Unfounded CPS Complaints Lead to Loss of Custody

We have seen this movie at our law firm on a few occasions.  A maladjusted parent attempts to enlist the machinery of the state in a bid to gain custody by making false or trumped-up allegations of abuse against the other spouse or co-parent.

Earlier this week, the Michigan Court of Appeals affirmed a St. Clair County Family Court judgment that awarded Father sole legal custody and limited Mother's parenting schedule to minimal supervised sessions largely on the basis of Mother's series of unsupported allegations of abuse and neglect made to CPS.

These unfounded allegations of abuse and neglect, combined with Mother's overall campaign of alienation against Father, left Mother with only two hours of supervised parenting time.  While it appears she brought this on by her own actions, we never like to see a parent stuck with such limited parenting time.

In this case, however, Mother was her own worst enemy.  The trial testimony not only featured credible evidence of parental alienation and unfounded CPS complaints, Mother also subjected the children to multiple forensic interviews, while she violated the family court's temporary parenting orders; a recipe for disaster to be sure.

Additionally, to make matters even worse for the children, Mother assaulted Father on several occasions, sometimes in front of these poor children.  As a result, the older child now has issues of his own and Mother is "overwhelmed" by her son's issues.

From a professional perspective, we note here at our law firm that the trial court's decision was deemed to be well-reasoned and supported by applicable authority.  With regard to the appellant-Mother's challenge to her limited parenting time, the Court of Appeals stated:

Other than to argue that she was justified in reporting the issues to CPS and that she loved and cared for the children, defendant has done little by way of argument to demonstrate that the trial court erred in determining parenting time.  Trial evidence supported the factors mitigating against greater parenting time, and the trial court’s findings with respect to parenting time were not against the great weight of the evidence.  Importantly, defendant has not been removed from the children’s lives as she has weekly parenting time, and the trial court’s order –as it must- left open the possibility that she can be granted more time in the future.

So the Mother in this unfortunate case will need to earn herself a spot back into the lives of her children.  Thus, she would be well-advised to start playing by the rules: i.e. following the court orders issued in her divorce case.

The simple lesson here is, even when your adult relationship has deteriorated to the point of divorce, you must make every attempt to co-parent with the person with whom you procreated for the sake of the children.

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Senate Bill Prevents Lawyers From Soliciting in Newly Filed Divorces

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce.

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate has taken action with SB 981, a bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 14-days after that person is officially served with the divorce papers.

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose.

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole.

At hearings before the Senate Judiciary Committee last month, lawyers opposing the measure indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  Opponents of the bill also point out First Amendment considerations and argue that family law is a complex industry in which advertising is necessarily involved.

The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that no empirical data was presented in support of such a procedural rule change.

When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret.  We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk's court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper.

Unfortunately, it must be noted that our state legislature sometimes does find it necessary to regulate the practice of law in Michigan via criminal statutes.  For example, ambulance chasing in personal injury cases is prohibited for 30-days after the date of the accident.

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 981, as proposed, may suffer from constitutional defects.  First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message.  Also, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

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Active Military Duty Mom Loses Custody via Court of Appeals

Here is a tough choice: to serve your country through military service, or to continue being the primary care provider for your preschooler.  That is the decision a Wayne County mother had to make recently as she contemplated her options in family court.

In 2007, the Child Custody Act was amended by our state legislature to protect active military parents.  The amendment to the statute states in relevant part:

If a motion for a change of custody is filed during the time a parent is on active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

In the Wayne County case, father filed a motion to change custody in response to mother's intent to change her domicile to another state; the state where she would eventually begin her deployment with the U.S. Army.

Hearings were conducted in the Wayne County Family Court which resulted in the family court judge ruling that father should have "temporary physical placement"; a new phrase in our custody parlance.  Apparently, the Court of Appeals agreed, finding in Kubicki v Sharpe that the dispute hinged on precisely when Mother's "active duty" commenced.

Does "active duty" mean: upon enlistment; upon commencement of basic training; or upon deployment?  The intermediate appellate court took a pass on deciding the meaning of this term in the Child Custody Act by ruling that father's custody motion was filed prior to mother's enlistment.

