Wednesday, October 23, 2013

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.

Tuesday, October 22, 2013

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.

Saturday, October 12, 2013

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.