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Military Divorces for Returning Soldiers

2012-01-13T04:22:00.000-08:00

As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest. Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart. To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming. The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues. A sense of independence may have seeped into the spouse's "mindset" that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier's deployment was for several years, a spouse may have developed an "interim relationship" which must now be dissolved if the marriage is going to survive. Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers' and Sailors' Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions. One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court. Interestingly, however, the statute is silent as to the scope of the appointed attorney's duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members. To calculate support, the servicemember's "leave and earnings statement" must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service. The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding. Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces. The ABA has prepared a "white paper" on the subject.

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Valid Prenuptial Agreements Require Full Asset Disclosure

2011-12-24T07:13:00.000-08:00

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts. Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties. This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.

The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court. The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children. The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge. In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable. The record
indicates that there was no formal disclosure of assets by either decedent or Waller at the time of
or before the execution of the prenuptial agreement, such as through the presentation or
exchange of written asset lists or through a verbal communication or declaration electronically
recorded so as to preserve proof of disclosure. The prenuptial agreement itself did not contain an itemization of assets and values, nor did it indicate that disclosure of assets had taken place.
Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and
decedent regarding the nature, extent, and value of each other’s assets prior to the execution of
the agreement. The probate court essentially found that Waller was sufficiently familiar with the
assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where the assets had already been effectively
“disclosed” to her simply through the evolution of their relationship in which familiarity with
each other’s property naturally occurred. We agree with the principle that if a party challenging
a prenuptial agreement was fully aware of the other party’s assets and their value at the time of
execution, an argument that there was a failure to fairly and formally disclose assets should fail;
the purpose of a disclosure is to make a party aware of what he or she may be giving up in
signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets. These are typically attached to the antenuptial agreement. This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

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Six Holiday Tips for Divorced Parents

2011-12-23T05:26:00.000-08:00

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households. Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.

Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

Reduce an alternating holiday schedule to a court order. It is always best for the children when the parents can agree on a schedule. Alternating holidays is most common when drafting the parenting schedule. When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other parent for the balance of the day; then the next year, they switch. This works for Thanksgiving, Christmas, New Year's Day and other holidays.
Discuss the schedule with the children. One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children. This way, the children know in advance what to expect. This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
Keep the activities simple. This tip is particularly essential when the children are relatively young and if the divorce is still fresh. The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents. Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
Let your child express her feelings to you. It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings. What the child once experienced as an intact family unit has been fractured by divorce. Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
Involve your extended family. The more love the child feels during the years immediately following a divorce, the better. Therefore, schedule some quality family time with members of your extended family. Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins. If your extended family is highly dysfunctional then, er, not-so-much.
Avoid including a new "significant other". This is the last thing you want to do at the holidays; not the time or the place. Including your "significant other" too soon is a selfish thing to do to your children. Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children. Children of divorce already struggle with guilt, a sense of loss, and insecurity. They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate. There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence. Be the adult, not the child.

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Preparing for a Second Marriage

2011-12-11T05:36:00.000-08:00

Many factors affect whether a second marriage will last: the relative age and incomes of the partners, whether either party has children, cohabitation prior to the second nuptials, and the education level of the parties.

And, of course, how could we forget the personality of the ex-spouse; perhaps the most important factor of all.

According to statistics published by the National Institute of Health, approximately 15% of second marriages end within 3-years; and 23% end within 5-years. Overall, however, the divorce rate for second marriages has drawn even with that of first marriages; about 40%. Also, in its 2009 report Marital Events of Americans, the Census Bureau claims first marriages last, on average, about as long as second marriages: about 8-years.

Here are some things to think about, and some steps to consider, before tying the knot for the second time.

Prenuptial Agreement.
For those with assets, this document is a must. To be enforceable, the prenuptial agreement largely depends on two things: a) full disclosure by both parties of all their respective assets; and b) legal representation of each party by separate lawyers. If your partner does not want to sign such an agreement, then you should seriously consider cohabitation rather than marriage. This is a harbinger of trouble in the event of a split.

Couples with only modest estates going into second marriages generally do not need the complication of a prenuptial agreement. If a marital estate grows during the second marriage, that estate will be subject to an equitable property division in the event of divorce.

