Minnesota Supreme Court Rules State must prove you failed to care for your child to Enforce Child Support . . .
Father’s conviction was overturned because his public defender attorney proved that the statute was vague. In a 4-3 split decision, the state’s high court reversed Nelson’s conviction, reasoning that “care” and “support” refer to different obligations. While it was clear Nelson failed to provide monetary “support,” he argued that prosecutors could not prove that he didn’t provide “care” for his children. The high court agreed, reasoning that the law is ambiguous.”
The catch . . .This ruling was based on the wording of the statute and not the father’s constitutional right to directly care for the child as we argue. This Minnesota Court was only asked to review the interpretation of the statute according to the definition of the words “care” and “support.” Because the justices could not agree on the definitions, the Court decided that the statute’s language was ambiguous. The statute read that a person was guilty of a felony for the “knowing failure “to provide care and support” to children or a spouse when ordered to do so under the law,.”*
Father Wins Appeal and Voids Child Support Arrears
In a 4-3 split decision, the state’s high court reversed Nelson’s conviction, reasoning that “care” and “support” refer to different obligations. While it was clear Nelson failed to provide monetary “support,” he argued that prosecutors could not prove that he didn’t provide “care” for his children.
Minnesota since changed the wording in the law so that you cannot defeat it with the same argument. The statute now reads “obligated to provide court-ordered support to a spouse or child . . .” This does not change the burden of proof on the state to prove that you have failed to support your child prior to them ordering child support. The statute and attorneys won’t tell you this of course. They will want you just to believe that child support is ordered on one of the parents period. It is very important that you challenge the award of child support and ensure that it is done under the proper standard. Because you can be convicted of a felony for not paying it, your divorce court must meet a much higher standard before ordering it. But they will only do so if you demand it and demand it properly. It is beyond me how this cannot be considered a debtor’s prison. The trial court judges cover up by calling it a duty and obligation. They have carved out this exception. However, this still doesn’t change the fact that you can call it by another name but the facts are that it is a state-created debt and if they throw you in jail for not paying it, that is a debtor’s prison.
Fathers are Being Systematically Removed from Children’s Lives by Title IV-D Scam
Routinely, fathers are being forced into working more just to meet the fines and costs the court has placed onto him after divorce or separation from the mother. This is one way the court keeps the father away from the child directly. It is a catch 22 for parents. The state has an incentive to charge parents as much as possible in a child support order so that they can receive the maximum incentive dollars from the federal Social Security Act Title IV-D money. This money offsets the state’s welfare costs, so essentially, you are being taxed extra for the state’s social programs. Theoretically anyway. The state can use the money for many things actually. We won’t get into that here since we want to stay on point.
If you wish to spend more time with your child, but you owe child support based on the full-time or even including over-time pay, and if you don’t meet the amount the judge or the Title IV-D court set for you to pay, the Attorney General’s office is going to bring an enforcement action and put you in jail. You will lose your freedom. Not that you haven’t lost it already. You certainly are not allowed to change jobs to give you more flexibility to spend more time with your child, unless the job pays you the same or more.
And don’t count on being able to go back to court and get equal time with your son or daughter. The judge you get might not see changing jobs as a material change in circumstance sufficient to modify the parenting plan.
Can I Still Challenge My Child Support Order?
If you already have a child support order or you are facing a court of law that is threatening to issue an order. As you saw in the above case, the Minnesota Supreme Court judges agreed that the burden of proof is on the state. The key issue is burden of proof. This means that the other side has the burden to prove that you failed to care for your child directly (this would be according to the constitutional standards and not your state statute). You would have to argue that the award of support itself must meet a quasi-criminal standard because of the fact that failure to comply with the order sets you up for a felony conviction. That means that the underlying order must meet a much higher standard. That means that you are going to have to understand how to make this argument. If you do it right, and push them properly, you could blow their cover on their scam. They cannot both have their felony statute and lowered standards for awarding child support. The two must match. This is true in criminal law and this is true where your right is fundamental. If you are not arguing it this way at trial though they aren’t going to hear it on appeal.
Many states are very sneaky about how they word their statutes, so the argument that worked for this dad may not work for you if you cannot find a vagueness or ambiguous argument. But even if you cannot find your statute vague, then look for a burden of proof argument. States learn to keep their unconstitutional scheme going by getting crafty with how they word their laws. This is why Fix Family Courts provides you with argument that your state cannot easily weasel out of. This father and this public defender did this in 2014! What are you and your $300 an hour attorney waiting for? Start making arguments that count or keep counting the money you have to pay the state disbursement unit in child support.
It is sad that more attorneys are not protecting parents and children from the child support Title IV D racket. This is proof that attorneys and judges continue to lie to parents in family law so that their state’s attorney general can continue to take advantage of your hard earned dollars to fund their cash-for-kids scheme with disadvantaged divorcing, unmarried, or separating, and desperate parents. The courts promote this scheme to help the AG skim off the top of your paycheck, which should be going to your child, for their greed and financial and political gain. It is disgusting and shameful that attorneys still lie to you and tell you that you should shut up and just pay or make you feel like you don’t care about the best interest of your child when you fight for equal time with your child so that you can directly care for them. We all know the state does not care about the best interest of the child, they care about the money.