We here at this blog think it a shame that this decision was not made with better clarity.  An excellent opportunity was lost that could have provided some much needed certainty for those willing to serve our country through the military.

Clear as mud, the Court of Appeals took the opportunity to remand the case back to Detroit so that the family court judge could ascertain the child's reasonable preference.

Collateral note: the case is also instructive for language that the moral fitness of the parties, a custody factor in the Child Custody Act, does not include the moral fitness of one of the parties spouses, in this case, mother's husband who was recently convicted of domestic assault against the mother.

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Family Pressure: When the Pot Boils Over

By: Amanda Chapman

An interesting book was released earlier this summer, “Marriage Markets” by June Carbone and Naomi Cahn, which describes the state of marriage in our modern American society.  As a divorce lawyer, I found the book accurately reflects much of what I observe in my day-to-day profession.

The authors are both professors who teach family law courses. They grapple with the concept of marriage and how well (or not) it works for people of diverse socioeconomic backgrounds. 

With the divorce rate of almost 50%, approximately half of American kids are born into single-parent homes; or homes that become single-parent.  Marriage, an institution that protects and fosters the growth, enrichment, and advancement of children, is becoming increasingly difficult to maintain for many Americans. 

What I find especially interesting in this book is the way the authors compare the state of marriage to the realm of family law; specifically the ways in which the law has lagged behind the (de)volution of marriage in our society.

The authors draw the following conclusions about the state of marriage and our family laws today:

Marriage still works for the top-third of the wealthiest families as they typically delay having children until they secure lucrative careers.  Also, the wealthier couples are the only couples who have the financial resources to “fight” it out in court if they get a divorce.

More middle class couples are divorcing due to the fact that many good blue-collar jobs (for men) have simply vanished, while women have been able to obtain careers and can be self sustaining financially.  The authors assert that many middle-class women simply won’t put up with unhappy or abusive marriages today, as they may have done in the past when they did not have access to employment. 

But, for many middle class divorcing couples, protracted litigation during a divorce proceeding is simply too expensive.  Some women are worried about supporting husbands who have been out of work or who earn less than they do; the benefits of “taking it to the Judge” are minimal in their estimation.

Lower class families have the hardest time.  The authors contend that for parents on the lower rungs of the socio-economic ladder, family law is downright punitive; paternity suits that result in child support obligations that are rarely met and with mother’s trading access to the child for some form of financial support.

From my own professional experience, I agree with the authors of Marriage Markets.  Family law as we know it today requires some careful thought and consideration as to how we, as a society, can better protect the interests of the children born to single parent households.  The authors urge the reader to focus more on “the children whose lives are being shortchanged by growing societal inequity” and less on marriage itself. 

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The Economics of Child Support

DHS Director Maura Corrigan

The Michigan Auditor General gave a high grade to the arm of the state bureaucracy responsible for collecting and distributing child support.  In the two year audit period billions in child support dollars were collected and distributed with 99.9% accuracy according to the auditor.

Much of the credit for these good marks is attributable to the Office of Child Support, which is an arm of the Department of Human Services.  DHS is directed by former Michigan Supreme Court Justice Maura Corrigan, having been appointed by Governor Rick Snyder .

A quick story about Maura Corrigan.  When this blogger phased from a two-year stint with the Michigan Court of Appeals to one of Michigan's largest law firms in Detroit, one of the newly hired associates in the office just down the hall from mine was Maura Corrigan, transferred from the Detroit office of the U.S. Attorney.  Then former Governor John Engler appointed Corrigan to the Michigan Court of Appeals and the Michigan Supreme Court; she was re-elected in each position before being appointed DHS Director.

When she took over DHS, Corrigan was tasked with cleaning-up the rampant fraud that was draining cash and food assistance programs of their funds.  Under her leadership the Office of Child Support is an example of how a government bureaucracy is meant to function.

