Pay Child Support was a strict-liability felony offense with no possible defense.  The defendant argued, unsuccessfully, that to deprive her of a defense was a deprival of her due process rights under the United States Constitution.
The Michigan Supreme Court agreed with the trial court to the extent that Felony Nonsupport is a strict liability offense; however, the court also found that the common law defense of impossibility was still viable.  MCL 750.165, Felony Nonsupport, criminalizes an omission, or a failure to act. The Court found that at common law, an established defense to a crime of omission is impossibility.

A defendant cannot be held criminally liable for failing to perform an act that was impossible for the defendant to perform. When it is genuinely impossible for a defendant to discharge a duty imposed by law, the defendant’s failure is excused.

In its ruling, the court stated, “we hold that to establish an impossibility defense for felony nonsupport, 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 nonsupport 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 efforts reflects “an insufficient concern for paying the debt” one owes to one’s child, which arises from the individual’s responsibility as a parent.”

Factors that must be considered relative to a claim of impossibility include the following:

  • 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 an 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 purchase 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 (which is not a defense).

To be entitled to a jury instruction on this affirmative defense, a defendant must present prima facie evidence from which the finder of fact could conclude that it was genuinely impossible for the defendant to pay the support.  Assuming a defendant has made this threshold showing and is entitled to an instruction, then the defendant may be exonerated if the trier of fact finds that the defendant has established by a preponderance of the evidence that it was genuinely impossible for him or her to comply with the family court order for each and every violation within the relevant charging period.

Michigan Felony Nonsupport Defense Attorney

If you or someone you love is charged with Felony Nonsupport in Southeastern Michigan and you are interested in retaining aggressive and successful defense counsel, please do not hesitate to call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and a highly experienced criminal defense lawyer will promptly contact you.