Family Court Judge Denies Divorce

Family Court Judge Edward Garrison

This one comes to us from Southern Florida, courtesy of our blogging friend, Jeanne Hannah.  A family court judge in Palm Beach County took a divorcing couple to task in a tersely-worded opinion, ordering the couple to remain married and refusing to grant the requested divorce.

Why? You ask.  After a two day trial in November during which both husband and wife testified as to significant unreported income, cooked business books, hidden assets, re-titling assets in other family members' names and other mutual marital misdeeds, Judge Edward Garrison wanted to jail the couple but could not, being only a family court judge and not presiding over a criminal case.

Apparently, in denying the couple's prayer for equitable relief, the good judge also sensed that he was being played.  The court assessed the joint demeanor of the couple as being indicative of an intact relationship.

Perhaps the judge sensed that the requested divorce was simply another ruse by the couple to defraud their creditors and business associates.  So Judge Garrison refused to divorce the couple, laying down a ruling believed to be the first of its kind in an American family court:

This Court is unable to impose the appropriate remedy for the parties since this is not a criminal court, but, if the appropriate agencies do not read the transcript, or if the indictments are slow in coming, perhaps the parties may remain out of jail long enough to raise their fifteen year old daughter to the age of majority.  For now, the only appropriate remedy is for them to remain married to each other.

The divorce request in the Husband's chief complaint: Denied.  The divorce requested in the Wife's counter claim: Denied.  Husband is appealing the court's decision.

This case is truly a first in the annals of American Family Law.

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100th Post - Thank You Readers

This is our 100th post; thanks to all our readers and to the folks that post comments to this blog. It has taken us several years to muster 100 posts here at the electronic divorce attorney. Check out the very first post from 2009.

This blog focuses on all things related to divorce, child custody, parenting time, and other family law related issues. We have attempted to impart to our readers information on the changes and currents in the family law.

The electronic divorce attorney is a companion blog to the other blogs maintained on our law firm's web site. In the upcoming months, look for regular posts from the attorneys from our law firm, Clarkston Legal, and from guest bloggers in the industry.

Again, thank you for taking the time to check out our blog. We hope you enjoy our future posts.

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Conservator Can File Divorce on Behalf of Ward

As a Public Administrator, I have seen this issue come up from time to time: a person deemed incompetent and in need of a professional fiduciary to manage the protected individual's affairs is married, but either the fiduciary [a conservator or guardian] or the spouse files for divorce.

The powers of a conservator were recently challenged in a separate maintenance case from Kent County.  The Michigan Court of Appeals held in the Estate of Jeff Bently -v- Ruby Bell Bently, that a conservator could file for separate maintenance and divorce.

The husband was unable to care for his own affairs and had been separated from his wife of 20-years since 2008.  After a conservator was appointed, the conservator promptly filed for separate maintenance; she could have just as easily filed for divorce.

On appeal, the wife argued that the Kent County Family Court Judge did not have the authority to order a judgment of separate maintenance because her husband lacked the capacity to consent to the proposed property division.  In affirming the family court, the Court of Appeals held that the conservatorship statute and applicable court rules provide for a conservator to file law suits and defend law suits on behalf of the protected individual, without limitation.

Based on a plain reading of these applicable statutes and court rules, the Court of Appeals held that a conservator, and presumably a guardian as well, can prosecute a divorce proceeding on behalf of the protected individual.

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Bi-Coastal Custody Battle Examines Rights of Pregnant Women

Gold medalist Bode Miller

By:  Timothy P. Flynn

The photo at left notwithstanding, Bode Miller has picked-up several Olympic skiing medals in both Salt Lake City and Vancouver over the past decade; he is currently training for the 2014 Winter Olympics in Sochi, Japan.  As a result, he is one of the few household names in men's downhill skiing.

Now he also is becoming known for a bi-coastal custody case involving a woman he briefly dated, and impregnated, from the match-making site for wealthy super-stars: Kelleher International.  This morning, he is scheduled to appear in the Manhattan Family Court for proceedings to establish temporary custody of his 9-month old son.

As happens so often, the mother of the child, Sara McKenna, became disillusioned with the father shortly after announcing her pregnancy, moving from San Diego to New York City to attend Colombia University on the GI Bill [she is a U.S. Marine].  Miller hired lawyers and sued in the Manhattan Family Court to have McKenna return with the couple's then-fetus, to San Diego where he maintains a residence.

In a surprising ruling last June, a Manhattan Family Court Referee issued a decision impugning the mother's conduct, accusing her of appropriation of the fetus [an inchoate form of parental kidnapping], and of forum shopping.  The Referee's preliminary ruling determined that McKenna's conduct was sufficiently "reprehensible" to justify a departure from New York law and ordered the infant returned to San Diego even though the child's "home state" is New York by virtue of the fact that he was born in NYC.

Bode Miller turned-up in the Big Apple last September, with his new wife in tow, to snatch the baby from the arms of a highly distraught McKenna.  This caught the attention of some of Manhattan's high-powered family law attorneys and an appeal was lodged with the New York Supreme Court Appellate Division.

In reversing the Family Court Referee, the appellate court held that a custody case cannot be filed prior to birth, as was done by father's attorneys.  The appellate ruling held that McKenna's relocation to NYC during her pregnancy was not relevant to the determination of the infant's "home state" under the applicable New York law.

