Background
Children have the inherent and statutory right to support from their parents (MCL 722.3). Most people care for their children and make whatever sacrifices are necessary to provide for them. They truly want the best for their kids and take such necessary steps. We see this in the many cases that never go to court, even where legal actions are started. Even those parents who fall short in being able to support their children often still make efforts to do at least something to help financially. However, the unfortunate reality is that some parents move on with their lives and neglect their familial obligations. There are many reasons for this—far too many to list here. Some examples that have come up include: starting a new family; simple apathy coupled with a desire to live their best lives; and a great deal of spite for the other parent. Whatever the reason, they do not meet this basic, universal right.
The Title IV-D partner that tries to work with parents to pay their support orders statewide is the friend of the court (FOC). While the FOC’s civil remedies are ordinarily sufficient to protect the rights of children, there are times where that is not successful. When this happens, a non-paying parent may have committed a criminal act and the prosecutor may investigate to determine whether a felony non-support (FNS) prosecution can achieve justice for the child(ren) and payee parent or guardian.
An FNS prosecution is never undertaken lightly. Prosecuting attorneys are not looking for excuses to bring these charges. During this process, there are investigations, contacts with the other parent, and determinations of appropriateness. The goal is to pursue the rights of children and fight for them, not to punish a person who has fallen behind on support with criminal charges.
In my experience, it is also important to consider that named victims have among the least faith in the justice system of any who come to court. That is because they have already been through the court process. Commonly, they have spent years showing up for hearings, doing what they need to do both as a parent and party to a legal case, and seeing little to no efforts or response from the other person. In addition to protecting a child’s right to support, an FNS case may demonstrate that people often do care and that faith in the courts is not always misplaced.
One of the most critical aspects of an FNS case is recognizing the harm to the child(ren) involved. This may seem straightforward enough because they do not have support from both parents. However, the real-world consequences are much more detrimental. Often, the payee parent must pick up a second job to maintain the family’s basic needs. This means even less time at home and consequently, less time to be present as a parent figure. The situation is more significant when the payer parent does not exercise any parenting time, meaning babysitters or other family members serve as the caregivers.
This can cause the child(ren) to question why the parents are not around. This negative feeling can be compounded when they are old enough to see their friends do not share that situation. The lack of support can also mean missed opportunities. The payee parent may struggle to afford a child’s extracurricular activities, provide tutors, or other supports for the child if the payee cannot meet basic expenses. The child(ren) see their friends having birthday parties or getting to have experiences never available to them. All of these have the potential for psychological impacts that extend far beyond the surface-level view of child support.
The Basics
An FNS case carries much more weight than FOC enforcement. Unlike civil contempt, the maximum term of incarceration for a violation of MCL 750.165 is four years in the Michigan Department of Corrections (MDOC). That maximum sentence may be higher if the person has a prior record that includes crimes that would constitute felonies pursuant to habitual offender law. On top of that, those convicted of this offense are subject to potential terms of probation, which can include provisions designed to achieve rehabilitation. A person can decide not to act as a parent, but our laws do not simply allow them to abandon their parental responsibilities and leave their children to suffer the consequences.
Named Victim
The term “named victims” is not an official legal definition; it does not exist in statute. Rather, I utilize this term throughout this article to refer to the payee who is owed support. Child support is for the actual support of a child; the right to support is that of the child, not the other parent. The entire structure of support calculation pursuant to the Michigan Child Support Formula is based on that need. For instance, if a party has other minor children not in common with the other parent, a multiplier is applied to their income to reduce the total used to calculate child support. The idea is that providing for a child will always require some measure of income, which needs to be considered. Thus, it has seemed odd to only refer to the payee as the sole victim in the case, as it excludes the child(ren) who truly suffer the consequences.
