Friday, September 26, 2014

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.

Sunday, September 21, 2014

Family Pressure: When the Pot Boils Over

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. 

Friday, September 12, 2014

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.