The appellate ruling has implications that protect the constitutional rights of pregnant women to move about the country, despite being pregnant.  Putative fathers cannot restrict the constitutional liberties of the women whom they impregnate according to this important decision.

This custody case was remanded back to the Manhattan Family Court and is scheduled for a hearing this morning on the issue of temporary custody.

Sometimes, parents feel they are victims to the subjective rulings of family court professionals: the judge, the referee, or the family counselor of the Friend of the Court.  Whenever you face custody proceedings in a family court, it is best to secure representation from a lawyer that has experience in dealing with the professionals in that court.

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Married With Separate Assets

Having represented hundreds of married couples, we have seen plenty of them present to us for a divorce with the proverbial separate bank accounts.  It seems there is a correlation between a separate bank account and a separate heart.

Money, as with sex and religion [and we would hasten to add, children], is one of the primary things that couples argue about and get divorced over.  Money, as the bible tells us, is indeed the root of all evil.

Even so, if evil, money is a necessary evil.  Here are some potential problems with couples that maintain separate bank accounts and assets:

1. Mistakenly separate property.  If a couple gets married and brings their separate accounts to the marriage, even without overly co-mingling the assets by creating a joint account, such property can eventually get co-mingled over time and become part of the marital estate.  An example of this would include where one spouse uses the funds from a separately titled account to pay marital bills.  When you enter into a marriage and desire to keep your separate property separate, you have to be certain to segregate the property.  Even when you do, us lawyers love to find ways to "invade" the separate property of the moneyed spouse and haul it into the marital estate.  If you are getting married but insisting on the maintenance of separate property, then you should consider executing a prenuptial agreement.
2. Separate property has greater exposure to creditors.  When you are sued by creditors or file for bankruptcy, joint assets are unavailable to satisfy the judgment creditor and the bankruptcy trustee.  Now be careful here; you cannot just go plunging your money into a joint account to avoid creditors.  That would be deemed a fraudulent transfer made to avoid creditors and such assets may be used to satisfy the creditors.
3. Administrative complication upon death.  If a married couple maintains separate checking accounts, then some administrative issues will arise in the event that a spouse dies.  For example, the surviving spouse may need to secure a death certificate prior to accessing the funds in the account, assuming that she was named as the power of attorney.  This is not inherently difficult to do but, do you want to be doing it amid the funeral and burial of your loved one.
4. Separate accounts do not encourage financial communication.  Finally, maintaining separate accounts does not foster open communication between spouses about their finances.  The other spouse is left to guess as to the net worth of the individual, the net worth of the marital estate.  One spouse may never know about any savings cushion unless asked.  The overall financial picture of the couple remains hidden from full view.  When it comes to finances, this is usually not a good thing in a marriage.

Maintaining separate assets is a tactic that most often comes from old habits dying hard.  We find that the older a couple is when they get married, the more likely one or both partners will maintain that separate checking account, or keep that one asset in their sole name, almost like a symbolic insurance policy.  But we have to ask, insurance for what.

Going "all in" with joint accounts and jointly titled assets is the better plan for the long term marriage.  This is especially true if the couple executes estate planning documents shortly after their nuptials.

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CEO Divorce: What's in it for the Shareholders?

By: Timothy P. Flynn

There is no doubt that a divorce proceeding affects any professional's work routine; that includes, of course, corporate executives.  The distraction of a divorce in the board room, however, affects others outside the company; it pulls the corporate shareholders within its scope.

We're not just talking about guys like Mad Men's Don Draper, whose divorce temporarily but significantly affected the partners of a successful NYC advertising agency.  A CEO's divorce can affect the bottom-line for the shareholders in the company.

There are several ways that an executive's divorce could affect the company for which he or she manages.  First, if the executive has a significant stake in the company, the divorce could affect the executive's controlling interest.  The divorcing spouse will want a portion of the value owned by the executive and that value could affect control of the company.

Second, the divorcing executive's corporate focus and energy levels will be impacted by the trajectory of his or her divorce proceeding.  It is no surprise that business studies and surveys have shown that well over one-third of companies report a negative productivity impact directly arising from the divorce of an executive.

Third, the divorcing executive's strategic decision making can be influenced by the divorce proceeding.  If, for example, the executive is funding her divorce settlement with personal assets so that she can retain her share of corporate ownership, her outlook toward risk could be impacted: i.e. she may become more risk-adverse in the short term in order to protect her suddenly less-diversified and more concentrated net worth.  Being less risk-adverse may not be good for the company or its shareholders.

All of this affects a shareholder's interest in the company.  In many cases, perhaps because of the above examples, corporate divorces are handled as privately as possible.

The collaborative model we prefer here at Clarkston Legal serves the executive, and thus her company, very well.  The collaborative model is where the divorcing parties, and their team of professionals, meet and negotiate a settlement before a divorce proceeding is officially filed with the family court.

If you or your spouse are considering a divorce and there are corporate implications, you should give serious consideration to the collaborative model.  To learn more, contact us for a free consultation.

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Minor's Guardian Cannot Prevent Grandparent Visitation

The Michigan Court of Appeals ruled earlier this month that a court-appointed guardian of a minor child cannot prevent contact between the child and his Grandmother.  Thus, this case holds that a minor's guardian is not the equivalent of a parent.