Solid Estate Planning.
Prior to a second marriage, assets may be transferred into a trust for the benefit of the owner's children. Also, retirement asset rollovers (from a 401(k) plan into an IRA, for example) can operate to protect the new spouse with survivor benefits, or not, as the case may be.

A Qualified Terminable Interest Property trust (QTIP) typically provides for interest income going to a surviving (second) spouse, with the principle going to the settlor's children from her first marriage upon the death of the second spouse.

Children from a prior marriage can also be provided for using an Irrevocable Life Insurance Trust. This way, the new spouse can be designated as the beneficiary on the person's retirement assets and the children are designated beneficiaries of the death benefit from the life insurance policy.

Another common practice is to create a separate trust to provide for the distribution of separate property to the children from the first marriages and to create a joint trust to provide for the distribution of the marital estate of the second marriage.
Good Premarital Counseling.
One of the best things a couple can do prior to tying the second knot is to participate in joint counseling. This should include religious counseling or premarital couples therapy, financial advice, and (separate) legal consultation. Once separate legal counsel is received, the couple can certainly compare notes in order to get on the same page.

Going into a second marriage with your eyes open improves the chances of a successful nuptials. When selecting an attorney to assist you with the necessary planning, find one that truly listens to your expressed wishes and pays close attention to the characteristics of your estate.

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High Income Child Support

2011-11-16T04:49:00.000-08:00

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs. Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners. Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support. Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth. This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support. Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households. These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"? Some of life's best lessons are learned with less, not more.

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Even Divorce Lawyers Cannot Afford a Divorce Attorney

2011-10-01T03:33:00.000-07:00

The following is a guest post from the LawDiva blog of Georgialee Lang, a Canadian lawyer turned "stay-at-home-Mom" from Vancouver, BC. Here is her recent post:

It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”.

The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors, lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

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Post-Divorce Nesting

2011-09-21T05:06:00.001-07:00

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting". This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".
The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting. It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement. Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not. Nesting would seem to be a viable option. Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement. Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn. In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work. It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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When Children Live with a Child Murderer Endorsed by the Family Court

2011-08-25T08:09:00.000-07:00

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA. The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past. His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home. This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment. She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together. He married Trisha Conlon, with whom he had two sons. Sadly yet predictably, the couple divorced in 2004. Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon. The brothers reunite during holidays and vacations. Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements. The distance between the two parents provided the necessary cover. Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests. She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker". On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

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Divorcee Rips Ex-Spouse on His Blog

2011-08-10T04:26:00.000-07:00

Boy, would I welcome the chance to write this appeal.

A family court judge in Bucks County, Pennsylvania has enjoined divorcee Anthony Morelli from operating his web site devoted to his ex-wife; thepsychoexwife.

Judge Diane Gibbons based her decision on grounds the Father's blog, which details his failed marriage, his tortuous divorce process, and its protracted custody battle, is harming his young children. In fact, the blog does a hatchet job on his ex.

Morelli says the blog is a forum where he can help others "minimize conflict" and connect to share stories. He would like us to think of his blog as a kumbaya community where divorced men can rip their ex-wives with impunity. Touching, for real.

His lawyers have appealed Judge Gibblons' injunction claiming it is an unconstitutional prior restraint in violation of Morelli's First Amendment right to free speech.

For her part, Morelli's ex-wife says their children know about the blog, which is a shame.

Since he started the blog back in 2007, it has attracted a robust readership of nearly 200,000 new followers per month. At one point, Morelli was earning money from third-party advertisements on the blog.

We'd love to cultivate that type of readership over here at the Law Blogger; figures that such a negative energy factory would do so well.

Prior restraint of free speech, however, is a serious problem in this case. Judges, even family court judges, cannot restrain our free speech. A blog is one of the most common contemporary media designed to amplify freedom of expression. If a blogger lacks taste and restraint, should a local judge act as a censor?

Judge Gibbons' injunction in the Morelli case will undoubtedly be reversed on appeal.

Do you think family court judges should be able to regulated the content of a party's speech in a high-conflict divorce proceeding? Where would you draw the line; threats? abusive commentary?

We would like to know what you think on this issue...

