Tuesday, June 25, 2013

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 (9th 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.    

Thursday, June 6, 2013

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.