This case, Book-Gilbert v Greenleaf, is one of first impression in Michigan as no prior decisions directly touched on this issue.  The published and thus binding decision will have a significant impact on minor guardianships.

The facts in the case are sad, as are so many of the cases from our family and probate courts.  The minor's mother is deceased and his father, once homeless, is in prison on a sex abuse conviction.

After nearly a year of not being allowed to see her grandson, the paternal grandmother sought visitation under the grandparent visitation statute.  She filed a motion in the Genesee County Family Court hoping to go over-the-head of her grandson's guardian, who repeatedly refused the grandmother's requests for visitation.

Family Court Judge Kay Behm ruled after 4-days of evidentiary hearings that a guardian could step into the shoes of a parent and deny contact with the grandmother.  In ruling in the Grandmother's favor, the Court of Appeals reversed Judge Behm holding that: the grandparenting statute was not properly followed; that the Legislature elected not to equate a guardian with a parent in the context of the grandparenting statute; and that the minor guardianship and the grandparenting statutes cover different subject matter.

The next step is reunification between grandmother and grandson.  For this young boy's sake, hopefully this will go well; he already has a very troubled past.

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Same-Sex Divorce

With all the attention that same-sex marriage has garnered over the past few years, could the focus on same-sex divorce be far behind?  The divorce cases, with their attendant issues, are just beginning to manifest.

The problem for many same-sex married couples that hit the skids is that, when they move to states that do not recognize their same-sex marriage, they cannot get divorced in that state.  At that point, they face a series of undesirable options: moving to one of the 14 states that recognize same-sex marriage to secure a divorce, staying in an emotionally unhealthy relationship, or informally deconstructing their marital estate and family.

Recently, we spotted an article in the NYT featuring just this problem for a couple in Mississippi.  The couple was married in California -a state that, through much blood and sweat, recognizes same-sex marriage post-Hollingsworth.  While the Sunshine State allows non-residents to prosecute a divorce by waiving the six-month residency requirement, the couple would not likely have the important issues of custody and property division resolved in their judgment of divorce; they wind-up with a piece of paper but not any peace of mind.

One option they apparently missed was the preparation and execution of a prenuptial agreement.  These agreements operate as binding contracts which can then be enforced in many states.  Whether such a contract would have been enforceable in Mississippi, however, remains to be seen.

These and similar issues can be expected to surface more frequently as same-sex marriages become more common and, as such marriages inevitably fail.

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High Conflict Divorce Brings Down State Treasurer

Former Mich Treasurer Andy Dillon

This was certainly in the works since last summer.  Michigan Treasurer Andy Dillon resigned yesterday in the wake of continuing media scrutiny of his high-conflict divorce.

Dillon, a Democrat, was appointed as our state treasurer in 2011 by Republican Governor Rick Snyder. The appointment won Governor Snyder high praise for crossing party lines in the spirit of collaboration.

Too bad Dillon could not apply the same spirit of collaboration to his divorce dispute.  In August, after an alleged alcohol-fueled argument with his ex-wife at their former marital home in Redford, MI, the family court litigants filed competing petitions for personal protection orders.

The affidavits attached to those petitions do not paint a pretty picture of Dillon as a family man.  In the end, the Dillons' competing petitions wound-up in the lap of the Wayne County family court judge assigned to their divorce proceeding; the judge denied both petitions, opting for a mutual restraining order.

We here at the electronic divorce attorney prefer to handle divorce via the collaborative model.  This is where both parties consult their lawyers, a family therapist or counselor, and perhaps a financial advisor prior to filing a divorce proceeding.  The idea is to agree on all the issues after a thorough out-of-court vetting with professional input, sign an agreement that memorializes the understanding of the parties, and then file for divorce only when the entire matter is wrapped-up.

Unfortunately, the collaborative model does not work for all couples.  Had Andy Dillon been able to deploy this model, he may still be our state treasurer instead of resigning in disgrace.

If you or a family member would like to learn more about the collaborative divorce method, contact our law office for a free initial consultation.

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Triple Marriage & Double Divorce With Same Husband Confuses Paternity

Rare is the couple that marries, divorces, re-marries, gets divorced a second time, then re-marries for the third time.  Add a bouncing baby boy born somewhere between the second and third marriage, possibly sired by another man, and what do you have: a rare hot mess.

Rarer still is an appeal decided by a 3-judge panel of the Michigan Court of Appeals, with each judge writing separately.  In Sprenger v Bickle, the dismissal of a putative father's paternity and custody claim was affirmed through a lead opinion authored by the presiding judge, a concurring opinion bringing up alternative rationale, and a 14-page dissenting opinion.

The triple opinions demonstrate how judges hold significantly different views on the standing of a putative father to bring an action under the Paternity Act or under the new Revocation of Paternity Act.  The three opinions also demonstrate how courts struggle mightily with the factual curve-balls pitched to them by creative paternity litigants.

In this case, John Sprenger impregnated a married woman and, after the birth of his son, sued for paternity under the paternity act just prior to its legislative revocation.  Sprenger's on-again-off-again relationship with the boy's married mother, Emily Bickle, took place during a bizarre period in the mother's life when she twice divorced, then twice remarried her husband; the child was born in the woman's most recent married stint.

The majority upheld the family court ruling that the biological father lacked standing solely on the basis of mother's marital status and on grounds that neither the mother nor her husband challenged the boy's paternity to rebut the presumption of his legitimate birth.

