Felony Nonsupport Charges in Michigan
If you face felony nonsupport charges, you will quickly discover that the court assumes you have willfully neglected your child. In most cases, this assumption could not be further from the truth.
Is there a defense to felony child support charges in Michigan?
The Michigan Supreme Court has upheld the “impossibility” defense to felony nonsupport charges. In Michigan, it is a felony to fail to pay child support in the amount or the time ordered. Statutorily there is no defense to this crime. The problem is that many well-intentioned parents, who are doing their best, 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 an example of governmental prosecution out of control.
Although the prosecutors and the attorney general in the State of Michigan have taken a position 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. The Michigan Supreme Court ruled, “We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport.”
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. While many courts are reluctant to grant motions to dismiss these charges, a credible, experienced, and aggressive defense lawyer is the best hope of getting these charges thrown out of court.
The defense attorney must convince the judge or a jury that a defendant 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 their own. Defendants who hope to use the defense of impossibility in a felony nonsupport case must prove they made all reasonable efforts and used 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.
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 their 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 the court-ordered support payment suggests that a defendant has not raised an actual 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 to felony nonsupport charges, a defendant must present convincing and credible evidence from which the judge or jury 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, 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 them to comply with the family court order for every violation within the relevant charging period.
Bond or Bail in Felony Nonsupport Cases
The law dictates that a defendant may be released on bond if they can pay a bond of 25% of the total arrearage. For most defendants charged with these offenses, a 25% bond amounts to a denial of bond because the sum of money required is just too much to attain. A little-known provision in the law gives the defense attorney the ability to argue for a significantly lower bond if they can show “good cause.” In practicality, this is not a high burden, and it is generally in everyone’s best interest if the defendant is out on bond and can stay employed. Do not be sold out by a lawyer unwilling to fight for every possible advantage for their client. The lawyer should fight to get their client out of jail and on bond.
Michigan Felony Nonsupport Defense Attorney
If there is no legal defense to a felony nonsupport case, there are many ways for a good defense lawyer to mitigate the damages. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has negotiated outright dismissals of these cases. In other cases, the team has convinced the prosecution to reduce the felony charge to a misdemeanor. Additionally, the defense lawyer also has to convince the sentencing judge not to create conditions of probation and repayment to be so tricky that the defendant is set up for failure. At LEWIS & DICKSTEIN, P.L.L.C., we prioritize protecting our clients and preventing a court from ordering a sentence that is too difficult for a defendant to handle.
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. We will take the time to talk with you, answer your questions, and find a way to help you.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.