Child support flaws target of Michigan high court inquiry

Karen Bouffard/ Detroit News Lansing Bureau

Lansing— When Selesa Likine couldn't pay her child support, even after it was slashed to $25 a month, she was thrown in jail.

The Troy mother of three had lost her job and her ability to make a dent in the tens of thousands of dollars she owed in back child support.

Likine's case, and two others, were argued Thursday before the Michigan Supreme Court, where discussions centered on how "ability to pay" factors into the guilt or innocence of parents charged with felony nonpayment.

Lawyers for the defendants argued the parents were unfairly convicted because they couldn't pay support and were prohibited by law from proving that in court. But Michigan Solicitor General John Bursch said a ruling for the defendants "could put at risk $9 billion in back child support."

Likine, 44, suffers from schizoaffective disorder and major depressive disorder, and lost her job after a lengthy hospitalization. A lower court ruled Likine could not introduce any evidence about her income or her ability to pay, including her mental illness. The Court of Appeals agreed.

A 2004 court ruling determined an inability to pay is not a defense to the crime of felony nonsupport.

Chief Justice Robert Young Jr. repeatedly questioned Bursch and defense attorneys on what the standard should be for determining a defendant's ability to pay.

"It's very easy to say 'inability' is the same thing as 'impossibility' to pay," Young said.

Attorney David Moran with the University of Michigan Innocence Clinic argued the trial court violated Likine's constitutional rights by not allowing testimony on why she couldn't pay child support.

"I believe in the wisdom of Michigan juries" to decide whether parents had a legitimate reason not to pay, he said.

Justice Stephen Markman said parents have a responsibility to plan for economic difficulties such as job loss.

"That's why you save for a rainy day," Markman said.

Bursch argued the defendants in each case did not meet the very high standard required to prove it was impossible for them to pay. "You have to be in a coma or kidnapped by Afghani terrorists," Bursch said. "(Defendants) have an extremely high burden of proof."