In his dissenting opinion, Judge Mark Boonstra focused on the unusual marital and relationship statuses of the three parties, and conducts a tour-de-force on the legal concepts of standing and paternity.  Judge Boonstra correctly concludes that dismissal of Sprenger's claim should not be affirmed but rather, the case should be remanded to the family court for further discovery and an evidentiary hearing on:

• the precise date of conception; 
• whether Mother was "incapable of procreation" at that time; 
• what representations were made by the Bickles to the family court during their second divorce proceeding; and perhaps most significantly, 
• DNA paternity testing.

Since his first case was filed in the Benzie County Family Court under the old Paternity Act, Mr. Sprenger has re-filed the case under the new law, i.e. the Revocation of Paternity Act.  This case too was dismissed, much on the same grounds as his first case.  Not surprisingly, Sprenger has appealed that case too; he's not taking this sitting down.

A decision from the Court of Appeals on Sprenger's second case could come early next year.  Meanwhile, Sprenger has yet to parent his son.

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Student Loans and Divorce

There are two ways we have seen student loan debt affect divorce proceedings.  One scenario is where the divorcing spouse, usually a newly-minted professional, has accrued a significant debt balance well into the six-figures; as much as $200,000 in the case of a medical degree.

The other is where the student children of a divorcing couple have accrued the debt and one or both of the parents has co-signed on the loan.  These days, there are no job guarantees whatsoever for the graduates, regardless of their GPA or skill set.

When an engaged couple with student loan debt begins to plan for marriage, those plans often include addressing one or both partners' student loan debt.  If either spouse has significant debt, a prenuptial agreement should be considered.

A prenuptial agreement is a contract entered into by both partners, each with independent legal counsel and review, following a full-disclosure of all assets and liabilities.  This agreement is triggered by the death of either party or a divorce.

One of the primary considerations in a situation featuring significant student loan balances, is whether marital funds will be expended to pay back a student loan.  Another important factor for consideration is whether one spouse supports the other while a professional degree is earned during the marriage but also where that degree is financed through student loans.

A prenuptial agreement can address these issues.  Both existing and inchoate debts can be covered within the scope of the agreement.

In the other scenario arising with some frequency these days, a spouse co-signs a student loan for one of the couple's children.  If the student is unable to begin making payments after the grace period expires, the co-signing spouse becomes liable and it is a marital debt issue in the divorce.

Generally, the student loan debts of a couple's emancipated children are not marital debts within a divorce proceeding.  Only when a parent co-signs does this become problematic, especially when the co-signing parent is not the primary bread-winner.  Who pays back that debt if the student cannot?

Before a parent co-signs on a student loan, some thought should be given to the overall health of the marriage and whether it is wise to complicate the marital estate with such contingent liabilities.

If you are struggling with such issues, our law firm offers a free consultation that can provide you with some guidance with these tough decisions.

Side Note:  Here is a link to a post from the Law Blogger from last summer on a related student loan issue.

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Same-Sex Divorce Could Require Moving Out-of-State

When our SCOTUS recently struck-down the Clinton-era Defense of Marriage Act, and also held that California's prohibition on same-sex marriage was unconstitutional, proponents of same-sex marriage understandably hailed the decisions as a victory.  Now that the dust has began to settle in these seminal cases, some of the fall-out is going to affect the inevitable divorce proceedings arising from failed same-sex relationships.

The corollary to same-sex marriage, however, is same-sex divorce.  In some cases, when a same-sex couple is married in one of the dozen jurisdictions that recognize same-sex marriage, then moves to a state that does not recognize such nuptials, difficulties arise when the relationship fails.

This is because when you are a same-sex couple, you cannot just get divorced in a state that does not recognize same-sex marriage.  And most states that do recognize same-sex marriages require a minimum residency requirement from 6-months to a year.  Sometimes, moving to another state simply to get a divorce is not a viable option.

Once a same-sex couple splits-up without a divorce certificate, remarriage becomes a legal impossibility.  Bigamy is a crime in all states; you cannot be married to two persons at once.

This common problem highlights one of the major difficulties in the lag between states that recognize same-sex marriages and those that do not recognize such relationships.  Although the federal government must recognize same-sex marriages for purposes of benefits and entitlement  programs, it is state laws that control who is, and who is not, legally married.

Divorce, already a daunting prospect for both heterosexual and same-sex couples alike, is made more difficult without clear legal exit strategies.  Today, Wyoming is the only state that does not recognize same-sex marriages, but will allow a legally married same-sex couple to get divorced.

A pair of same-sex divorce cases in Texas, where the Texas Attorney General is opposing such divorce proceedings, are grinding through that state's appellate courts and could provide the opportunity for the SCOTUS to build on its ground-breaking decisions from last term.

But all that is a long-way off for same-sex couples whose relationships have failed.  The bottom line is that same-sex marriages are not treated the same as traditional couples; it will likely take generations for that to occur.

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On The Custody of Cryopreserved Embryos

By:  Timothy P. Flynn

Now here's a sticky one.  What does an unmarried couple do with their fertilized and cryopreserved embryos when they break-up?

That was the question of first impression posed to a panel of the Illinois Court of Appeal's Second Division in Jacob Szafranski vs Karla Dunston.  The in vitro fertilization case from Chicago involves the custody of frozen pre-embryos [female ova fertilized by male sperm] following dissolution of the progenitors' relationship.