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Five Red Flags that Your Divorce Attorney is on the Wrong Road

2011-07-23T02:51:00.000-07:00

Divorce lawyers are expensive; far too expensive for what most families need in a divorce proceeding. If you are involved in a divorce, here are some warning signs to help you determine whether you are getting your money's worth for this important service.

1. Lack of Communication. A breakdown in communication is the number one cause of client dissatisfaction with their divorce attorney. If a lawyer does not return your call within a reasonable time, she is either too busy or does not care about your case.

We all know in this era of smart phones that our lawyers get our calls, emails, and text messages within minutes of pushing the send button. Has your lawyer provided a cell phone contact; do you have access to her staff? If not, then you are not a priority in their office.

2. Does not know your case. Any engaged lawyer will have several cases going at one time. Every family is different. But a good lawyer will be sharp enough to master the basic facts and dynamics of your family. The next time you have a status meeting with your lawyer, listen carefully to the lawyer to determine whether he speaks in general terms; or whether he has a specific plan that applies to the facts of your case; your family.

3. Excessive Billings. Do you get sticker shock each month when you examine your divorce attorney's invoice? More troubling: do you even get a monthly invoice? Although many lawyers will have you believe that family law is "rocket science", it is not. If you are being billed more than $250 per hour for non-court related tasks such as preparing "summaries", checklists, or budgets, you are getting fleeced.

One trick unethical lawyers employ is to bill your file at the end of the proceeding, after you cut your deal, and after they see what's available for their fees. Often in such cases, a premium is baked into the final fee. Get your fee agreement in writing at the beginning of the process and insist on monthly invoices. When you receive the invoices, open them immediately as you would any other bill and examine them for accuracy. If you do not agree with items on the invoice, call the lawyer to discuss it right away; it is more difficult to raise fee issues several months down the road.

4. Arrogant and Antagonistic. The "old-school" image of a classic lawyer is that she holds herself above everyone else; is smarter than everyone and not afraid to prove it over and over again. These lawyers carry themselves with a certian touch of, er, arrogance.

In the trenches of family law, however, the real trick is to find a reasonable solution to your specific issues that works for everyone, particularly if there are young children. Arrogance is not a trait that gets this done. Does your lawyer show condescension toward you or does he repeatedly become antagonistic toward opposing counsel? If so, this is a sign of weakness, not strength. You may want to consider changing counsel.

5. Too Many Excuses. If your divorce lawyer lacks candor, fire him immediately. Unless he can effectively communicate with you on time regarding your specific issues; unless she follows through and does what she says, delivering service in your case on time, you have a big problem.

We hope these tips help you identify whether you are on the right road with your divorce attorney. After all, your life is in their hands.

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Proposed Divorce Legislation Distinguishes Marital From Separate Property

2011-07-02T05:26:00.000-07:00

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding. This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise. Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property. The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases. Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar? First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations. Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer? The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

2011-06-26T05:43:00.000-07:00

Albany, New York. Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo. When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009. The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS. Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters. A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement. His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation. The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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Parental Divorce Reduction Act

2011-06-26T05:31:00.000-07:00

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act. The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics. This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee. For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period. The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Many divorcing couples do not have these issues. Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one. On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

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Fathers See Gains in County Family Courts

2011-06-22T04:42:00.000-07:00

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts? To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner. Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case. The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details. For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point. Physical custody, however, is a more contentious battlefield. The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment. Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time. One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents. Focusing on the parenting schedule rather than the custody label is the real trend at work here.

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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

2011-06-22T04:39:00.001-07:00

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day. One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court. Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint. Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system. By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney. The reasons for this are because the opposing party is not the state but rather, the mother of the children. Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt. Basic stuff.

Bottom line: pay your child support obligations.

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Biological Father Cannot Parent His Law School Love Child

2011-06-05T08:03:00.000-07:00

They were students at Cooley Law School in the late 1990s. She was married; he was from Buffalo, New York.

Their long-term adulterous affair eventually led to the birth of a child in 2002. Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state. For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast. The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state. Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad. All three parties sought summary disposition of the paternity issue. Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan. The case hinged on the definition of a child born "out of wedlock". The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution. In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance. She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court. Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation. Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved. For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity. The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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High Court Rules Religious Mom Can No Longer Homeschool

2011-04-21T06:32:00.000-07:00

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction. Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection. The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge. The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school. The child was ordered to progress into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic. In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child). His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments. The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl. Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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Does the MERS Corporation Own Your Home?

