Non-Father's Failure to Support Conviction Reversed
Friday / November 02, 2007
An administrative order to pay child support does not
legitimate a child.
In 2000, David Salazar and Shannon McClure married.
Within months, they separated. In 2001, Ms. McClure
had a child. Mr. Salazar was not the father: He and
Ms. McClure had not been intimate for fourteen months
prior to the child's birth. Ms. McClure asked the
hospital not to list Mr. Salazar as the child's
father, but the hospital listed him anyway.
The Missouri Division of Child Support Enforcement (DCSE) served Mr. Salazar with an administrative "Notice and Finding of Financial Responsibility," stating that Mr. Salazar was required to support the child because he was the child's father. Both Mr. Salazar and Ms. McClure told DCSE that Mr. Salazar was not the father. DCSE ignored them and obtained an administrative order requiring Mr. Salazar to pay child support. Mr. Salazar did not attend the administrative hearing, so the order was signed by default.
Later, Ms. McClure applied for public assistance. DCSE then filed criminal nonsupport charges against Mr. Salazar. At the criminal trial, Mr. Salazar and Ms. McClure testified that Mr. Salazar was not the child's father. Nevertheless, the trial court convicted Mr. Salazar of criminal nonsupport. The trial court held that the administrative order constituted "legitimization by legal process," which is required for a conviction for criminal nonsupport.
The Missouri Supreme Court overturned the conviction in a brief opinion. The Court held that a default administrative order for child support does not constitute "legitimization by legal process." In fact, no court ever had found that Mr. Salazar was the child's father. Although the law presumed him to be the father because the child was born during Mr. Salazar's marriage to Ms. McClure, that presumption could not support a finding of legitimization sufficient to support a criminal conviction.
The Missouri Division of Child Support Enforcement (DCSE) served Mr. Salazar with an administrative "Notice and Finding of Financial Responsibility," stating that Mr. Salazar was required to support the child because he was the child's father. Both Mr. Salazar and Ms. McClure told DCSE that Mr. Salazar was not the father. DCSE ignored them and obtained an administrative order requiring Mr. Salazar to pay child support. Mr. Salazar did not attend the administrative hearing, so the order was signed by default.
Later, Ms. McClure applied for public assistance. DCSE then filed criminal nonsupport charges against Mr. Salazar. At the criminal trial, Mr. Salazar and Ms. McClure testified that Mr. Salazar was not the child's father. Nevertheless, the trial court convicted Mr. Salazar of criminal nonsupport. The trial court held that the administrative order constituted "legitimization by legal process," which is required for a conviction for criminal nonsupport.
The Missouri Supreme Court overturned the conviction in a brief opinion. The Court held that a default administrative order for child support does not constitute "legitimization by legal process." In fact, no court ever had found that Mr. Salazar was the child's father. Although the law presumed him to be the father because the child was born during Mr. Salazar's marriage to Ms. McClure, that presumption could not support a finding of legitimization sufficient to support a criminal conviction.
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