In the spring of 2010, Ms. Dunston was being treated for cancer via chemotherapy, which jeopardized her fertility.  As a result, Dunston requested that Szafranski, with whom she was in a relationship, donate his sperm from which her ova could be fertilized.  He agreed and the IVF embryos were created and frozen.

Prior to this process, the couple executed the fertility center's standard "Informed Consent for Assisted Reproduction", and obtained [but did not execute] a separate "co-parent agreement" prepared by an attorney.  The former document acknowledged that the law regarding custody of the fertilized eggs is in flux; the latter document provided that Ms. Dunston would be granted custody of the eggs in the event the couple split-up.

Szafranski got cold feet right away and texted a break-up message to Dunston.  Not only were they through as a couple, he sued her for custody of the embryos in the Cook County Circuit Court claiming that he did not wish to be forced into fatherhood.  This draws her ire as well as a three-count counter claim seeking a declaratory judgment for sole custody and control over the embryos pursuant to the [unexecuted] co-parenting agreement contemplated by the parties.

The trial court judge awarded the fertilized eggs to girlfriend.  Boyfriend appealed the decision claiming his rights to privacy are implicated by any use of the embryos under the United States and the Illinois Constitutions.  He asserts that his privacy rights require his consent prior to any use of the embryos.

To reach its decision to reverse the trial court and remand the case for further evidentiary proceedings, the Illinois Court of Appeals first took a tour de force of our nation's common law regarding the three methods used to determine custody of cryopreserved embryos: the contractual approach; contemporaneous mutual consent; and the [always useful] balancing test.  In the end, the appellate court opted for the contractual approach when applicable and the balancing test in the absence of a contract.

Under the contractual approach, a majority of jurisdictions would honor and enforce the terms set forth in an assisted reproduction contract.  The mutual consent approach, on the other hand, provides for the possibility of one of the progenitors changing his or her mind regarding the ultimate use of the cells.  So far, only Iowa has adopted this method of embryo custody determination.

The balancing test approach is a hybrid, considering all the terms of the executed contract, if any, but also weighing the respective interests of the progenitors.

In this case, the appellate court wanted more information about the parties' intent and their agreement surrounding the IVF process that took place.  So the case has been remanded to the trial court for additional proceedings.  A careful read of this opinion has us thinking that the appellate court was looking for the assent of the parties, as expressed in a contract.

Who do you believe should have custody, possession and control over these frozen zygotes?  How do you think the courts in Illinois will ultimately decide this case?

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Grandparents Lack Standing When Parental Rights Are Terminated

By: Amanda Chapman

A recent 2-1 Michigan Court of Appeals decision published earlier this month, Porter v Hill, ruled that when a “natural” parent’s rights to their child are terminated, the grandparents rights are terminated along with the parents.  This ruling seems to conflict with the Child Custody Act.

The heart of this controversial ruling centers on the definition, or lack thereof, of “natural” parent vs “legal” parent.  At least for now, grandparents are out-of-luck, and this ruling will inflict some pain on select families.

In the Porter case, the bio-Mom and Dad were married with two children.  Mr. Porter’s parental rights to the children were involuntarily terminated as a result of physical abuse.  The parties were subsequently divorced.  Mr. Porter passed away, and his parents (the children’s paternal biological grandparents) then filed suit in Saginaw Circuit Court for grandparenting time with their grandchildren. 

Mother filed a motion for summary disposition, attempting to keep her ex-husband’s parents from establishing rights with her children.  Mother’s legal theory was that the grandparents did not have standing, or a legal cause of action under these facts. 

Mother’s dispositive motion asserted that when father’s parental rights were terminated that, in turn, meant that any rights grandparents may have had under the grandparenting provisions of the Child Custody Act had been severed as well.  The trial court reluctantly granted mother’s motion for summary disposition, openly acknowledging this case would be appealed to the Supreme Court. 

   

It is important to note that no determinations have been made, either in the trial court or the appellate court, as to the relative fitness of the Plaintiff-Grandparents, or whether granting grandparenting time would be in the best interests of the children.

A summary disposition motion is a dispositive motion that attempts to dismiss the case before it proceeds through discover and onward to trial.  The only question considered in this instance was whether the grandparents had a legal cause of action (otherwise known as “standing”) to bring the case in the first place.

Michigan’s Child Custody Act includes a section pertaining to grandparenting time which provides that

[a] child’s grandparent may seek a grandparenting time order under 1 or more of the following circumstances:…  (c) The child’s parent who is a child of the grandparents is deceased.

The statute defines “parent” as “the natural or adoptive parent of a child.”  “Grandparent” is defined as “a natural or adoptive parent of the child’s natural or adoptive parent.  

The Court of Appeals affirmed the family court’s decision, holding:

Russell was not a legal parent of the children…  Plaintiffs, as Russell’s parents, derived their rights as grandparents through him. 

The court further stated that

it would be anomalous for the Legislature to authorize a court to terminate a person’s parental rights based on abuse but then to somehow “revive” those rights for purposes of grandparent visitation.

Interestingly, Judge Mark Boonstra authored a dissenting opinion.  First, Judge Boonstra noted that:

[T]he Legislature’s use of the phrase natural parent and its affording to a grandparent of a right to seek grandparenting time independent of parental rights and notwithstanding parental desires…indicate both the plaintiffs …substantial interest in this case and that the statutory scheme at least implies that the Legislature intended to confer standing on the plaintiffs.