Case Initiation
So how does an FNS case begin? These types of proceedings have a few origins. Some of the most common are case referrals and victim contacts. Each individual county prosecutor sets their own criteria for the types of nonpayment constitute a prosecutorial offence. For the Michigan Attorney General (AG) to prosecute a case, for example, the case must meet a threshold of $5,000 in arrears or arrears in excess of 24 months current support (whichever is greater)
and have paid less than 51 percent of the support due in the last six months. The AG may not prosecute a case if the payer does not have the ability to pay and must provide any information of the payer’s ability to pay to the FOC so that it might take civil action before the AG takes criminal action. Although the AG must consult with the FOC to determine whether or not to prosecute, the consultation is limited to fact-finding, with the final determination to prosecute being solely the AG’s. The State Court Administrative Office’s (SCAO) criminal nonsupport memorandum highlights the importance of the separation of powers, making clear that FOC officers are not to subjectively determine whether the facts in the case justify filing criminal charges. Rather, it is the role of the prosecuting agency to evaluate the facts and make such a determination.
A named victim may also request an investigation be initiated directly. The AG’s office has an online portal to submit such requests. Local prosecuting attorneys may also have such procedures. Typically, a named victim’s request is processed in a similar manner as a referral with an investigation occurring to aid in the determination as to whether an FNS case is appropriate. This would include a questionnaire providing background information, including details relevant to the payer’s ability to pay child support.
Bond
Unlike most other criminal offenses, a “Failure to Pay Child Support” charge has its own bond provisions, which are contained within MCL 750.165. Generally, unless a defendant deposits a cash bond of either $500.00 or 25 percent of the outstanding support arrearage (whichever is greater) the defendant is to remain in custody until arraignment. A court also has the discretion to set the cash bond at a higher amount, but not more than 100 percent of the outstanding arrearage. A tribunal must address bond at both the arraignment and the preliminary examination; however, unless good cause is shown on the record, the set bond must continue to follow the previously mentioned structure. Commonly, courts will also address bond at the probable cause conference if the matter is raised.
This bond provision is extremely effective in securing funds from individuals who have thus far proved adept at hiding assets, particularly those who work for cash or the so-called “sovereign citizens.” Sovereign citizens seem to regularly furnish bond to get themselves out of jail. Given the good cause exception, a court can properly find there exist special circumstances that warrant a departure from this requirement. In my experience, if there are clear facts that warrant a different bond, the AG will stipulate to a reduction.
If a defendant is convicted or pleads guilty, the bond money may be released to the local FOC for application to the civil case. This is often done prior to sentencing, as the parties will stipulate to such a release if a plea is being tendered. This is not typically an insignificant amount of money. While at the Oakland County Prosecutor’s Office, I looked at 17 cases where bond was posted (these were not the only actions where this occurred). In those alone, over $91,000 was posted. This is not money demanded of a court while the defendant remained in jail for the pendency of the criminal proceedings; this was posted for release. Bond may be one of the only large amounts of money applied to a support obligation, as some defendants either attempt to abscond or do not make genuine attempts to pay support while on probation.
Delayed Sentence
A common tool in an FNS case is a delayed sentence. This has the potential for the most optimal outcome for all parties involved. It has the potential to result in most or all a support arrearage being paid, finally meeting the child(ren)’s inherent and statutory rights. The outcome benefits the child(ren) and the parents as individuals and as a family unit.
The payer obtains more than a charge reduction. Successful completion means that the payer will be caught up on support and well positioned to avoid future issues. The daunting balance that can appear insurmountable or not worth the attempt no longer exists—no more show-causes, bench warrants, or other enforcement action if the payer stays current with the support order. Furthermore, the parents themselves can end up working better without the friction of whether or not both are financially supporting their child(ren).
A good example would be a case I had some time back. During the defendant’s allocution, he expressed how the case had been the best thing to happen to him, in terms of improving the situation with his child’s mother. He talked about how well he and his child’s mother were working together, now that he was involved as a parent, and she did not feel she had the entire financial obligation of providing for their child. He described how they were meeting on days when he did not have court set parenting time, and overall painted a picture of a much better situation. Certainly, this is not a universal experience, but it is worth remembering that cases involving support are at the intersection of two of the most important parts of a person’s life: family and finances. When a payee is not receiving support, and particularly when the other parent is not involved as a parent at all, this can create major problems and resentment.
A delayed sentence has a straightforward structure. In essence, a defendant payer pleads guilty as charged, but the sentencing is delayed for a period of time. At the end of the delay, if the defendant has complied with all requirements, the prosecution moves to amend the general information to include a new, reduced charge. Upon the defendant’s tendering of a guilty plea to this new count, the original felony charge(s) would be dismissed. Typically, a delayed sentence would not be more than a year.
