Sunday, July 13, 2014

Digital Precautions in Preparation for Divorce

So you've decided to take that fateful step and file a complaint for divorce.  Prior to doing so, consider these tips, mostly taken from USA Today reporter Kim Kommando's article reprinted in the Freep.

1.  Change Passwords.  Although this seems intuitive, the Freep article points-out that 67% of couples share their passwords on at least one account.  The problem with this that once you begin sharing that password, it is difficult to become disentangled when things go south.

So review your digital estate and, on a device that is not shared with your spouse, change all of your passwords to a strong unique password, using at least one capital letter a symbol, and a combination of letters and numerals.  As pointed out by Ms. Kommando, avoid any combination with which your partner may be accustomed.

2.  Terminate Shared Profiles.  While cute when you're together as a couple, there is nothing more humiliating, even devastating, than having a joint platform which your spouse can co-opt as a soapbox, from which to trash you to your common electronic social circles.  Therefore, prior to making your divorce filing "official", be proactive in swiftly terminating such joint profiles.

3.  Sanitize the Hard Drive of a Shared Device.  Like social media accounts, many couples share computers, laptops, notebooks, tablets, even cell phones.  If this is the case, take a moment to wipe the drive clean after removing all of your key personal and financial data.  [Note: In many a divorces, such shared devices often "disappear".]

4.  Password Protect Your Own Devices.  Do not leave things to chance.  Many divorces cases begin with information one spouse acquired by browsing onto and into the other spouse's non-password-protected device.  If you are serious about filing for divorce, do not allow your spouse the up-front advantage of downloading all of your personal and private data stored on your cell phone, laptop, or tablet.  Call-logs alone can provide a wealth of information that you may not want in the hands of your spouse, or your spouse's divorce professionals.

5.  Curtail Your Social Media Activity.  In the past few months alone, I cannot believe how often we have experienced instances of a divorcing spouse leaving a trail of incriminating evidence on social media sites that are wide-open to the public.  Regardless of the fine-tuning available on the privacy settings of a user's electronic profile, we advise our at-risk divorce clients to simply reduce their presence on social media altogether while going through a divorce.  Easy, simple, problem solved.

If you take these five simple precautions prior to filing for divorce, you will be doing yourself a huge digital favor.  Good luck, its an electronic jungle out there.

Friday, June 20, 2014

Family Court Judge Did Not Violate Teenager's Constitutional Rights Excluding Her From Parents' Custody Hearing

By:  Timothy P. Flynn

This is a case with an important message from the Ohio Supreme Court.  Thus, while the In Re AG opinion, released yesterday, does not bind family courts here in Michigan, it is nevertheless instructive.

Since 2001, the teenager, A.G., grew up amid perpetual family court divorce proceedings in both Henry and Ottawa Counties in Northern Ohio.  At one point or other, each parent had custody of A.G.  During these various post-judgment custody battles, each  parent sought to sever all contact with A.G. by the other parent by taking the child out of state.  Pitched battles to be sure.

The entire mess came to a head in 2009 when a custody trial was scheduled to take place in Ottawa County Family Court.  Apparently, by that time, Father's parenting time was supervised; he was seeking unsupervised parenting time.  His then 13-year old daughter moved the family court to terminate all parenting time with her Father and for the right to attend the scheduled hearing to decide these issues.

The family court judge interviewed the teen in chambers in order to ascertain her "reasonable preference" regarding custody and parenting time, as we do here in the Michigan family courts.  But the judge denied the teenager's request to attend the trial.

A.G.'s appeal to Ohio's intermediate appellate court affirmed the family court judge's decision, as did the Ohio Supreme Court yesterday's opinion.  The Ohio High Court ruled that while a minor child has an interest in the ongoing divorce proceedings of her parents, she is not a party litigant with attendant rights to be present for all proceedings.

The Ohio Supreme Court also ruled that a family court judge has the discretion to exclude a minor child from the custody proceedings of her parents and that this exclusion does not violate the child's Due Process rights.

Over here at the electronic divorce attorney, we believe this is the correct decision.  One of our recent divorce trials lasted 10-days and featured the testimony of one of the parties' adult sons.

While a child may [rarely] be called as a witness to testify, they are sequestered from the proceedings.  There is no good reason for a minor child, however, to witness the mud and dirty laundry flung about the courtroom in an ugly divorce proceeding sponsored by her parents.

We hope the family court judges here in Michigan take note of this well reasoned opinion from the Ohio Supreme Court.

Wednesday, May 21, 2014

Lawyers Should Not Interview Children in Custody Disputes

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares.  Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents' lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute.  According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody.  One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews.  The 3-judge appellate panel's opinion stated, "these interviews are meant to be confidential exchanges between the court and the child."

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule.  Forcing a child to state her preference in an interview with her parents' respective advocates is wrong in the worst kind of way.  No child should have to deal with his or her parents' lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil.  Here at this blog, we saw this case as a "no brainer".  Parental advocates should not be used to determine a child's reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.

Tuesday, May 20, 2014

When Father is Relegated to the Weekend Parent

By: Timothy P. Flynn

A case that caught our attention from the Michigan Court of Appeals last month deserves mention in this blog.  The case comes from the St. Clair County's Family Court; the family court judge that ruled in Mother's favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.

In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child's week-on-week-off parenting schedule, allowing Mother to move with the child from Bay City to Troy.  The parenting schedule was modified so that Mother had the child during the school year and Father had evey-other-weekend.

In doing so, the family court judge was in part swayed by Mother's testimony that the move allowed her to be a "stay-at-home" mom due to her husband's new job.  The effect of the ruling was to relegate Father to a weekend parent.