Next, Judge Boonstra pointed out that the statute:

permits a ‘natural parent’ of a ‘natural parent’ to seek grandparenting time…and there is no dispute here that plaintiffs were the ‘natural parents’ of Russell. The only question before us, therefore, is whether Russell was a ‘natural parent’ of the minor children.

The dissent further goes on to elucidate the fact that the Child Custody Act does not provide a definition for natural parent.  The words of a statute provide the most reliable indicator of the Legislature’s intent and should be interpreted on the basis of their ordinary meaning and context in which they are used.   An undefined statutory word must be accorded its plain and ordinary meaning…    

In Porter, the grandparents argued that natural parent should be interpreted as equivalent to biological parent.  The dissenting opinion supports this interpretation on the basis of the plain and ordinary meaning of the word “natural” according to the Random House Webster’s College Dictionary (1991) which defines it as “related by blood rather than by adoption.”  Further, the dissent goes on the use Black’s Law Dictionary (9^th ed) definition of “natural” as “relating to birth” as in a “natural child as distinguished from [an] adopted child.”

The majority opinion based their ruling on equating a natural parent to be the equivalent of a legal parent.   Yet, the dissent astutely pointed out that the basis of such a determination does not coincide with the plain and ordinary meaning of the word term “natural,” and in fact the term is much more in-line as being similar to plaintiffs’ proffered “biological” term.  The dissent contends that “natural parent must connote something more and different than simply having “legal” parental rights.”

Some local family law lawyers have opined that the majority of the Court of Appeals got this one dead wrong.  For now, however, the majority decision stands.

In its decision, the intermediate appellate court asks the Legislature to clarify their intended meaning of the term natural parent; let's not hold our breath.    

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Collaborative Divorce Software

Michelle Crosby of Wevorce

The collaborative divorce method is where a married couple, either by themselves or with the assistance of professionals, agree upon the terms of their divorce judgment prior to filing for divorce.  The theory is that, without the adversarial pressures of the family court and the "system" [i.e. Friend of the Court], these parties are free to explore and negotiate options that make sense for them, not the Court and the lawyers.

Professional assistance usually takes the form of divorce lawyers, counselors, church leaders, and now, specialized collaborative divorce software known as Wevorce.  This West Coast start-up was founded by Michelle Crosby, a product of the old-school divorce process.  Introducing her divorce tool product on the company website, Ms. Crosby tell us that her parents waged a 15-year war over her parenting time.

According to the ABA Journal, the "up-front" cost to purchase the software for a family is about $6500; many individual spouses would spend north of $5000 on divorce lawyers, each, depending on the case.

The idea behind the cloud-based software, not yet available here in Michigan, is to prompt the divorcing couple to "populate" their divorce documents with customized and customizable clauses on the usual divorce issues of child custody, support, parenting time and division of the marital estate, both assets and debts.  The philosophy embedded into the software is taken from the collaborative divorce process: discuss and negotiate prior to a formal divorce filing so that when the official pleadings are filed, it's already a "done deal", presumably with a signed settlement agreement or judgment of divorce.

While the price and the process sure is alluring, it is not for everyone.  Some couples will not be able to put their deep-seated differences aside to accommodate this software any more than they can sit through a series of marital counseling sessions.

It is nice, however, to have a collaborative model available to those couples that do not wish to spend the children's college savings on attorneys.  We shall see whether the Wevorce software ever becomes available here in Michigan.

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Medical Marijuana Parent Not Disqualified for Custody

Like with the use of any other prescription medications, a parent who uses medical marijuana is not disqualified from custody in a family court according to the Michigan Attorney General.  If the pot-medicating  parent, however, exhibits behavior that is unreasonably dangerous to a minor child, the immunity provided by the Michigan Medical Marijuana Act [MMMA] may not be available.

Attorney General Bill Schuette was asked for an advisory opinion by State Senator Rick Jones (R-Grand Ledge) on the issue of whether the MMMA can be invoked by a parent who is the subject of a child protective proceeding, and what constitutes behavior creating an unreasonable danger for a minor child.

In a well-crafted 17-page opinion, the AG zeroed-in on the specific provision of the Act dealing with pot and  children, and noting the exception to that provision.  Section 4(c) of the MMA states:

A person shall not be denied custody or visitation of a minor for acting in accordance with this Act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

As for what type of pot-related behavior constitutes the creation of such an unreasonable danger, the Act does not say.  According to the Attorney General, an individual assessment would need to take the specific circumstances of the parent and child into account.  Certainly, things like substance abuse and addiction are legitimate inquiries relative to a juvenile protective or custody proceeding.  The MMA will not provide immunity in a family court from taking such things into account.

AG Schuette opined, "the medical use of marihuana alone does not create an unreasonable danger to a child."   Schuette cautioned in the opinion, however, that if a parent's use of marijuana negatively impacts that parent's ability to properly care for a child, it could be part of the overall custody assessment.

Germane to a custody investigation is whether the parent, while high, is sufficiently functional and thus capable of parenting a minor; the child's age is an important factor; whether, once high, the parent can drive the child to safety if an emergency arises; and does the child have asthma that could be affected by second-hand marijuana smoke.