The passage of one year does not automatically divest a trial court of jurisdiction to sentence a defendant. After the one-year statutory period elapses, a judge could decide not to further delay a sentencing for the purpose of allowing a defendant an opportunity to demonstrate worthiness of leniency. Thus, at that point the trial court must impose a sentence as provided by law. The Michigan Supreme Court has stated that the timeframe for a sentencing must still comply with the constitutional guarantees to a speedy trial. In determining whether or not that right had been violated, the Court articulated a four-part balancing test involving the consideration of “…(1) the length of delay, (2) the reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. By framing this as the right of a defendant to be sentenced within a year, there is an implication that the right may be waived.
Thus, if a defendant is seeking a greater period to pay down the support obligation to avoid one or more felonies, an extension is possible. This frequently occurred in Oakland County, where we would ordinarily agree with up to a six-month extension if the defendant was seeking it. Importantly, this means neither the prosecutor nor the court may decide a greater delay of sentencing is appropriate. The defendant must be the one to make the request, and such a course of action must not violate the four-factor test described above.
The trial court has proper jurisdiction to sentence a defendant at any point during the delayed sentence period. Unlike probation, a person who is on delayed sentence status is not entitled to a hearing before the delay in sentencing is terminated. This means defendants who think they bought themselves a year or more without having a deal with the courts and fail to make any effort can face an accelerated sentencing.
A delayed sentence functions similarly to a period of probation; however, the two are distinct. The Michigan Court of Appeals (COA) has been explicit that deferring a sentencing pursuant to MCL 771.1 is not the equivalent to placing a defendant on probation. The COA has stated that a defendant on delayed sentence status has not been sentenced within the meaning of the applicable statute. Structurally, a delayed sentence means that no sentence has been rendered, despite the fact that the trial court may impose conditions on the defendant. Imposing terms that are reasonably well designed to assist in a determination that leniency is appropriate under the statute and is not tantamount to placing the defendant on probation.
In practice, the typical plea agreement would require a payer defendant to stay current on the support obligation and to pay a minimum amount towards the arrearage. The current support amount is whatever is ordered by the family court, and thus might change during the delayed sentence. If the entirety of a support obligation is paid down to zero, the felony charge of “Child Support – Failing to Pay” would be reduced to a misdemeanor charge of “Disorderly Person.”
There are also other variations, such as a partial pay-down of the obligation (typically at least half of the outstanding support balance), which might be agreed to result in the high court misdemeanor charge of “Attempt Child Support – Failing to Pay.” The maximum sentence under this statute is two years in the MDOC, and the court retains the ability to order a term of probation. This would allow a defendant to continue to pay support and demonstrate a good faith effort to the judge while remaining under the court’s jurisdiction.
How to Avoid a Felony Non-Support Prosecution
How can people behind on support avoid a potential FNS case? The answer is going to depend on the person. It is important to recognize that some people have no intention of ever paying their child support. It is not a matter of making poor choices in priorities or neglecting their obligations; there can be an element of spite. In over five and a half years of being involved in the IV-D program, I saw this time and time again. One of the most blatant examples was a man who (via text message) stated he would never pay child support and claimed he would never sit in jail. This is important to bear in mind as you can only help those who want the aid. You can provide all the resources and assistance possible, but in the end, that alone will not get justice in every case. For those who want to address their support obligations, there are ways you can help beyond recommending they make a good faith effort to pay support.
Offering resources is a valuable course of action that can facilitate efforts to get back on track. Job placement services can assist people in finding and maintaining employment. This obviously not only benefits their child(ren) when support is paid, but also gives the payer an opportunity to hold down steady work and earn regular income. Such services are useful to those genuinely struggling to hold down work due to a prior criminal record. Another item is motion material. Both FOCs and SCAO have a variety of straightforward forms and documents. If a person claims that the support figure is too high, guiding the person to these can be a great service. This also somewhat weeds out people seeking a support modification as unfortunately there are quite a large number of parties who claim they have an income issue as a smokescreen for noncompliance, but do not want anyone actually looking at their income information.
