Sunday, June 26, 2011

New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

Parental Divorce Reduction Act

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act.  The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics.  This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee.  For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period.  The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Many divorcing couples do not have these issues.  Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one.  On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

Wednesday, June 22, 2011

Fathers See Gains in County Family Courts

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.
Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case.  The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details.  For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point.  Physical custody, however, is a more contentious battlefield.  The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment.  Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time.  One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents.  Focusing on the parenting schedule rather than the custody label is the real trend at work here.

SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Bottom line: pay your child support obligations.


Sunday, June 5, 2011

Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.