The recent audit -the second consecutive audit to give the Office of Child Support high marks- prompted Corrigan to make the following remarks:

I am proud of the work done by our Office of Child Support.  The audit confirms that we effectively collect and distribute child support dollars.  That means children have the support they need and deserve.  The $2.6 billion in child support received during the audit period is pumped into Michigan's economy and helps many families achieve financial independence rather than relying on public assistance - which saves taxpayers money.

No question, when child support is paid on time in the correct amount, the overall economy -an economy with every-other-household affected by divorce- gains.  The resources expended on child support enforcement are massive.

To assist child support payors with their monthly obligation, Michigan has contracted with a web portal service known as MiSDU that automates payments.

If you have questions as a recipient of child support, or as a child support payor, give us a call for a free consult; perhaps we can point you in the right direction.

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Digital Precautions in Preparation for Divorce

So you've decided to take that fateful step and file a complaint for divorce.  Prior to doing so, consider these tips, mostly taken from USA Today reporter Kim Kommando's article reprinted in the Freep.

1.  Change Passwords.  Although this seems intuitive, the Freep article points-out that 67% of couples share their passwords on at least one account.  The problem with this that once you begin sharing that password, it is difficult to become disentangled when things go south.

So review your digital estate and, on a device that is not shared with your spouse, change all of your passwords to a strong unique password, using at least one capital letter a symbol, and a combination of letters and numerals.  As pointed out by Ms. Kommando, avoid any combination with which your partner may be accustomed.

2.  Terminate Shared Profiles.  While cute when you're together as a couple, there is nothing more humiliating, even devastating, than having a joint platform which your spouse can co-opt as a soapbox, from which to trash you to your common electronic social circles.  Therefore, prior to making your divorce filing "official", be proactive in swiftly terminating such joint profiles.

3.  Sanitize the Hard Drive of a Shared Device.  Like social media accounts, many couples share computers, laptops, notebooks, tablets, even cell phones.  If this is the case, take a moment to wipe the drive clean after removing all of your key personal and financial data.  [Note: In many a divorces, such shared devices often "disappear".]

4.  Password Protect Your Own Devices.  Do not leave things to chance.  Many divorces cases begin with information one spouse acquired by browsing onto and into the other spouse's non-password-protected device.  If you are serious about filing for divorce, do not allow your spouse the up-front advantage of downloading all of your personal and private data stored on your cell phone, laptop, or tablet.  Call-logs alone can provide a wealth of information that you may not want in the hands of your spouse, or your spouse's divorce professionals.

5.  Curtail Your Social Media Activity.  In the past few months alone, I cannot believe how often we have experienced instances of a divorcing spouse leaving a trail of incriminating evidence on social media sites that are wide-open to the public.  Regardless of the fine-tuning available on the privacy settings of a user's electronic profile, we advise our at-risk divorce clients to simply reduce their presence on social media altogether while going through a divorce.  Easy, simple, problem solved.

If you take these five simple precautions prior to filing for divorce, you will be doing yourself a huge digital favor.  Good luck, its an electronic jungle out there.

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Family Court Judge Did Not Violate Teenager's Constitutional Rights Excluding Her From Parents' Custody Hearing

By:  Timothy P. Flynn

This is a case with an important message from the Ohio Supreme Court.  Thus, while the In Re AG opinion, released yesterday, does not bind family courts here in Michigan, it is nevertheless instructive.

Since 2001, the teenager, A.G., grew up amid perpetual family court divorce proceedings in both Henry and Ottawa Counties in Northern Ohio.  At one point or other, each parent had custody of A.G.  During these various post-judgment custody battles, each  parent sought to sever all contact with A.G. by the other parent by taking the child out of state.  Pitched battles to be sure.

The entire mess came to a head in 2009 when a custody trial was scheduled to take place in Ottawa County Family Court.  Apparently, by that time, Father's parenting time was supervised; he was seeking unsupervised parenting time.  His then 13-year old daughter moved the family court to terminate all parenting time with her Father and for the right to attend the scheduled hearing to decide these issues.

