The Likine case concerned a criminal statute, MCL 750.165, that makes non-compliance with court-ordered child support a felony. The penalty for felony non-support in Michigan is incarceratation for up to four years and a fine of up to $2,000. If someone is arrested for non-support, he or she remains behind bars until trial unless he or she posts a cash bond of $500.00 or 25% of the arrearage, whichever is larger. That could mean being in jail until trial—and all that time, the arrearage continues to grow. It’s difficult to understand how what is essentially “debtor’s prison” works for children who need support.

In July 2012, the Michigan Supreme Court decided People v Likine and ruled that impossibility of payment of child support is a defense to a charge of felony non-support. It’s important to note thatto pay child support is not a defense to a felony charge. The question then is: What is the difference between “inability to pay” and “impossibility?”

People v Likine was actually three consolidated cases. In Likine, the father had custody and the mother had a child support obligation. She also had a “history of fairly serious mental health conditions including a diagnosis of depressive-type schizoaffective disorder.”

Likine did not have much of an earning capacity, evidenced by the original child support order of only $54 per month for three children. But a year later, the court increased the amount to $181 per month, and Likine soon stopped paying. It was established in subsequent proceedings that Likine had moved into a $400,000 house. She stated her income on the mortgage application as $15,000 per month. As a result, the court increased her child support to $1,131 per month, imputing to her income of $5,000 per month.

Likine’s Social Security earnings statement showed no earnings at all from 1985 – 2002. During that time, Likine was on disability due to her mental illness. She received income of $631 per month in SSI benefits. The house (her boyfriend’s purchase) was foreclosed on. From time to time she was hospitalized for her mental condition. It was pretty apparent that she had lied on her mortgage application.

Likine’s ex-husband testified that, after the original divorce decree granted him custody, Likine told him that she would never pay child support because “women don’t pay child support.” Thus, Likine was convicted of felony non-support and she appealed based in part on the grounds that it was impossible for her to pay what had been ordered.

Strict Liability: Michigan’s criminal statute is one of strict liability. This means that a person's specific intent has nothing to do with guilt or innocence. If a parent is ordered to pay and doesn’t pay, he or she is guilty. Period. The only defense a person can raise under the statute is that he or she didn’t receive notice of the order, the state charged the wrong person, etc. In nearly all cases, as a result, there are no defenses. If a person doesn’t pay: “Go directly to jail. Do not pass GO. Do not collect $200.”

Likine established a new defense – impossibility. The state Supreme Court ruled that, if it is literally impossible for a parent to pay what’s owed, then the state can’t imprison him or her.

This is how the supreme court defined “impossibility.”

"Thus we hold that to establish an impossibility defense for felony non-support, a defendant must show that he or she 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 his or her own. In our view, “sufficient bona fide efforts to seek employment or borrow money in order to pay” certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165. Instead, defendants charged with felony non-support must make all reasonable efforts, and use 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. A defendant’s failure to undertake those reflects “an insufficient concern for paying the debt” one owes to one’s child, which arises from the individual’s responsibility as a parent."

The following is a “non-exhaustive list” of efforts a non-custodial parent has to make if he or she is to raise the defense of impossibility:

These should include 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 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 payment 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. A defendant’s failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects “an insufficient concern for paying the debt that he owes to society,” it also reflects an insufficient concern for the child. In those instances, the defendant may not invoke the shield of the impossibility defense.

The questions this case raises are these: How realistic is the defense of impossibility for most of the parents who are at risk for arrest for felony non-support? Can a disabled parent be made to sit on a street corner and beg for money? If he or she refuses to do so or cannot do so, can the defense of impossibility be successfully raised? Will a court decide that he or she has not explored “every possible avenue in order to pay child support?” How does a past imprudent investment decision protect a parent from a felony non-support charge? Will this decision preclude raising the impossibility defense because he or she failed “to guard against financial misfortune?”

The more practical question is this: If the NCP is in jail, he or she cannot earn money to reduce the child support. The time in jail may result in diminishment or loss of employment skills. If the NCP doesn’t have a lawyer helping, he or she might neglect to file a motion so that child support is suspended during incarceration. How will this imprisonment affect a parent’s future employability?

You nay read the Likine decision from the Michigan Supreme Court here: Download People v Likine

The felony non-support statute is here: Download Mcl-750-165