Tuesday, December 21, 2010

Michigan Supreme Court Affirms Father's Child Support Obligation Even When Parental Rights Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Supreme Court's decision in the DHS vs Beck case.

Earlier this year, we posted on the Michigan Court of Appeals decision that held a father, whose chronic drugging resulted in the complete neglect of his children and termination of his parental rights, nevertheless remained obligated to pay child support for his two children.  The published Court of Appeals decision was just affirmed by the Michigan Supreme Court.

This case arose from the Oakland County Family Court; it was Judge Martha Anderson that initially terminated Mr. Beck's parental rights.  Both parents had been abusing drugs so their two children were placed with grandparents.  For her part, the mother  got straight, and otherwise complied with a DHS parenting plan; she now has the children.

The Supreme Court's Beck decision is remarkable in that it is the first decision to be issued by the Court in the current term.  Also, although the decision affirms the holding of the Court of Appeals, it does so on grounds different then those relied on by the intermediate appellate court.

The father in Beck did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  Like the intermediate appellate court, the Supreme Court was not convinced, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court analyzed the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The appellate courts also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In affirming the Court of appeals, the Supreme Court not only separated parental "rights" enumerated in the juvenile code, from the duties set out in the Child Custody Act, it also held that parental rights contained in the Custody Act were distinct and thus independent from the duties created by that same Act.

Of note in the dicta of the Court of Appeal's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

This is the right decision.  If getting high is more important to a father than parenting, the rest of us should not have to pick-up the slack for that father and supply public benefits for such a man's children.  He should pay as well, even if he can no longer see his children.

Such are the choices we make in life.



Saturday, December 11, 2010

Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright.  That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.

Cameron produces the North Oakland Divorce Blog.  This post is his original content; thanks Cam.

Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. 

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. 

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue. 

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.

Cameron's email: goulding@camerongoulding.com

Tuesday, December 7, 2010

Bankrolling the Divorce Settlement

We've all heard about lenders that specialize in loaning to personal injury plaintiffs in advance of their settlement. These firms front the money to the plaintiff, at a significant discount from the amount expected to be realized in the ultimate settlement.

This same princple is being applied to divorce judgments.  Get your money now and your divorce later.

Mind you, this is not for folks with middle-class marital estates.  Rather, this brand new industry is developing on the left and now the right coasts for married couples that have estates north of 2 or 3 million.

For example, Balance Point Divorce Funding of Beverly Hills, CA was started last year by an attorney, Stacey Napp, with funds she obtained from her own divorce.

In New York City, it looks like it's going to be Churchill Divorce Finance; a firm gearing-up for a mid-winter opening with the promise of, "leveling the legal playing field."

Each of these lending firms will specialize in lending money to parties involved in divorce who are expecting to walk away from court with a fair amount of hard cash; millions in fact.  Hard to believe here in Michigan, but those folks are out there.

One advantage of such firms is the ability for a "non-earning" spouse to obtain money in order to pay lawyers and forensic accountants to go after hidden assets, or "cooked" books in the family-owned business.

For others, it's simply an opportunity to get the money now in order to fuel that new, post-divorce lifestyle.  In  many cases, a little money up front goes a long long way.