Sunday, September 20, 2009

Mich Supreme Court Passes on DNA Paternity & Parenting Case

Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son.  (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.)  DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce.  Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test.  For his part, Father requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio.  Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son.  The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess. 

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago.  The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.  In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.
The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states.  Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another.  The doctrine is for the benefit of the child, not the parent. 

The Lipnevicius case is destined to return to the Michigan Supreme Court.  Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable parent doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent.  Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

Sunday, September 13, 2009

Contempt of Family Court Orders Can Result in Jail - Lots of It

A recent Michigan Court of Appeals decision highlights the powers family court judges have in enforcing their orders.

In Powers v Powers, the Wayne County Family Court jailed a Massachusetts woman for her refusal to abide by a series of parenting orders.  She was given the option of paying more than $4000 in sanctions that had built-up in the case, or serve two days in the Wayne County Jail. 

This case, and hundreds like it across the state, highlight the power of family court judges to govern family actions once the court has jurisdiction over the family members.

The appellant's assertion that a court's powers of contempt were criminal and thus, could not be exercised in family court was rejected by the Court of Appeals.

This past summer, perhaps the most striking example of a family court's contempt powers gained national attention.  A Philadelphia, PA corporate attorney spent 14-years, yes that's Fourteen Years, in jail on a contempt charge based on his failure to pay his ex-spouse 2.5 million in a divorce settlement.  More details on this interesting use of a family court's contempt powers, along with commentary, is attached in this link

There has long been a debate among attorneys regarding the contempt powers of family court judges.  These powers are particularly disruptive/intrusive in matters of custody and parenting time.  Most family court judges mete out contempt punishments sparingly, and as a last resort.  Often, family law attorneys counsel clients in ways that avoid the drama of contempt proceedings and show cause hearings.  Sometimes, however, a party needs to be forced back to the fold.

If you would like your divorce judgment reviewed, or go over other options you may have based on the family court orders entered in your case, contact our office.


Friday, September 11, 2009

Children 14-times more likely to get swine flu

This blog post is from the Updates in Michigan Family Law Blog of Traverse City Attorney, Jeanne Hannah:

Of camps and day care:
Kids 14 times more likely to get swine flu

"Mom, can I have a sip of your water?" This is a pretty easy question when you're talking to your young child, right?

WRONG! Brigid Schulte, Washington Post Staff Writer wrote on Saturday, September 5, 2009 about how insidious the swine flu is, how susceptible to exposure and potential infection our children are . . . and how we have to worry about such simple things as . . . it's a hot day, your child is thirsty and wants a sip of your water. We tend to think of our young children as sharing the same germs we all share at our house.

But, when you have summer camp, computer camp, day care, school, etc. all in the mix . . . bottom line? We don't know whose germs might be spread when we share a simple glass of water with anyone, even our loved ones.

Read Brigid Schulte's article "How, Gulp!, You Get Sick During the Swine Flu Season, Think Before You Share a Drink With Someone" on the Washington Post site.

An Article in the Wall Street Journal published on August 27th, byline Shirley S. Wang, says that "[o]ne of the unusual things about the swine flu is that it often strikes young, healthy people, while skipping over the elderly." According to the WSJ, kids and young adults are 14 times more likely to get swine flu. See the WSJ Blog article here: Study: Kids 14 Times More Likely than Elderly to Get Swine Flu.

This news is just in from the September 5th New York Times: Over 2,000 students at the University of Washington have reported symptoms of swine flu. Classes have not even started yet! They are planning to distribute antibacterial hand sanitizer where large crowds congregate such as football games.

See a CDC report released on August 28th here. The CDC confirms that children and young adults are at a disproportionate risk for infection and hospitalization and that it is appropriate to direct appropriate prevention strategies at this population. See also the CDC’s recommendations about H1N1 flu vaccinations. in the CDC report linked above.

The Michigan statistics on H1N! flu are pretty compelling. Check out those numbers for Wayne, Oakland and Macomb counties.

What You Can Do to Stay Healthy

According to the CDC, the following are ways in which you and your family can avoiding catching swine flu. First, stay informed. The CDC website will be updated regularly as information becomes available.
Influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people.
Take everyday actions to stay healthy.

Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hands cleaners are also effective.
Avoid touching your eyes, nose or mouth. Germs spread that way.
Stay home if you get sick. CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them.
Follow public health advice regarding school closures, avoiding crowds and other social distancing measures
Find healthy ways to deal with stress and anxiety.
More from the CDC H1N1 Update: CDC Issues Guidance for Early Childhood Programs

The CDC has issued guidance to help reduce the spread and severity of influenza among children in early childhood programs and their providers.

Based on the severity of 2009 H1N1 influenza so far, recommendations include:

Children and staff in target vaccination groups should be immunized.
Those with flu-like illness should stay home until they've been without fever for 24 hours (without using fever-reducing medications).
Child care providers should check staff members' and children's health daily, and separate ill individuals from others until they can be sent home.
Treatment within 48 hours of illness onset should be encouraged for those at high risk for flu complications.
If influenza severity increases, additional strategies include:

Children with ill household members and high-risk staff should be allowed to stay home.
People with flu-like illness should remain at home for at least 7 days after symptom onset.
Program closures should be considered.
CDC guidance document (Free)