These are a few of the concerns we conjured up over here at the electronic divorce lawyer.  The best course of action, we think, is not to get high, or  take other mood altering substances, around your children.

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Sex Change Does Not Invalidate Divorce

Of course, this case comes to us from Ann Arbor.  Last month, the Court of Appeals decided a divorce case involving gender reassignment in a published decision.

In the case of In re Estate of Burnett, a couple had been married when Husband underwent gender reassignment surgery and became a woman in 2003.  His Wife, who had apparently supported the M-T-F gender change, subsequently became incapacitated.  Her children obtained a guardianship and conservatorship over their mother due to her dementia and filed for divorce on her behalf.

Doing some forum shopping, Wife's children, as her guardians, first tried to file the divorce proceeding in Pennsylvania but they were rebuffed.  Although the couple was married in Ann Arbor in the mid-1980s, they had lived in Philadelphia until Wife returned to her daughter's home in Washtenaw County back in 2006.

Defendant-Husband argued before the Washtenaw Family Court that his gender reassignment rendered the marriage invalid as between a same-sex couple; Michigan outlawed same-sex marriages in 2004 by an amendment to our constitution.  Husband also tried to get the divorce proceeding thrown-out on the grounds that a fiduciary could not file for divorce on behalf of a ward.

The family court judge denied both motions for summary disposition, ruling that the couple had entered into a valid marriage contract back in the 1980s, not a same-sex marriage contract.  The Court of Appeals upheld the decision, stating:

We likewise reject Defendant's argument that his alleged post-operative status somehow magically dissolves what was otherwise a valid marriage.

Nor did the Court of Appeals see grounds for an annulment of the Burnett marriage.  Simply, Husband, even though now a woman through surgery, is out of luck.

In the meantime, Wife has since passed away so the case now has merely symbolic and precedential value.  Even if the United States Supreme Court were to recognize same-sex marriages this spring as a component to our constitutional rights to privacy and liberty, the result in this case would be the same.  As noted by the Court of Appeals, the unilateral acts of one spouse cannot render a valid marriage invalid.

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QDRO Specialist A Necessity in Divorce Judgments

When a couple divorces with retirement assets, a special order is needed to divide those assets known as a Qualified Domestic Relations Order or QDRO.  Every employer's plan is different and has distinct and specific requirements for the QDRO.

These specifics have given rise to the cottage industry of the QDRO speacialist: a lawyer that is hired at the time of entry of the judgment of divorce for the sole purpose of drafting the QDRO.

Last month, the Michigan Court of Appeals decided Williams v Estate of Williams, a case involving a very old divorce judgment that affected the retirement benefits of a deceased Ford Motor Company employee.  The Wayne County Family Court attempted to go back over a decade into the past to correct what it perceived as a mistake in the division of the employee's pension, but the Court of Appeals reversed the trial court.

When the employee, the participant, finally retired after 39-years at Ford, the alternate payee on the plan, i.e. the ex-wife, began receiving her portion of the pension.  The ex-wife was designated as the "surviving spouse" in the QDRO, and began receiving the entire amount of the pension despite the fact she never intended on that result.

The judgment and subsequently entered QDRO awarded 100% of the decedent's pension to his ex-wife after the participant's death. If the QDRO had been drafted in accord with the default judgment, the alternate payee's share should have been the same as it was when the participant first entered into "pay status" upon his retirement.

The case is instructive on several fronts:

• The parties to a divorce should hire a specialist to draft any necessary QDROs; 
• Be sure that the language of the QDRO and the judgment of divorce are consistent; 
• If the plan administrator corresponds to the parties through the specialist, do not ignore this correspondence as it could spell doom years, even decades later; 
• Do not attempt to draft a "do-it-yourself" QDRO; and 
• Be careful not to "incorporate" the QDRO into the judgment itself because this will limit your options to correct the problem years later, which is what happened in the Williams case.

Often, when a divorce proceeding is grinding down toward a settlement, the parties take their focus off the specific language of a QDRO.  This is most often a mistake, as the division of the retirement assets is one of the most important aspects of the divorce.

Take care to follow-through with your attorney to accomplish this task.

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Divorce Judgments & International Child Abduction

Divorce lawyers will be adding additional required language to their judgments of divorce and parenting time provisions dealing with removing minor children to certain countries.

Recent Michigan legislation enacted on January 9, 2013, requires that parenting time provisions, most often found in judgments of divorce when minor children are involved and legal documents required in resolving custody disputes, must contain additional language addressing the prohibition on exercising parenting time in a country that is not in accord with the Hague Convention on the Civil Aspects of International Child Abduction.

The legislation, Public Act 600 of 2012, amends the Child Custody Act, MCL 7.22.27a, and requires the inclusion of specific proscriptions or a written consent by both parents, relative to removing the minor children to a country that has not signed the Hague Convention.   

Divorce attorneys must ensure that their judgments and parenting time documents now contain the required language.  The new required language is a simple addition and addresses a very important, and often overlooked, issue when it comes to parenting time taking place in another country.

We here at the Electronic Divorce Attorney recommend clicking on the following link to obtain more specific language about the Hague’sChild Abduction Section.  For information regarding the signatory countries to the Hague Convention on Civil Aspects of International Child Abduction, check out the State Department website.

If you are handling your divorce or custody case without a lawyer, the State Court Administrative Office (SCAO) website has updated Michigan forms (FOC 67 and FOC 89) that include the newly required language. 