The family court judge interviewed the teen in chambers in order to ascertain her "reasonable preference" regarding custody and parenting time, as we do here in the Michigan family courts.  But the judge denied the teenager's request to attend the trial.

A.G.'s appeal to Ohio's intermediate appellate court affirmed the family court judge's decision, as did the Ohio Supreme Court yesterday's opinion.  The Ohio High Court ruled that while a minor child has an interest in the ongoing divorce proceedings of her parents, she is not a party litigant with attendant rights to be present for all proceedings.

The Ohio Supreme Court also ruled that a family court judge has the discretion to exclude a minor child from the custody proceedings of her parents and that this exclusion does not violate the child's Due Process rights.

Over here at the electronic divorce attorney, we believe this is the correct decision.  One of our recent divorce trials lasted 10-days and featured the testimony of one of the parties' adult sons.

While a child may [rarely] be called as a witness to testify, they are sequestered from the proceedings.  There is no good reason for a minor child, however, to witness the mud and dirty laundry flung about the courtroom in an ugly divorce proceeding sponsored by her parents.

We hope the family court judges here in Michigan take note of this well reasoned opinion from the Ohio Supreme Court.

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Lawyers Should Not Interview Children in Custody Disputes

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares.  Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents' lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute.  According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody.  One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews.  The 3-judge appellate panel's opinion stated, "these interviews are meant to be confidential exchanges between the court and the child."

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule.  Forcing a child to state her preference in an interview with her parents' respective advocates is wrong in the worst kind of way.  No child should have to deal with his or her parents' lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil.  Here at this blog, we saw this case as a "no brainer".  Parental advocates should not be used to determine a child's reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.

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When Father is Relegated to the Weekend Parent

By: Timothy P. Flynn

A case that caught our attention from the Michigan Court of Appeals last month deserves mention in this blog.  The case comes from the St. Clair County's Family Court; the family court judge that ruled in Mother's favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.

In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child's week-on-week-off parenting schedule, allowing Mother to move with the child from Bay City to Troy.  The parenting schedule was modified so that Mother had the child during the school year and Father had evey-other-weekend.

In doing so, the family court judge was in part swayed by Mother's testimony that the move allowed her to be a "stay-at-home" mom due to her husband's new job.  The effect of the ruling was to relegate Father to a weekend parent.

Even though the move was not more than 100-miles [a statutory threshold], the family court held that it was significant because it involved a change in school districts for the child, and made the alternating weekly parenting schedule untenable.  The lower court concluded the proposed move was in the child's best interests, and Dad lost out.

In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear and convincing evidence]; and b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.

The burden of proof is significant in cases like this.  Mother's motion, if decided on a preponderance standard, is easier to establish and thus prevail.  If Mother had the heightened burden, the motion is more difficult to carry.

As for lying to the court about her job, that too should be taken into account.  On remand, however, the Court of Appeals noted that the lower court should also take into account the fact that the child was allowed to continue living with her Mother in Troy during the year this case took to decide on appeal.

Custody of our children, much like the possession of chattel, seems to be driven by the age-old principle: possession is nine tenths of the law.

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Uniform Collaborative Divorce Law Act Passes Michigan Senate

By:  Timothy P. Flynn

Readers of this blog will recognize our commitment to the collaborative divorce process.  Whenever possible, given the circumstances and personal dynamics of the parties, it usually is the best way to go in family court.

The collaborative divorce model is where a married couple meets with a team of family law professionals [case facilitator, family counselor, financial planner] before filing for divorce, hopefully resolving all issues in a signed settlement agreement.  The process is collaborative rather than adversarial.

Across Michigan and our nation, there is a steady and growing movement toward favoring the collaborative model; the adversarial process is being relegated to a last resort.

Over the past four years, the Uniform Collaborative Divorce Law has been sweeping across the state legislatures.  Recently, the Michigan Senate passed the model act, sending it along to the House Judiciary Committee.

Because the collaborative divorce model is so distinct from the adversarial process, the uniform law calls for standards and training for lawyers wanting to add collaborative divorce to their practice.  The bill calls for the State Court Administrative Office to develop the training and lawyer qualification standards called for in the model act.

