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Do I Have To Pay Child Support While I Am Incarcerated In Michigan?

 

The obligation to pay child support does not automatically stop just because the payer is incarcerated.  There are horror stories of inmates who have served 10 years in prison and paid their debt to society only to be released and discover that they have $30,000.00 in child support arrearage that accumulated during that time.  The inmate, at best, probably had a menial job in prison that paid only a few cents per hour and almost all of that was used for basic personal needs or was seized by the government to pay fines, costs and restitution.  Already shackled with the stigma of a felony conviction, the now-released inmate will struggle to find a well-paying job that can even make a dent into that staggering bill.  How can an incarcerated parent avoid this situation?

A parent who is obligated to pay child support under an existing court order and is incarcerated should take AT LEAST ONE OF THE FOLLOWING ACTIONS:

 

  • FILE A MOTION TO MODIFY CHILD SUPPORT
      • (1) A prisoner may file a motion to be heard either before the Friend of the Court referee or the circuit court judge in the county where the child support order originated asking for a modification based on a change of circumstances (e.g. incarceration). It is important to file this motion as soon as possible.  The court may only retroactively modify support back to the date that the motion was originally filed, NOT when your incarceration started.
      • (2) A prisoner should also file FOC 111 (Prisoner Affidavit and Order for Suspension of Fees/Costs) to request a waiver of any filing fees or court costs associated with the request on the basis of the prisoner’s indigency.
      • (3) The prisoner must ensure that the party entitled to receive support is served with notice of the motion or else it will not be heard. The payee has a right to appear in court and either agree with the prisoner’s request to modify child support or object to it.
      • (4) The prisoner should also be sure to request that he or she participates in the hearing by way of telephone or other electronic means as permitted by MCR 3.210(A)(4) and MCR 3.215(D)(3). Unless agreed to by the other party or allowed by the court, the law presumes that all parties will appear in person or else they default their appearance.
      • (5) The court will not automatically reduce or abate child support just because the prisoner is incarcerated. The prisoner has the burden of showing that he or she does not have the ability to pay while incarcerated and that there is no income from other sources that can pay the obligation.  Remember, either party can request a modification at any time as circumstances change.
  • NOTIFY FRIEND OF THE COURT OF INCARCERATION AND REQUEST A REVIEW
      • (1) The Friend of the Court in the county where the child support order originated can initiate a review if a payer’s financial condition has changed as a result of “[i]ncarceration or release from incarceration after a criminal conviction and sentencing to a term of more than 1 year.” MCL 552.517(1)(f)(v)(B).  “Within 14 days after receiving information that a recipient of support or payer is incarcerated or released from incarceration as described in this sub-subparagraph, the office shall initiate a review of the order.”  Id.
      • (2) If the Friend of the Court does not initiate a review on its own motion, then the prisoner may send a written request for a review of the child support order on the basis of incarceration. MCL 552.517(1)(b).  “Within 14 days after receipt of the review request, the office shall determine whether the order is due for review.”  Id.  “The office is not required to act on more than 1 request received from a party each 36 months.”  Id.
      • (3) The Friend of the Court may request further information on the prisoner’s financial situation by requiring additional information to be provided proving the change of circumstances. Failure to cooperation can result in the Friend of the Court denying the request for review.
      • (4) It may take up to 180 days for the Friend of the Court to make a determination whether or not a child support order should be modified. MCL 552.517(3).
      • (5) If the Friend of the Court determines there should be no change in the order and the prisoner objects to the determination in writing to the office within 21 days after the date of the notice denying a modification, then the Friend of the Court shall schedule a hearing before the circuit court judge. MCL 552.517(7).

The prisoner should act quickly upon discovering that he or she will be incarcerated for any appreciable amount of time.  In addition to significant child support arrearage, failure to take action can have the following consequences:

  • Garnishment: The State of Michigan can garnish wages or seize property acquired upon release to pay down the back-support.
  • Contempt of Court: The Friend of the Court can initiate proceedings to order the prisoner to show cause to the judge why he or she should not be held in contempt of court for failing to pay child support. A finding of contempt can lead to fines and possible jail time.
  • Violations of Probation or Parole: One of the conditions of probation or parole is obeying all court orders. Failure to follow through on child support obligations can lead to a violation of probation or parole that can put the offender back to jail or prison.
  • New Criminal Charges: If child support arrearage becomes serious enough, the Friend of the Court can make a referral to the Attorney General’s office to pursue felony charges for nonpayment of child support.
  • Loss Of Driver’s License: Failure to pay child support can lead to the Michigan Secretary of State suspending the payor’s operator’s license.
  • Termination of Parental Rights: An incarceration coupled with lack of support can constitute abandonment of the child which can lead to the other parent or the Michigan Department of Health and Human Services in pursuing court proceedings to terminate the prisoner’s parental rights.

It is important to act quickly before the consequences get out of control.  A family law lawyer can be an invaluable resource to help you navigate the process during this difficult time.  If you or a loved one have further questions about child support or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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