2011-03-12T07:39:00.000-08:00

The signs have been piling-up for more than a year now. Mortgage foreclosures have careened out-of-control.

The chief question in courts of law is: who owns the subject property, and can they prove it by producing a mortgage note? Increasingly, the respective answers are: “Don’t know” and “No.”

In 2010, the Arkansas Supreme Court ruled that MERS (Mortgage Electronic Registration Systems) Corporation was prohibited from filing foreclosures in that state.

A federal bankruptcy judge in Long Island ruled just last week that MERS could not act as the “agent” of the mortgage note owner. Judge Robert Grossman acknowledged in a case called In re: Agard, that MERS may be involved with up to 50% of all home foreclosures nationwide, and that his decision may negatively affect the mortgage industry (i.e. accelerate its demise), but his decision required that the process comply with federal and state bankruptcy laws.

Many MERS-held "notes" will either not materialize, or will not pass muster relative to the many networks of applicable legal standards.

The Iowa Attorney General recently announced progress, along with other state attorneys general, in conjunction with the newly established Consumer Financial Protection Bureau, to overhaul the process of how the nation’s largest banks conduct the foreclosure process. The group essentially is a nation-wide focus group of state law enforcement officers and bureaucrats tasked to generate a list of best-practices they can mold into national standards.

In Florida, attorney and foreclosure-giant, David Stern, under investigation by the Florida Attorney General, just announced that his law firm is suspending foreclosure operations.

In Utah last month, a local judge made national headlines by allowing a judgment debtor to rip-up his mortgage note in open court and literally walk away from his home, debt-free, because the lender could not prove ownership by producing a mortgage note.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

As the foreclosure meltdown has unfolded over the past 24-months, many mortgage lenders’ practices of cutting corners in the lending process, and making some rather huge mistakes, have come to light. This has had the effect of making it difficult, and in some cases impossible, to actually prove who owns a particular home.

The early challenges from county officials in the 1990s to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet. These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

All good things usually come to an end; sometimes a bitter end. Now, the judges in all the various courts are tipped off; and bankruptcy judge Grossman's decision may go federally viral.

Where will this all lead? Will the state attorneys general, through a new layer of bureaucracy, be able to arrest the process and introduce effective reform? Or will judges, case-by-case, reluctantly pull the threads that will undo our nation’s mortgage lending system?

Only time will tell, so stay tuned on this one.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative. Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

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State Bar Task Force Recommends Streamlining Courts System

2011-03-02T01:53:00.000-08:00

Barry Howard (left) and Edward Pappas.

The lawyers saw it coming long ago. With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect? Judicial reform.

At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009. The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.

Last week, the task force announced its findings and recommendations. The following are the more significant findings and recommendations of the task force:

Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs. This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others;
Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels. The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data;
The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence;
Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and
Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources. A familiar song among the state workers and teachers spread throughout the counties and across the nation.

The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system. There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.

Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case. Usually, in a few hours, the document show-up in your email.

Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse. As for the Wayne Circuit Court, however, not so much...

Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County. This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.

Electronic docket access differs widely from county to county. In Genesee, the docket entries of a case is displayed in fragmented screen images. If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text. A waste of paper, and definitely not user-friendly.

While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.

Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan. From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.

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Illinois Becomes 6th State to Recognize Same-Sex Civil Unions

2011-02-02T17:50:00.000-08:00

Like neighboring Iowa, Illinois just passed a same-sex civil union law; the 6th state in the union (plus D.C.) to do so. This law will likely be tested in court, as in other states passing such progressive legislation.

Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road. In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.

Invariably, there is a political price attached to this legislation. No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.

Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution. In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.

A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage. In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union. Many gay couples do not avail themselves of such status, rejecting the compromise.

On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.

Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation. Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.

In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.

As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.

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New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

2011-02-01T03:03:00.000-08:00

Custody issues are almost always best-decided by parents outside the courthouse. Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother. The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs. Father, on the other hand, petitioned the family court for an order that his daughter attend public school. The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts. The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents. Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style. His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional. Stay tuned per usual as we await the outcome of the case and report back to you.