For its part, the SCAO does not want to be tasked with training the lawyers and wonders how it will pay for training and enforcing the standards.  Unlike the other states that have passed the model act, Michigan would be the only state requiring training standards.

These standards come to us from the Alternative Dispute Resolution Committee of the State Bar of Michigan's Family Law Section.

What is wrong with some additional training for family law lawyers, especially in thrust of the collaborative divorce resolution process.  In our opinion, this is a good law which will hopefully pass through the House and become law.

Divorce needs more collaboration and less opposition.

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Divorce: There's An App For That Too

Were here at the electronic divorce attorney are not big fans of digitizing personal therapy in an app.  Or the divorce process for that matter.

Today's Freep touted the article Digital Divorce, profiling some nifty digital cell phone apps targeting couples going through a divorce.  Ever since a 20-something Minnesota lawyer created a cell phone app 5-years ago that calculates a parent's child support obligation, we've been seeing this kind of thing in droves.

The Freep's Katie Humphrey notes that there are hundreds of divorce-related apps; some of them even aid spouses with cheating hearts.  Go figure.

But just because its now available in an app, does not make the divorce process any easier.  Family law attorneys across Oakland County warn against substituting experience and professional skills with a self-help app designed by a techie with some minimal knowledge of divorce and family law issues.

Given the complexity of relationships and the divorce process, Ms. Humphrey rightly advises caution when relying on an apps for advice and information.  We also agree that most of the divorce-related apps, all with few reviews to offer market insight, are really just digital snake oil.

One of the apps featured in Humphrey's article, "The Grass is Greener" does seem to hold some value.  It is basically a marriage assessment tool, complete with a 39-question quiz spouses take to gain insight into the type of professionals they may need to hire in order to either: a) save their marriage, or; b) navigate the divorce process.

On balance, however, we are not worried that our lawyers will be replaced by apps anytime soon; no sooner than family court judges will be replaced by robots.

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Stepparent Adoption Complicated by Legal Custody Label

By: Amanda Chapman

About one year ago, the Michigan Court of Appeals recently gave us one more reason to care about legal custody when negotiating a divorce with minor children.  During the divorce process it is often difficult for those involved to consider the future and a possible remarriage down the road. 

If we are lucky, cupid strikes again, resulting in a second or third nuptials. Sometimes these marriages result in the progression toward stepparent adoption of their spouses’ children.  

The lesson learned by this recent Court of Appeals case, In re: AJR, Minor, is that an award of joint legal custody in a divorce judgment may result in a more complicated legal process down the road in the event that a stepparent wishes to adopt the child of their spouse.

In this case from Kent County Circuit Court, a father’s parental rights were terminated under the stepparent adoption statute [MCL710.51(6)] on the basis that father had failed to comply with a child support order and had neglected to visit his child during the previous two years. 

The Michigan Court of Appeals reversed the family court’s decision by determining that the stepparent adoption statute does not apply when the parents have joint legal custody.  It turns out that father was awarded joint legal custody of the child in the divorce judgment, thus having a say in the proposed adoption proceedings.  

Mother was awarded joint legal custody and sole physical custody, relative to the biological father. Mother then remarried and was hopeful that her new spouse could adopt her child.  The biological father refused to consent or agree to the termination of his parental rights in order to facilitate the stepparent adoption. 

When the Circuit Court granted the stepparent adoption, terminating father’s rights despite his previous award of joint legal custody, father's appeal was successful.  Our intermediate appellate court held that the statutory language of the stepparent adoption statute:

[i]s to be construed as requiring the parent initiating termination proceedings to be the only parent having custody…the rights of a parent who maintains joint legal custody are not properly terminated under [the statute].  [Emphasis and brackets supplied.]

Now, the case is being considered on further appeal by the Michigan Supreme Court; oral arguments took place last fall and a decision by the High Court could come at any moment.

The takeaway for parents who are going through a divorce with minor children is to make sure that your divorce decree addresses legal custody.  You never know what the future will bring, but it is folly to open the door for a possible parental rights termination proceeding in the event your former spouse remarries.