These criminal statutes and these AG’s are targeting dads they have labeled “deadbeat dads” and using terrorist tactics to achieve their political gain, and make you pay. They are terrorizing fit parents who are desperate to be part of their child’s lives. They are hurting children by separating children from parents for their own personal power and ego. This is nothing less than domestic terrorism operated by our government.
You don’t have to wait until they bring criminal charges against you. Attorneys tell you to wait until appeal. This is wrong. If you wait, you will not have preserved error and will not be allowed to make the argument on appeal. What this father just proved is that if you fight you can win! If you don’t fight you will lose. If you don’t fight they will take advantage of you. This is just the first crack in their eggshell. It all falls apart when the state has to prove that you failed to care for your children before they can impose child support on you and subject you to potential felony charges for failure to comply. Being charged with a felony implicates several of your other rights, your right to vote is taken away and your right to carry a weapon is removed (2nd amendment).
Attorneys are not generally going to fight for your rights. This father was lucky in getting a public defender, a female no less, who was smart enough and who cared about the constitution enough to put rights before emotional hysteria. “As the opinion states, there was absolutely no evidence that he wasn’t caring for his children,” said Assistant State Public Defender Sharon Jacks, who argued the case on Nelson’s behalf. Her client, she added, is thrilled with the outcome,” according to the Star Tribune.
More and more attorneys are seeing the writing on the wall that this racket is ending and that they need to start protecting their client’s parental rights. However, most of them don’t really know how to do this. They can do this with our motions package that has specific guidance on how to defeat this child support scam.
Minnesota is not the only state child support law that is vague. And it is not just their criminal statutes that are vague, but the award of child support itself that is vague. Every state child support statute that we have seen violates the constitution.
If you owe thousands or tens of thousands of dollars, if you are trying to fight a child support award, if you are trying to overturn a child support award, let us help you get the same kind of success this father got, if you are willing to actually fight. We have said over and over again that if you take the correct argument to your state supreme court or to the United States Supreme Court, you can win, but you have to be willing to go all the way. If you don’t you are subject to wage garnishment, denial of passport, driver’s license suspended, denial of fishing license, and other licenses. Depending on your state law you could be subject to all kinds of punishment for nonpayment of child support even if the order is unconstitutional.
The fact that this is a state supreme court ruling, means that this father lost at the trial court level and lost at the appellate court level. So he was convicted of a crime in a criminal trial court, then he appealed this to the next level appellate court and he lost the appeal. He did not give up. He did not put his tail between his legs and run. He fought. He kept going to the next higher level of appellate review. He saved himself $83,470 in back child support.
It is incredibly important here to realize that his children are grown, they did not starve to death, they did not go without their needs being met. They are fully capable adults who clearly got everything they needed in life to meet their minimum basic needs, so their care and provisions were at least adequate. So it is a falsehood to call this man a deadbeat father. Or to say that this is about the children. If the state really cared about the children, they wouldn’t have stripped their father’s ability to continue to personally and financially care for them directly on a day to day basis on equal footing with the mother. What the children really lost, and those effects continue regardless of whether you see them, is the time and influence and association benefits from their father.
What is really going on is that the State of Minnesota lost its cut of the action. They were not allowed to skim off the top of this $83,470 dollars and they are mad about that. They lost the Title IV-D incentive money. This is akin to the mob boss of your neighborhood not getting his cut of the protection money he imposes on your business. The protection in a scheme where he creates the danger, and this makes him mad because you’ve been protected from his retaliatory violence to force you to give him his cut of what you earned. The family court is exactly the same, they create the harm, and they make you pay.
Child Support is a Mafia Style Tax
This is just a mafia style tax that these states burden parents with to punish divorce, to punish parents who don’t get married, and to steal from children. It is an awful, horrible, hateful, terroristic thing these governments do in labeling parents deadbeats. It is a means of collecting their mafia tax and that is all it is.
From now on when you see the term deadbeat you should think in terms of mafia tactics and mafia tax. Do you want to pay the mob boss or do you want to be protected from him?
What Can I File if I Am Convicted for NonPayment of Child Support?
If you do find out there is a warrant for your arrest for non-payment of child support, if you didn’t get an ability to pay hearing, you should look into filing a habeas corpus. If you prove the court violated due process then you get out and the state has to hold an ability to pay hearing. If you get this opportunity, you are also going to want to challenge any vague or overbroad definition of “ability to pay.” Judges are known for qualifying your ability to pay if you own a car, even if it is a junker, if you own a laptop, a smartphone, have any friends or relatives. A judge might ask you to get a loan from one of your relatives or friends to meet the obligation that they created.
If you do not understand what some of these are and how they are argued constitutionally, you can get a membership and start learning about these right away. Your freedom might count on you and you alone. So many attorneys have not been raising these arguments and then getting parents to make purge deals. You will end up in an endless cycle of being dragged back into court over and over again and constantly slammed with more costs, fees, and arrears. They will continue to dig this hole as long as you keep letting them.
NOTE: This blog post is about and for parents who are not convicted of abandoning their child.
*Abby Simmons with the Star Tribune – “Minnesota Supreme Court Reverses Conviction of Dad Who Failed to Pay Child Support” article post from February 12, 2014.