Monday, September 28, 2015

Completing Divorce in One Year

In 2003, the Michigan Supreme Court issued an administrative order requiring all county family court judges to complete divorces within a year of their filing. Since that time, county family court judges have struggled to comply.

Under the Supreme Court's administrative rule, a family court must submit numbers of filed and completed cases to the State Court Administrative Office. All cases listed on the docket that were not, or are not going to be completed within the year must be accompanied by an explanation from the judge.

An elected sitting family court judge does not want to be explaining her slow-moving family court docket to state court administrators. This would only risk getting on the Michigan Supreme Court's radar.

Earlier this month, a Wayne County Family Court judge had the misfortune of lagging in this regard so badly that a formal complaint was filed with the Judicial Tenure Commission. Apparently, this judge developed a very "fast-and-loose" procedure whereby he would take brief testimony as to the breakdown of the marriage, or even accept the representations from counsel if the parties were not present, in order to count the case among those "resolved" when it came time to report his numbers to the SCAO each month.

Another tactic adopted by this judge back in 2010 was to dismiss the case from his docket, but then allow the lawyers to continue to work on the case. This way, the judge's numbers could stay off the Supreme Court's radar.

The ploy did not work, however, resulting in this Supreme Court order of rebuke. That did not prevent the good judge from developing other tactics to stay abreast of his administrative requirements.

All this has led us to question the wisdom of requiring divorces to be completed within one year. In most cases this is sufficient time to start, negotiate and complete a case.

Not all cases, however, fit the typical pattern. In some cases, there is the obstructionism, recalcitrance, and obstinance of one or both parties. There is also the lawyers’ and the judge’s agendas.

Complex high-value marital estates, for example, often require extra time to evaluate businesses, or assess stock grant contracts or non-qualified compensation packages. In other cases, custody disputes need extra time to sort out an acceptable resolution in the best interests of the minor children.

We suspect in such instances, a judge could avail herself of a reasonable explanation that would be acceptable to the case-counters.

Not all counties lend themselves to complete every case on the docket in a year. In Wayne County, for example, there may be a higher per-judge caseload then in some out-county family courts that have less population and thus, fewer cases filed.

Attempting to deceive the Supreme Court is never the way to go. Despite a docket backlog, the public and the judiciary should be able to expect that every judge in every county will use their best efforts to keep the cases on their docket on track and will see them through to timely completion.

This is just how the system is designed to work. Parties to a divorce do not wish to prolong their agony.

If you are experiencing a divorce that is going to drag out longer than one year, consider contacting our law firm for a free consultation so that your option of making a change of counsel can be assessed.

Friday, September 25, 2015

False Child Abuse and Neglect Complaints

Sometimes, co-parents take an overly aggressive approach to reporting perceived wrongs to their county Child Protective Services. If this becomes a habit, there are steps the target parent can take to protect their custody position in a high-conflict family court proceeding.

First, making a false claim of abuse or neglect is a felony. The target parent should contact local law enforcement to see whether a case can be charged.

Second, if a series of false or unfounded reports is made to CPS, ask the case worker to report this conduct to the Friend of the Court. This could result in a warning being issued or a modification of custody.

Third, the Court of Appeals has recognized that a co-parent that lodges false reports of abuse or neglect negatively impacts their own custody chances. The Court of Appeals has directed family courts to take this into account when making a custody determination in a high-conflict case.

The purpose behind these measures is not to punish the offending parent but rather, to advance the best interests of the minor children who are often in the middle of such disputes. When a CPS complaint is lodged, regardless of merit, interviews with the minor children are triggered as well as visits to the children's school and the parents' homes.

When a series of baseless claims are made, these interviews and visits become onerous and offensive. The offending parent need to be shut down.

If you are the target of false claims of child abuse or neglect, contact our law firm in order to discuss your options at a free consultation.

Friday, September 4, 2015

Family Court Judge Refuses Divorce

Chancellor Jeffrey Atherton
Sometimes, a judge is just looking for some cheap professional attention. That's what we suspect occurred this week when a Tennessee family court judge cited the SCOTUS marriage equality decision, among other reasons, as the stated basis for denying an elderly couple's divorce.

After hearing from 7 witnesses and considering dozens of exhibits over 4-days, Hamilton County Chancellor Jeffrey Atherton refused to grant the divorce sought by the litigants. And now, perhaps by the Chancellor's design, here comes his 15-minutes of ill-conceived fame.

In denying the requested relief upon completion of the proofs, the Chancellor stated that because of the SCOTUS decision in Obergefell v Hodges, the Supreme Court now needed to clarify, "when a marriage is no longer a marriage." The judge's reasoning is flawed to the extent that whatever our High Court has defined as a fundamental right within the context of marriage has nothing relevant to do with a state law divorce proceeding.

Chancellor Atherton further concluded that because the SCOTUS has deemed Tennesseans incompetent to define the central institution of marriage, he is somehow judicially hamstrung on the performance of his sworn duties. Those duties would include presiding over and resolving a contested divorce proceeding through a judgment.

What the...?  Is this guy trying to match wits with Kim Davis over in Kentucky?

Divorce proceedings rarely go to trial. When they do, one of the findings a family court judge is required to make is that the objects of matrimony have been destroyed such that there is no reasonable likelihood the marriage can be repaired; the ole "irreconcilable differences".

To properly conduct a divorce trial, the family court judge then needs to make factual findings in the case -usually about the parties' property in a case like this, without children- as well as make other legal decisions, i.e. whether alimony is appropriate. Then, the judge must issue a judgment of divorce setting forth the decisions of the court.

In this case, after 4-days of testimony, Chancellor Atherton concluded the marriage could be salvaged and hoped the couple reconciled. It appears to us, however, that this couple has become victim to the judge's personal desire to grab headlines by stating his political differences with the Obergefell marriage equality decision.

Divorce is difficult enough for couples without this form of petulant judicial grandstanding. We will continue to monitor this case in order to see what "work around" is utilized to correct this judge's harmful error.

In blogging about the marriage equality civil rights movement over the past decade, we predicted that, if the SCOTUS established a fundamental right to marriage, as it did, there would be plenty of instances where people in positions of power, like this  county judge in Tennessee and like the court clerk in Kentucky, simply refuse to obey the law of the land.