Post Script:  In June 2014, the Michigan Supreme Court affirmed the Court of Appeals ruling in this case thus, it is now more important than ever to take custody into account when negotiating a custody judgment in family court.  

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Conscious Uncoupling in Los Angeles

Gwyneth Paltrow: Recently
and Consciously Uncoupled.

Among some of the more enlightened Hollywood luminaries, it's not a divorce; it is a "conscious uncoupling".  This is the term veteran actress Gwyneth Paltrow used on her website this week to announce the split with Chris Martin, her rocker-husband of more than ten years.

This, er, somewhat New Age phrase is the kinder gentler term for divorce.  Pop-psychotherapist and author Katherine Woodward Thomas takes credit for coining the phrase.  In fact, Ms. Thomas claims that she purchased the URL for this catchy term immediately upon hearing it for the first time in a discussion about a friend's divorce.

The catch phrase sounds like a synonym for "collaborative divorce"; a commonly-used phrase in the modern divorce industry.  Apparently, the idea behind a conscious uncoupling is that the parties simply agree to part ways amicably, using child-friendly low-stress tools.  Precisely the idea behind a collaborative divorce.

The collaborative divorce process involves sitting down with a psychologist or marriage counselor, a collaborative lawyer, and perhaps a financial consultant  -not necessarily at the same time-  to identify and resolve issues prior to subjecting the family to the jurisdiction of a family court with its deadlines and powers over purse and person.

On the West Coast, there are a few pop-professionals making a buck from the process.  Ms. Thomas is among them, offering a 5-week "conscious uncoupling" course on the Internet for nearly $300.  When Ms. Paltrow's announcement, and now the "conscious uncoupling" phrase, went viral, she credited her own holistic doctor rather than Ms. Thomas; a lapse pointedly noted by the psychotherapist in the interview she gave to the NYT.

A low-stress divorce, by whatever name, is a worthy goal.  But buyers should beware before spending money on a web-based course taught by someone with a track record of failed relationships.

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Senate Bill Impugns Medical Marijuana for Custodial Parents

Over the five years since Michigan's Medical Marijuana Act was passed through voter initiative in November 2008, we've had many cases in family court where a parent's medical marijuana use was raised as an issue in the case.  Generally, family court judges do not shine to pot smoking parents.

Now, the Michigan Senate has taken-up the cause with a bill introduced by Senator Rick Jones, a former Sheriff from Eaton County.  The bill, enrolled in the Judiciary Committee, gives a family court judge the power to review a parent's pot use, even when sanctioned by a properly issued medical marijuana card.

If passed, Senate Bill 736 would provide that when a judge makes a finding that a card-carrying medical marijuana patient's use of pot interferes with that parent's ability, judgment, or skill to parent her child, then the judge could order any of the following remedies:

• Compel the patient to execute a release so the court could review the underlying medical condition on which the medical marijuana card is based, and allow the court to examine the relationship between the patient and the qualifying physician that endorsed the parent's pot use; 

• Compel the parent to submit to an independent medical examination to determine whether the parent's continued use of medical marijuana remains necessary or whether an alternative medication would be in the "parent's best interest"; [Wow]

• Enjoin the parent from the continued use of medical marijuana if, upon the court's review of the parent's medical records, it appears that continued use of medical marijuana is not in that parent's best interests; [also Wow]

• Allow the parent to continue her use of medical marijuana under the "qualified physician's directive", and under the continued review of the patient/parent's medical records for the duration of the custody case, "to determine whether there is reason for concern" that the parent's continued use of medical marijuana interferes with that parent's ability, judgment, or skill to parent the child; and 

• The ominous "catchall" of issuing, "any other order that the Court considers necessary that is otherwise within the authority of the court in the best interests of the child."

Putting a medicated parent under the microscope in family court is nothing new.  But this proposed legislation, which we here at this blog do not see passing, would drag the family court judge and the treating physician into the medical marijuana arena.

In the unlikely even that this bill passes into law, just sit back and watch the sparks fly...

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