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.
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.
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.