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Divorce Parties

It doesn't have to be all bad.  According to an article in today's Freep, divorce parties are on the rise, thanks, of course, to the celebrities that have started throwing such events.

Take Detroit's Jack White, for example.  He celebrated his sixth wedding anniversary and his divorce to model Karen Elson.  The lesson here is that, if you can manage it, stay friendly with your ex-spouse.

Once upon a time, our law firm even considered chartering a yacht for a moonlight cruise on the Detroit River for our divorce clientele.  For a variety of reasons, it never happened.  Bet we could have filled-up the yacht though.

Then there's the web site.  Divorce Party Supply invites you to send them your crazy divorce pics to include in their [still under development] photo gallery.  I think I'll pass.

Adopting a positive attitude to cope with one of life's more negative experiences is a good thing.  Staying positive in the aftermath of divorce will get you into the next phase of your life sooner.

The trick is to learn from your mistakes and move on.  And try not to repeat the same mistake twice.

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The Intersection of Family and Criminal Law

Oscar Pistorius faces a judge at a bail hearing.

We have only to look to the recent and utterly tragic Oscar Pistorius premeditated murder case to know that sometimes our emotions get the best of us when it comes to love and romance.  While we are in no way convicting Mr. Pistorius before his day in court, it is simply a very sad reminder that domestic violence exists in more homes than anyone cares to admit.

Particularly in these trying times, the highly emotional process of divorce has a tendency to bring out the worst in the best among us.  We are all human; thus imperfect.

Divorce is unpleasant for everyone involved even on a good day.  Unfortunately, family law matters have the potential to devolve into a criminal case.

Professionals in the family law community must be vigilant in observing and recognizing signs of potential domestic abuse situations.  When signs of abuse are manifest, there is an opportunity to connect the potential victim to local resources to defuse a difficult and potentially dangerous situation.  The best results occur when an inchoate threat is avoided by proper counseling, resource sharing, and planning.

For the family law bar, it is also important to counsel clients to “keep their cool” while undergoing the tumult of a divorce.  At times clients feel like they can garner a tactical advantage by reporting a spouse’s behavior to law enforcement.  Sometimes this occurs in the heat of a custody battle; one parent thinks that repeated Child Protective Service calls will help them get an evidentiary “leg up”.

Or a spouse elects to manufacture an incident that gets reported to the local police in order to have the other parent removed from the household; buttons are pushed until a physical incident occurs.

These are not valid child custody coping mechanisms.  A good family law attorney that has her client’s best interests in mind will vigorously counsel against such tactics.  Not only do contrived allegations hurt the parties, but they waste precious resources and take the focus away from those who really need the help.  

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Sophisticated Cohabitation May Not Result in Child Custody

Dr. Jonathan Sporn & Leann Leutner

This is a sad tale, yet a sign of our times.  The case illustrates how, despite the oft-progressive status of our modern family laws, and the family law bar, there remains a stubborn bias in the family court that favors the bloodlines of a traditional family unit.

In New York City, Pfizer executive Dr. Jonathan Sporn (54), a divorced man, was in a committed relationship with Ms. Leann Leutner (40), also divorced.  A couple since 2010, the two were inseparable and intent upon starting a family.

According to a petition Dr. Sporn filed in the New York State Supreme Court in Manhattan, the couple resorted to in vitro fertilization following difficulty conceiving; they met with success by using donated sperm for fertilization.  Their baby, Lincoln Sporn, was born last July.

The family law dispute arose, however, when Ms. Leutner, a New York City lawyer and Yale Law grad, retreated to an apartment in New Jersey following an acute bout with postpartum depression.  She discharged herself early from the Mount Sinai Hospital, where she underwent psychiatric treatment, and committed suicide on New Year's Day by jumping to her death from the 14th floor apartment.

Dr. Sporn's custody petition alleges that Ms. Leutner, long-afflicted with mental illness, had stopped taking her prescribed Prozac at the time she was beset with acute postpartum depression.  Ms. Leutner also made prior unsuccessful attempts to take her own life according to the custody petition.

This grim Manhattan custody battle now pits Dr. Sporn against Ms. Leutner's sister from Illinois, who is also seeking custody of Lincoln.  At present, the infant has been placed into foster care somewhere in Gotham in accord with the applicable statute which characterizes the parent-less child as: "destitute".

Like every same-sex couple that splits-up, Dr. Sporn occupies the same position as the partner that lacks any biological connection to the child.  Without that connection, traditional family law says, "you lose" in the inevitable custody war following the split.

Next month, Justice Laura Drager must decide which custodial environment is better for infant Lincoln: the Upper West Side with "Dad", as Dr. Sporn refers to himself, or in Illinois with Lincoln's aunt.  The case is expected to be remanded by the appellate court to the family court for an evidentiary hearing; meanwhile, months will grind by and the infant will become a toddler while in the foster care of strangers.

We here at the Law Blogger wonder, if the aunt was not contesting Dr. Sporn's custody petition, whether he would nevertheless be engaged with a custody battle with the New Jersey Child Protective Services. 

Also, is the aunt's claim thwarting a potential adoption bid for Dr. Sporn?  If so, what a shame.

The case has been tagged here at this Blog, and we will report the outcome.  Let's see just how progressive our family courts can be...