The Michigan Court of Appeals is publishing Evelyn v Shire (No. 242681, February 19, 2004), a decision in which the court reversed the trial court and remanded for a hearing and the entry of an order of child support. The trial court erred by concluding that the mother was not entitled to child support because the child was conceived as a result of an uncharged act of criminal sexual conduct with a fourteen-year-old boy. Child support is to provide for the needs of the child and is awarded without regard to the fault of either of the parents.
Owens writes (excerpt):
Subsequently, the Macomb County prosecutor, on behalf of petitioners, petitioned the trial court for child support.1 Respondent objected on the basis that (1) Brandon was conceived as a result of criminal sexual conduct perpetrated against him by Evelyn when he was fourteen years old, (2) Brandon was conceived and born while Evelyn was married to David, (3) respondent had no knowledge of Brandon until this case was commenced, and (4) Evelyn should not be allowed to profit (in the form of child support) by her misconduct.
The trial court determined that Brandon was a child born out of wedlock within the meaning of the Paternity Act, MCL 722.711(a). The court found no provision in the Family Support Act, MCL 552.451 et seq., that entitled Evelyn to her requested relief or that prohibited the court from refusing to grant relief under the circumstances presented in this case. The court then applied equitable principles to deny the petition for child support. After the trial court denied petitioners’ motion for reconsideration, petitioners appealed to this Court.
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Nevertheless, petitioners’ essential argument is that the trial court failed to follow the child support law. To the extent this issue was not properly raised on appeal, we have held that we may choose to “address any issue that, in the court’s opinion, justice requires be considered and resolved.” Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705; 499 NW2d 453 (1993), rev’d on other grounds 445 Mich 502 (1994). The underlying claim here is one of first impression in this state and is of great importance. We therefore conclude that it is appropriate for us to determine whether the trial court correctly decided not to order child support because the child was conceived as a result of an act of criminal sexual conduct in which respondent was the victim.
Respondent argued that he was the victim of an act of criminal sexual conduct committed by Evelyn because he was fourteen years old when she induced him to have sexual intercourse. He reasoned that because he was under the age of consent, his participation was legally involuntary. This argument confuses two distinct legal concepts. Because of his age at the time of the sexual conduct, the law refuses to permit the adult in the relationship to claim consent as a defense. People v Gengels, 218 Mich 632, 641; 188 NW 398 (1922) (“Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting.”); People v Bennett, 45 Mich App 127; 205 NW2d 831 (1973) (fourteen-year-old boy incapable of giving legal consent to act of taking indecent liberties). Therefore, even if respondent was a willing participant in the sexual intercourse, Evelyn could still have been charged with, at least, third degree criminal sexual conduct. MCL 750.520d(1)(a) (victim between 13 and 16 years old).
However, the issue presented by this case is not Evelyn’s criminal culpability for criminal sexual conduct, or whether respondent was – or could have been – a “consensual” participant in that activity. Rather, we are concerned with whether respondent may be liable for child support for the child that resulted from the sexual activity. Child support is not imposed to penalize or victimize either parent. “The purpose of child support is to provide for the needs of the child.” Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002), citing Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989).
Guidance regarding this determination may be derived from the decisions of sister states that have confronted this issue. The courts that have considered this issue have uniformly concluded that the fact that a child results from the criminal sexual act of an adult female with a minor male does not absolve the minor from the responsibility to pay child support.
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We agree with these authorities. The record indicates that respondent participated in the act of sexual intercourse that resulted in the conception of Brandon. Respondent is not absolved from the responsibility to support the child because Evelyn was technically committing an act of criminal sexual conduct. The public policy of this state seeks to secure support for children. Contrary to respondent’s view, Evelyn does not “profit” from her criminality. “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar, supra at 35. We recognized in Pellar that “[t]he needs of the child are of overriding importance.” Id. This important public policy is furthered by requiring respondent to pay child support. The trial court erred by refusing to award child support on the basis that respondent was the “victim” of an act of criminal sexual conduct. We therefore reverse the order denying child support and remand this case to the trial court for a hearing to determine the proper amount of support respondent should be required to contribute.