Even though the move was not more than 100-miles [a statutory threshold], the family court held that it was significant because it involved a change in school districts for the child, and made the alternating weekly parenting schedule untenable.  The lower court concluded the proposed move was in the child's best interests, and Dad lost out.

In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear and convincing evidence]; and b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.

The burden of proof is significant in cases like this.  Mother's motion, if decided on a preponderance standard, is easier to establish and thus prevail.  If Mother had the heightened burden, the motion is more difficult to carry.

As for lying to the court about her job, that too should be taken into account.  On remand, however, the Court of Appeals noted that the lower court should also take into account the fact that the child was allowed to continue living with her Mother in Troy during the year this case took to decide on appeal.

Custody of our children, much like the possession of chattel, seems to be driven by the age-old principle: possession is nine tenths of the law.

Monday, April 28, 2014

Uniform Collaborative Divorce Law Act Passes Michigan Senate

By:  Timothy P. Flynn

Readers of this blog will recognize our commitment to the collaborative divorce process.  Whenever possible, given the circumstances and personal dynamics of the parties, it usually is the best way to go in family court.

The collaborative divorce model is where a married couple meets with a team of family law professionals [case facilitator, family counselor, financial planner] before filing for divorce, hopefully resolving all issues in a signed settlement agreement.  The process is collaborative rather than adversarial.

Across Michigan and our nation, there is a steady and growing movement toward favoring the collaborative model; the adversarial process is being relegated to a last resort.

Over the past four years, the Uniform Collaborative Divorce Law has been sweeping across the state legislatures.  Recently, the Michigan Senate passed the model act, sending it along to the House Judiciary Committee.

Because the collaborative divorce model is so distinct from the adversarial process, the uniform law calls for standards and training for lawyers wanting to add collaborative divorce to their practice.  The bill calls for the State Court Administrative Office to develop the training and lawyer qualification standards called for in the model act.

For its part, the SCAO does not want to be tasked with training the lawyers and wonders how it will pay for training and enforcing the standards.  Unlike the other states that have passed the model act, Michigan would be the only state requiring training standards.

These standards come to us from the Alternative Dispute Resolution Committee of the State Bar of Michigan's Family Law Section.

What is wrong with some additional training for family law lawyers, especially in thrust of the collaborative divorce resolution process.  In our opinion, this is a good law which will hopefully pass through the House and become law.

Divorce needs more collaboration and less opposition.

Tuesday, April 1, 2014

Divorce: There's An App For That Too

Were here at the electronic divorce attorney are not big fans of digitizing personal therapy in an app.  Or the divorce process for that matter.

Today's Freep touted the article Digital Divorce, profiling some nifty digital cell phone apps targeting couples going through a divorce.  Ever since a 20-something Minnesota lawyer created a cell phone app 5-years ago that calculates a parent's child support obligation, we've been seeing this kind of thing in droves.

The Freep's Katie Humphrey notes that there are hundreds of divorce-related apps; some of them even aid spouses with cheating hearts.  Go figure.

But just because its now available in an app, does not make the divorce process any easier.  Family law attorneys across Oakland County warn against substituting experience and professional skills with a self-help app designed by a techie with some minimal knowledge of divorce and family law issues.

Given the complexity of relationships and the divorce process, Ms. Humphrey rightly advises caution when relying on an apps for advice and information.  We also agree that most of the divorce-related apps, all with few reviews to offer market insight, are really just digital snake oil.

One of the apps featured in Humphrey's article, "The Grass is Greener" does seem to hold some value.  It is basically a marriage assessment tool, complete with a 39-question quiz spouses take to gain insight into the type of professionals they may need to hire in order to either: a) save their marriage, or; b) navigate the divorce process.

On balance, however, we are not worried that our lawyers will be replaced by apps anytime soon; no sooner than family court judges will be replaced by robots.

Monday, March 31, 2014

Stepparent Adoption Complicated by Legal Custody Label

About one year ago, the Michigan Court of Appeals recently gave us one more reason to care about legal custody when negotiating a divorce with minor children.  During the divorce process it is often difficult for those involved to consider the future and a possible remarriage down the road. 

If we are lucky, cupid strikes again, resulting in a second or third nuptials. Sometimes these marriages result in the progression toward stepparent adoption of their spouses’ children.  

The lesson learned by this recent Court of Appeals case, In re: AJR, Minor, is that an award of joint legal custody in a divorce judgment may result in a more complicated legal process down the road in the event that a stepparent wishes to adopt the child of their spouse.

In this case from Kent County Circuit Court, a father’s parental rights were terminated under the stepparent adoption statute [MCL710.51(6)] on the basis that father had failed to comply with a child support order and had neglected to visit his child during the previous two years. 

The Michigan Court of Appeals reversed the family court’s decision by determining that the stepparent adoption statute does not apply when the parents have joint legal custody.  It turns out that father was awarded joint legal custody of the child in the divorce judgment, thus having a say in the proposed adoption proceedings.  

Mother was awarded joint legal custody and sole physical custody, relative to the biological father. Mother then remarried and was hopeful that her new spouse could adopt her child.  The biological father refused to consent or agree to the termination of his parental rights in order to facilitate the stepparent adoption. 

When the Circuit Court granted the stepparent adoption, terminating father’s rights despite his previous award of joint legal custody, father's appeal was successful.  Our intermediate appellate court held that the statutory language of the stepparent adoption statute:
[i]s to be construed as requiring the parent initiating termination proceedings to be the only parent having custody…the rights of a parent who maintains joint legal custody are not properly terminated under [the statute].  [Emphasis and brackets supplied.]
Now, the case is being considered on further appeal by the Michigan Supreme Court; oral arguments took place last fall and a decision by the High Court could come at any moment.

The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody.  You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.