When Might a Parent Have a Case For Malicious Prosecution?

Last updated: 21 Jan 2009

Doug Dante
DougDante1@yahoo.com

I am not a lawyer, and this is not legal advice.

Michigan law says (MCL 200.6097):

"Every person who shall, for vexation and trouble or maliciously,

cause or procure any other to be arrested, attached, or in any way
proceeded against, by any process or civil or criminal action, or in any
other manner prescribed by law, to answer to the suit or prosecution
of any person, without the consent of such person, or where there is
no such person known, shall be liable to the person so arrested,
attached or proceeded against, in treble the amount of the damages
and expenses which, by any verdict, shall be found to have been
sustained and incurred by him; and shall be liable to the person in
whose name such arrest or proceeding was had in the sum of $200.00
damages, and shall be deemed guilty of a misdemeanor, punishable
on conviction by imprisonment in the county jail for a term not
exceeding 6 months."

http://www.legislature.mi.gov/mileg.aspxpage=getObject&objectNam
e=mcl-600-2907

To me, malicious prosecution encompasses all sorts of potential acts, including:

● filing false police reports

● false allegations of denial of parenting time
● intentional false statements of paternity or maternity
● willful refusal to investigate claims of non-paternity or false identity,
attachment of income without hearing, or other violations of due process
conducted by any person at the Friend of the Court
● false statements regarding the income of the other party forcing that party
to expend unnecessary time and effort to have the child support set
correctly based on the properly application of the Michigan Child Support
Formula.
● Fraudulent manipulation of child support calculations using the Michigan
Child Support Formula Manual or false statements made during a child
custody hearing, possibly for the purpose of punishing a parent or
maximizing state and federal funds toward the Friend of the Court.

There are many potential actions, but the rest of this article will focus on a parent
who is tried and acquitted on felony failure to pay child support.
If a parent were tried for the felony of failing to support his/her children, and he or
she were acquitted, and that parent had attempted to pay what he or she could,
when he or she could, then he or she may have a case for a civil suit against the
prosecuting attorneys in his or her case for Malicious Prosecution, especially given
the financial incentives to the prosecutor's office for child support cases.

http://en.wikipedia.org/wiki/Malicious_prosecution

Given that the CSPER report shows how prosecuting attorneys get federal dollars (
$15.2 million in 2005) through the Friend of the Court for these prosecutions, to
me, it seems like it's probably straightforward to convince a jury that the lure of
this money, rather than the interests of justice, the prompted the prosecution.

http://courts.michigan.gov/scao/services/focb/CSPR12-
06ReportAndRecommendations.pdf
http://www.scribd.com/doc/477791/A-Review-of-the-CSPER-Report

While it is an admirable thing for a prosecutor to use the law to punish a parent
who willfully fails to pay for his or her children, sometimes, in their zeal to obtain
payment, prosecutors may neglect to observe certain legal requirements. In the
end, they may, in effect, be collectively punishing those who are related to or
otherwise care about the parent in question.

http://en.wikipedia.org/wiki/Collective_punishment

In particular, the “magic fountain” theory seeks to force money from

grandparents, churches, and others on the theory that if you treat a parent badly
enough, someone who cares about him or her will eventually pay. These people
may include grandparents or churches. See Law and the Economics of Child
Support Payments, William S Comanor, page 136, available here:

http://books.google.com/books?id=dRY1-
7WFlTwC&pg=PA136&lpg=PA136&dq=child+support+magic+fountai
n&source=bl&ots=TvsLwSe3e3&sig=FFknyGg7OWzMctA6t3gK5cMp1
cE&hl=en&sa=X&oi=book_result&resnum=1&ct=result

To me, surviving summary disposition is probably most critical.

In Walsh V Taylor, the Court of Appeals addressed this issue:

In maintaining a claim of malicious prosecution, a plaintiff bears the

burden of proving that (1) the defendant has initiated a criminal
prosecution against him, (2) the criminal proceedings terminated in
his favor, (3) the private person who instituted or maintained the
prosecution lacked probable cause for his actions, and (4) the action
was undertaken with malice or a purpose in instituting the criminal
claim other than bringing the offender to justice."Regarding summary
disposition:"We review de novo a circuit court's summary disposition
 ruling. Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613;
664 NW2d 165 (2003). Taylor moved for summary disposition
pursuant to MCR 2.116(C)(7) and (C)(10). Although Taylor sought
summary disposition, in part, on the basis of governmental immunity,
the immunity provided byMCL 691.1407(2) does not apply to an
intentional tort by an individual governmental employee,such as is
alleged by plaintiff in this case. Lavey v Mills, 248 Mich App 244, 257;
639 NW2d261 (2001); Sudul v Hamtramck, 221 Mich App 455, 458,
481, 486-488; 562 NW2d 478 (1997).The trial court did not specify
the basis for its ruling, but apparently denied Taylor's motion pursuant
to MCR 2.116(C)(10), which tests the factual support of a plaintiff 's
claim.1 Spiek vDep't of Transportation, 456 Mich 331, 337; 572 NW2d
201 (1998). In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the non
moving party to determine whether any genuine issue of material fact
exists to warrant a trial. Spiek, supra at337."To contemplate
immunity, the court says that it has to determine if there was
probable cause before a matter gets to a jury:""'To constitute
probable cause . . . , there must be such reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant an ordinarily cautious man in the belief that
the person arrested is guilty of the offense charged.'" Matthews,
supra at 387-388, quoting Wilson v Bowen, 64 Mich 133, 138;31 NW
81 (1887). "Probable cause . . . is a commonsense concept dealing
with practical considerations of everyday life that must be viewed
from the perspective of reasonable and prudent persons, not legal
technicians." Peterson Novelties, supra at 19."

http://courtofappeals.mijud.net/DOCUMENTS/OPINIONS/FINAL/COA/20
040923_C246059_42_187O.246059.OPN.COA.PDF

If a parent is $1.00 behind, or 1day late, then yes, he or she is in strict violation of
the law, but "from the perspective of reasonable and prudent persons, not legal
technicians", the person has committed no crime. If I were a parent in his
situation, I might argue through my attorney that I paid as much as I could, when I
could, and paid substantially, and that the prosecutors in my case did not
rationally believe that I was guilty of felony non-support.

While no one expects a prosecuting attorney to prosecute a parent in the

hypothetical situation above, parents are sometimes prosecuted when there is
substantial evidence that the parent who owes child support was denied his or her
statutory right to expedited administrative or judicial procedures to have his or
her child support modified. Given the financial conflicts of interest that the friend
of the court has in processing these modification requests, it comes as no
particular surprise that some local friend of the court offices have devised
extensive mechanisms to effectively thwart parents who seek modifications.
 http://www.scribd.com/doc/458394/Michigan-Friend-of-the-Court-
Child-Support-Modification-Request

It may be the case that a truck driver has had an accident, is permanently
disabled, and is unable to work. After several years of struggling to pay his or her
child support, and making only minimal payments with his or her social security
disability income, he or she may discover that he or she is being charged with a
felony, because he or she is thousands or even tens of thousands of dollars
behind.

Rather than see their disabled son or daughter in a jail cell which could easily kill
him or her, the parent's own parents, already financially stressed by caring for
their grown and disabled child, are forced to sell all of the property they own and
abandon all hopes of retirement in order to pay their child's debt to their
grandchildren, often while suffering the emotional toll of being completely
estranged from those same grandchildren.

People in situations like this are not hypothetical, and appear commonly on the
FRC (Family's/Father's Rights Coalition) Yahoo! mailing List.

http://groups.yahoo.com/group/FRC/

Rather than prosecuting a criminal, the prosecutors in these cases may be, in
effect, being paid by the FOC, using state and federal taxpayer dollars, to engage
in a shakedown operation. Prosecute those who are behind, threaten with felony
convictions, and see who comes up with money.

In other words, the prosecuting attorneys may not actually believe that this parent
committed a crime, not from "the perspective of a reasonable and prudent
person", but rather that this parent was a good parent doing the best that he or
she could, and that he or she was only in technical violation of the law.

Prosecuting attorneys may say that a parent was selected for prosecution because
"that's policy". For example, it may be policy to prosecute every parent who is
$5,000 or more behind in payments. That is not a lawful policy, because it
instructs prosecuting attorneys to prosecute even when they believe no crime has
been committed.

It may be necessary to find a friendly witness on the prosecution team, such as a

disillusioned former team member, who can testify to these hidden and unwritten
policies, and the private comments of prosecutors acknowledging the injustice of
the situation, while participating in it and earning taxpayer dollars directly from it,
before proceeding with an effective case of malicious prosecution against them.

If this were me, I would consider my options and seek legal help from a licensed
attorney, checking carefully to verify that he or she has no significant conflicts of
interest, before proceeding with any legal actions.
Best of Luck!