A recent decision handed down by the Michigan Supreme Court allows parents with delinquent child support payments to potentially avoid a felony charge by arguing that it is impossible for them to meet their obligations. The court upheld a lower court's 2004 decision that it does not matter whether a non-custodial parent can afford to pay child support, but ruled that parents could argue that it is "impossible" for them to pay after examining several cases from the 1800s.
While the ruling gives parents accused of failing to pay child support an opportunity to avoid criminal charges, the three dissenting justices have accused the four-justice majority of establishing a "nearly-impossible-to-satisfy defense." According to the decision, parents hoping to qualify for the defense must prove that they have absolutely no means of payment, including assets that could be sold for money. The dissenting justices say that Michigan is now the only state in the U.S. that does not allow parents to simply claim they cannot afford to pay, a claim that he majority disputed.
One dissenting justice also contends that the majority failed to acknowledge that periods in which parents cannot afford to make scheduled payments are common, and this "does not automatically render them uncaring, deadbeat parents." She argued that financial destitution should not transform into a criminal defense, and state and federal laws should protect poor and wealthy citizens equally.
The ruling was based on three separate Michigan cases in which parents claimed they could not pay child support. In one case, a woman accused of failing to make three years' worth of child support payments was prohibited from submitting evidence that she had been employed since 2005, was living on meager Social Security payments, and that a judge based her child support order on income she never made.
Source: mlive.com, "Michigan Supreme Court gives child support 'deadbeats' a defense, but sets bar high," David Eggert, Aug. 1, 2012