Saturday, May 19, 2012

Sex Offender Status Now Terminates Parental Rights

Murder, felonious assault resulting in serious injury to a child, voluntary manslaughter; these are convictions that cause parents to lose their parental rights while doing time in the penitentiary.  Now add to that list: registration on the Sex Offender Registry.

As of May 1, the applicable statute now states that the Department of Human Services is not required to take "reasonable efforts" to unify parent with child if the parent is required to register as a sex offender under what is known as SORA.

Of course, some controversy has surrounded this legislation.  On the one hand, critics observe that family court judges can now essentially terminate parental rights for no reason other than the SORA requirement.  On the other hand, those same family court judges apparently have the discretion to order the DHS to make "reasonable efforts" to reunify parent and child, same as always.  Apparently, in the passage of this law, there was significant consideration given to obtaining federal grant money available if this was the law in Michigan.

This leads to some interesting implications for us criminal defense attorneys.  For example, Ionia County Family Court Judge David Hoort asks:
In criminal cases does this then require advising a defendant that his/her plea to an offense resulting in registration under the SORA could result in a termination of his/her parental rights?  Even if unrelated to the existing charge?  
That's a good question.  No surprise that SORA will continue delivering harsh consequences for those caught-up in its net.

Thursday, May 17, 2012

Boyfriend's Background Check Refusal Causes Child Custody Modification

In this modern day, it is very important to know with whom your children are associating.  Danger lurks everywhere, including in the home next door, down the street, across town, or across the country.

Earlier this week, the Michigan Court of Appeals issued an opinion for publication [meaning that it now binds all lower courts] in a case from the Newago County Family Court.  The case, Mitchell v Mitchell, holds that a Mother's refusal to abide by a family court's ruling to provide a background check on her live-in boyfriend is "just cause" to modify custody.

In Mitchell, the parents divorced and Mother eventually moved to Texas.  Apparently, Mom's boyfriend was instrumental in the all-too-common process of alienation directed at the non-relocating parent.  Mom did not fire-up the Skype and botched a few Texas to Michigan trips, as ordered by the family court at the time it granted leave for the relocation.

Most importantly, however, Mom and her boyfriend refused to provide the court-ordered background check.  This proved fatal to her custody case and now, Dad has the kids.  What a mess.

From time to time, our law firm gets cases where one parent, in moving on to other relationships, exhibits risky behavior relative to the selection of his or her live-in partner.  In such cases, what can the other parent do; just sit back and wait for the damage to be done?

Now, thanks to the published Mitchell decision, one safeguard that can be requested is for the family court to order a background check of the individual.  If used properly, this device will provide some information that would otherwise be unavailable.

A competing concern is, of course, the privacy of the individual.  This ruling can, and no doubt will, be used offensively and improperly as often as it is used in the fashion intended by the 3-judge panel of the Michigan Court of Appeals.

All we here at the Law Blogger can say about that is: is he or she really worth it?  Best to err on the side of caution for the safety of the children.

In our practice, we routinely counsel clients to take it slow when it comes to introducing young children to the new "significant other".  Divorce is unsettling enough; the new person is most often seen by the kids, even when nice, as a threat.  They may repress their anxiety in order to gain approval from the relocating parent.

What a mess we can make right in our own kitchens.

The best defense to all of this is to exercise good judgment and to err on the side of putting the kids first; something that Kate Mitchell was found not to have done.  In so doing, she has unwittingly handed us family law attorneys a defensive weapon which can be wielded in the protection of the children.