NEW DEFENSE IN FELONY NON SUPPORT CASES IN MICHIGAN.
In People v Likine the Michigan Supreme Court , decided 07/31/12,created a defense in criminal child support cases that I predict will find its way into Family Law Child Support Cases.
Presented here by Flint child support attorney Terry Bankert 810-235-1970 , www.attorneybankert.com
Selesa Linkine had been convicted in Oakland County of failing to pay child support. The Michigan Supreme Court overturned her conviction and granted her a new trial. She will be allowed to present evidence of mental illness and several other problems that made child support payments an impossibility. This evidence was not allowed by the Oakland County Court.
This case breaks new ground in criminal cases now allowing poor parents to present an “ impossibility defense” when accused of criminal failure to pay child support.
The Law in Michigan was to view these cases by a strict liability standard even if the parent was impoverished. Often Judges would point to the classified section of a newspaper and say jobs are available and the parent is managing to feed themselves and they should have to help feed their children.
What does a parent now charged with criminal non support have to prove to effectively use this impossibility defense?
1.A good faith effort to seek employment.
2.Proof the parent could not pay child support through no fault of their own.
3.Proof that all avenues to pay child support have been exhausted.
a.job search
b.sale of assets.
c.refinancing of a home.
d.or other lawful attempts to get cash.
The Court stated “ Defendants must not only establish that they cannot pay but that theirs are among the exceptional cases in which is was not reasonably possible to obtain resources to pay.”The court continued “ A defendant’s failure to undertake those efforts reflects an insufficient concern for paying the debt one owes to one’s children which arise from one’s responsibility as a parent.
Justice Mary Beth Kelly was not pleased with this standard. She argues that the new standard favors prosecutors as “ nearly insurmountable barriers for poor people who are simply unable to pay child support.” She pointed out that Michigan still has stricter rules than 49 States.
Kelly continued.” I believe that the majority’s impossibility-to-pay defense will prove grossly unjust in its application and that it is fundamentally unconstitutional.”.
The Court in its majority opinion stated.”Clearly, the record of the defendant’s conduct and responses in the family court proceedings is relevant to determining the possibility of
compliance with the support order and is relevant to evaluating the defendant’s good-faith efforts. Consequently, and in addition to any other relevant evidence, both the defense and the prosecution may rely on the evidentiary record from the family court proceedings. For example, evidence that the defendant was not truthful in the family court proceeding or that the defendant hid assets, failed to provide accurate documentation of the resources and assets at his or her disposal, was voluntarily unemployed or underemployed, failed to exhaust all reasonable and lawful means of generating the income necessary to satisfy the support obligation, or failed to seek timelymodification of the family court order when it became evident that it could not be performed may, singly or in combination, defeat any claim that it was impossible for the defendant to comply with the court order. “
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In People v Likine the Michigan Supreme Court , decided 07/31/12,created a defense in criminal child support cases that I predict will find its way into Family Law Child Support Cases.
Presented here by Flint child support attorney Terry Bankert 810-235-1970 , www.attorneybankert.com
Selesa Linkine had been convicted in Oakland County of failing to pay child support. The Michigan Supreme Court overturned her conviction and granted her a new trial. She will be allowed to present evidence of mental illness and several other problems that made child support payments an impossibility. This evidence was not allowed by the Oakland County Court.
This case breaks new ground in criminal cases now allowing poor parents to present an “ impossibility defense” when accused of criminal failure to pay child support.
The Law in Michigan was to view these cases by a strict liability standard even if the parent was impoverished. Often Judges would point to the classified section of a newspaper and say jobs are available and the parent is managing to feed themselves and they should have to help feed their children.
What does a parent now charged with criminal non support have to prove to effectively use this impossibility defense?
1.A good faith effort to seek employment.
2.Proof the parent could not pay child support through no fault of their own.
3.Proof that all avenues to pay child support have been exhausted.
a.job search
b.sale of assets.
c.refinancing of a home.
d.or other lawful attempts to get cash.
The Court stated “ Defendants must not only establish that they cannot pay but that theirs are among the exceptional cases in which is was not reasonably possible to obtain resources to pay.”The court continued “ A defendant’s failure to undertake those efforts reflects an insufficient concern for paying the debt one owes to one’s children which arise from one’s responsibility as a parent.
Justice Mary Beth Kelly was not pleased with this standard. She argues that the new standard favors prosecutors as “ nearly insurmountable barriers for poor people who are simply unable to pay child support.” She pointed out that Michigan still has stricter rules than 49 States.
Kelly continued.” I believe that the majority’s impossibility-to-pay defense will prove grossly unjust in its application and that it is fundamentally unconstitutional.”.
The Court in its majority opinion stated.”Clearly, the record of the defendant’s conduct and responses in the family court proceedings is relevant to determining the possibility of
compliance with the support order and is relevant to evaluating the defendant’s good-faith efforts. Consequently, and in addition to any other relevant evidence, both the defense and the prosecution may rely on the evidentiary record from the family court proceedings. For example, evidence that the defendant was not truthful in the family court proceeding or that the defendant hid assets, failed to provide accurate documentation of the resources and assets at his or her disposal, was voluntarily unemployed or underemployed, failed to exhaust all reasonable and lawful means of generating the income necessary to satisfy the support obligation, or failed to seek timelymodification of the family court order when it became evident that it could not be performed may, singly or in combination, defeat any claim that it was impossible for the defendant to comply with the court order. “
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