Similar to motion material, county legal aid clinics (where available) can be very helpful for people seeking legal advice. If they have transportation and a light or non-existent work schedule, that is even more reason to attend. If you have a payer looking for work, but who has an older criminal record affecting their options, you may want to advise the payer about expungement resources. With Michigan’s recent statutory changes, some offenses will be automatically removed from the public record if certain criteria exist.
Another issue is the waiver of qualifying state-owed arrears. In my experience, this is most applicable to older support obligations. If there is money the state does not want and the individual qualifies for a waiver, then making the payer aware of this option is helpful as many do not even know they can submit such a request. Importantly, make sure to follow your county policy regarding arrearage waivers if an FNS case is active. There may be notice requirements, such as to the prosecuting agency so they are aware of the application and can properly handle the criminal case.
Finally, always update Michigan Child Support Enforcement System (MiCSES). Some people miss review notices or other important paperwork because they never bother to update their information despite how many times the importance of that process is made clear throughout the course of the case. If you have such a payer on the phone, that is a great opportunity to make sure everything is correct. It helps if you explain the reason for the update, as some people are naturally suspicious of providing that type of information, particularly if they have had previous bad experiences or arrests.
The Harassment of Named Victims
It is critical for IV-D team members to be aware of ongoing FNS cases, which we hope the updated MiCSES screens will facilitate. When a defendant is arrested on an FNS case, it is (unfortunately and unsurprisingly) common for attempts to be made to manipulate the payee of child support. This can be directly by the payer defendant or through family or friends.
Sadly, I saw this quite a few times while prosecuting FNS cases. In one instance, a mother very much wanted to have the father be active in their child’s life. After the father’s arrest, both he and his family began calling her and saying he wanted to step up and finally be in their child’s life. Just one catch: he was not allowed to exercise parenting time while he had an outstanding support balance. So, if she would not mind simply waiving all that back support, he would absolutely begin to show up and take an interest in their child.
This clearly is not how the law works, and once the mother knew that, she decided that she would wait to see if he followed through before considering whether or not to waive the back support. When this did not work, the defendant later demanded an in-person preliminary examination during a spike in pandemic numbers, seemingly to try to have the case dismissed if people did not appear in the courtroom.
If you are on the enforcement side and suddenly hear that a payee wants to waive some or all arrearages, it is very important to check if there is an active FNS case. Just a few follow-up questions can help determine if this is a voluntary act by a payee, something the payee absolutely has the right to do, or whether this is the result of harassment or manipulation. It is terrible when a parent has been doing all the parent can to care for a child alone, just to have support permanently waived due to coercion or trickery. That is not to say you should try to convince/force a parent to maintain all arrears; that decision is within the parent’s discretion. However, both making sure the decision is voluntary and providing notice of the basic aspects (such as the permanent nature of the waiver) may help to the parent protect the parent’s and child(ren)’s rights.
There are actions that can be taken to stop harassment. An assistant prosecuting attorney or assistant attorney general can request a no-contact order in the criminal case. This order can be absolute, preventing further communications of any kind. Such a broad restriction is particularly appropriate in situations with a history of domestic violence or other serious issues. However, where the named victim wants to attempt to co-parent and there are not problems that could arise from limited communication, a carve-out can be made.
For instance, there could be a provision such as “except regarding custody and parenting time in the manner specifically permitted by the Family Division of the X Circuit Court.” This could allow a party to make a request of the family division judge to allow specified communication as deemed appropriate, which could be in the form of an app or other means reasonably designed to limit improper communications or allow oversight. Such language could be implemented when the named victim makes that request of the PA or AG. Again, such an exception would be very case specific, as the goal would be the protection of the named victim and the prevention of improper communication on the part of the defendant.
Final Thoughts
The felony non-support process is a tool for justice. For children who have gone without, it serves as a powerful method of protecting their rights to support from both parents. Children are never an obligation or an inconvenience to be avoided; they are people with inherent and statutory rights. How they are treated shapes their lives and self-perception. The hope is always that parents will step up for their children, but when that does not happen, an FNS case may be the only realistic option for a just outcome. The state of Michigan and the hardworking members of the IV-D program will always fight for children and families.
