Last week, the Michigan Supreme Court granted leave on three cases challenging the constitutionality of the Felony Non-support Act; the statute criminalizing the failure to pay timely child support to the custodial parent.

A decision from the Supreme Court is expected sometime in 2011.

One of the defenses expected to be raised in the cases is whether a child support payor charged with this felony can raise the issue of his or her “inability to pay” in the criminal court. Of course that defense is often raised in family court.

Once you’ve been charged with felony child support, however, the “inability to pay” defense is unavailable pursuant to a long-line of Michigan Court of Appeals decisions. In granting leave for further appeal, the High Court expressly directed all litigants to address the constitutionality of precluding an “inability to pay” defense.

Generally, if you are having difficulty keeping your child support obligation current, you should immediately seek relief in the family court before you build an arrearage. An arrearage, if significant, can lead to a felony charge. Technically, a day late and a dollar short is all that is required by the prosecutor to charge a case.

If you’ve already been charged, then you can still attempt to seek relief from the family court in the form of a reduced ongoing monthly obligation and, with the payee-parent’s consent, a waiver of interest and service fees. There must be some basis for modification other than you simply ignoring your obligation.

Another approach is to seek cooperation with the ex-spouse in order to take all factors into account. For example, if the ex-spouse agrees, credits can be issued for direct, but unrecorded, payments, and for less formal modes of payments.

Once a criminal case is charged, however, such family court adjustments are too late. The felony child support statute requires the trial court to post bond in the amount of 25% of the arrearage. District and Circuit judges, however, routinely reduce this amount for good cause shown.

Often, the child support payor will attempt to assert a change of circumstances, or an error by the Friend of the Court in the calculation of his or her support obligation. These assertions, however, do not qualify as valid defenses to the criminal charge. They must be taken care of in the family court first. If the family court endorses a credit, only then can it factor into the criminal defense.

Once the Michigan Supreme Court decides the series of felony child support cases it has selected for review, we will have a better understanding of how to approach the problem of child support arrears.