February 17, 2014 by Robert Franklin, Esq.
Lots of Minnesotans are up in arms about this decision by the state Supreme Court.They shouldn’t be.I can personally promise each and every one of them that the state legislature will fix the law so fast if you blink, you’ll miss it.
It seems one Thomas Nelson was ordered to pay child support for his kids, but didn’t do so.He ended up owing over $83,000 to his ex for his offspring who are now adults.He was arrested, tried and convicted under Minnesota criminal statute section 609.375, 1, 2a(1) which makes it a criminal offense to fail to provide “care and support” for one’s children when ordered to do so.
Of course Nelson had been ordered to support his children and he hadn’t done so.No one disputed either of those things.What then, was the problem he complained about on appeal?
Nelson pointed out that the statute required the prosecution to prove both that he hadn’t “supported” and that he hadn’t “cared for” his children.Under Minnesota law, “support” refers strictly to payments of money, while “care” refers to “those nonmonetary legal obligations that require watchful oversight, attentive assistance or supervision.”
So the state proved only half of its case against Nelson.It proved he hadn’t paid, but it failed to prove he hadn’t provided those other “nonmonetary legal obligations.”Moreover, the statute as written is fatally ambiguous, i.e. subject to more than one reasonable interpretation, so legally, a defendant may not be convicted under it. Therefore, Nelson is off the hook.
Needless to say, the howls of outrage were heard to the heavens and beyond.But my guess is that the state legislature will amend the wording of the act faster than it’s ever done anything before.The very last thing Minnesota wants is for a bunch of fathers to come trouping into court saying the prosecution can’t prove they didn’t care for their kids, and avoiding felony conviction and prison in the process.Face it, this opinion by the Supreme Court won’t last long.
And of course, criminal punishment isn’t the only way a non-custodial parent can be punished for failure to pay.Family courts have plenty of power to imprison them and punish them in other ways.The civil court had already done so in Nelson’s case, but he still refused to pay.Most non-custodial parents aren’t quite that dogged in their resistance.
One interesting question does arise, however.If a non-custodial parent has an order to pay child support, does that mean that he/she has been “ordered to provide” both support and care?I would say that, under the Supreme Court’s reasoning, it does not.Therefore, no non-custodial parent with an existing support order that doesn’t include an order to provide both support and care should be subject to criminal prosecution under section 609.375.
So one thing the legislature will be doing is changing the existing language so it can prosecute parents just for failure to support a child.
Interesting too is the fact that a custodial parent could conceivably subject a non-custodial parent to criminal prosecution simply by refusing visitation.After all, how can the non-custodial parent provide “care” as it’s defined by the law, if he/she never sees the child?
But that too will soon be a tempest in a teapot.Far too much money is riding on the state’s collecting funds from non-custodial fathers to be held up by something as arcane as a ruling by the state’s highest court.The federal government pays out huge sums of money to states every year for those collections; every state government knows it and every state government depends on those funds.
That’s perhaps the chief reason why, as the federal Office of Child Support Enforcement has admitted, state courts often set support levels higher than non-custodial parents can reasonably be expected to pay.As far as the states are concerned, the more cash they rake in from fathers, the more they get from Washington, so the higher the orders are set, the better.
So those who foresee the end of time and the human race because of the ruling in State vs. Nelson, can relax.Soon now, very soon, it’ll be back to business as usual with state courts incarcerating fathers for failure to pay sums they often should never have been ordered to pay in the first place.
What could possibly be wrong with that?
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