by: Maury Beaulier, Attorney.
Continued..
Cases that are ranked as priorities may include:
Possible Defenses
In screening cases, some of the possible defenses which should be considered are:
1. Payment-in-kind - Often, a "non-paying" parent will provide other assistance to his or her children, such as food, clothing, tuition or other direct financial assistance not recorded or known to the child support agency monitoring the case. Such "payments" may bear upon the issue of willfulness.
2. Constitutional Challenges. Challenges to the constitutionality of the statute may be made. In part, it may be argued that statute is overbroad and unsupported under the Interstate Commerce Clause or the 10th Amendment.
3. Amount Accrued. A defendant may assert that the arrearage amount of $5,000 accrued prior to the enactment of the statute.
The United States Court of Appeals for the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 9th and 10th circuits have all affirmed the validity of the Act, despite claims that it interferes with interstate commerce and is an infringement upon state sovereignty because it encroaches on the field of family law. However, the United States District Court for the Western District of Michigan (Sixth Circuit) held that the Child Support Recovery Act (CSRA) - the precursor to the DPPA - is not a proper exercise of Congress’ power to regulate interstate commerce. The Court stated that the CSRA criminalized conduct that was not criminal in Michigan (the father’s failure to comply with a Michigan child support order). The Court also stated that by criminalizing the failure to pay based solely on the parent’s residence in a different state than the child, regardless of how that diversity in residence resulted, the CSRA went beyond Congress’ stated intent in passing the law preventing parents’ interstate flight to avoid child support payments.