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Adultery in the Marital Bed

2011-01-17T07:42:00.000-08:00

Always poor judgment, sometimes an adulterous liason makes it into the marital bed. If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT. The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books. Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson. That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony. The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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Michigan Supreme Court Affirms Father's Child Support Obligation Even When Parental Rights Terminated

2010-12-21T05:28:00.000-08:00

There has been some buzz among family law practitioners this week concerning the Michigan Supreme Court's decision in the DHS vs Beck case.

Earlier this year, we posted on the Michigan Court of Appeals decision that held a father, whose chronic drugging resulted in the complete neglect of his children and termination of his parental rights, nevertheless remained obligated to pay child support for his two children. The published Court of Appeals decision was just affirmed by the Michigan Supreme Court.

This case arose from the Oakland County Family Court; it was Judge Martha Anderson that initially terminated Mr. Beck's parental rights. Both parents had been abusing drugs so their two children were placed with grandparents. For her part, the mother got straight, and otherwise complied with a DHS parenting plan; she now has the children.

The Supreme Court's Beck decision is remarkable in that it is the first decision to be issued by the Court in the current term. Also, although the decision affirms the holding of the Court of Appeals, it does so on grounds different then those relied on by the intermediate appellate court.

The father in Beck did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children. On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments). Like the intermediate appellate court, the Supreme Court was not convinced, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court analyzed the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments. Michigan common law has long established a minor child's right to support from both parents. The appellate courts also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In affirming the Court of appeals, the Supreme Court not only separated parental "rights" enumerated in the juvenile code, from the duties set out in the Child Custody Act, it also held that parental rights contained in the Custody Act were distinct and thus independent from the duties created by that same Act.

Of note in the dicta of the Court of Appeal's decision was an express acknowledgment of the current "times of difficult financial circumstances." The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

This is the right decision. If getting high is more important to a father than parenting, the rest of us should not have to pick-up the slack for that father and supply public benefits for such a man's children. He should pay as well, even if he can no longer see his children.

Such are the choices we make in life.

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Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

2010-12-11T04:56:00.000-08:00

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright. That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.

Cameron produces the North Oakland Divorce Blog. This post is his original content; thanks Cam.

Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things.

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody.

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue.

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.

Cameron's email: goulding@camerongoulding.com

Bankrolling the Divorce Settlement

2010-12-07T02:57:00.000-08:00

We've all heard about lenders that specialize in loaning to personal injury plaintiffs in advance of their settlement. These firms front the money to the plaintiff, at a significant discount from the amount expected to be realized in the ultimate settlement.

This same princple is being applied to divorce judgments. Get your money now and your divorce later.

Mind you, this is not for folks with middle-class marital estates. Rather, this brand new industry is developing on the left and now the right coasts for married couples that have estates north of 2 or 3 million.

For example, Balance Point Divorce Funding of Beverly Hills, CA was started last year by an attorney, Stacey Napp, with funds she obtained from her own divorce.

In New York City, it looks like it's going to be Churchill Divorce Finance; a firm gearing-up for a mid-winter opening with the promise of, "leveling the legal playing field."

Each of these lending firms will specialize in lending money to parties involved in divorce who are expecting to walk away from court with a fair amount of hard cash; millions in fact. Hard to believe here in Michigan, but those folks are out there.

One advantage of such firms is the ability for a "non-earning" spouse to obtain money in order to pay lawyers and forensic accountants to go after hidden assets, or "cooked" books in the family-owned business.

For others, it's simply an opportunity to get the money now in order to fuel that new, post-divorce lifestyle. In many cases, a little money up front goes a long long way.

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Overreaching, Post-Divorce Style: Michael Douglas' Ex Demonstrates "Greed is Good"

2010-11-17T04:54:00.000-08:00

Michael Douglas divorced his ex-wife, Diandra, in California back at the turn of the century. She reportedly received $45 million as well as rights to half Douglas' earnings from the "spinoffs" of his completed movie work.

Demonstrating the chief principle from Douglas' hit movie Wall Street, that "greed is good", Diandra filed suit in Manhattan last summer seeking half the actor's royalties from the reprise of Douglas' character, Gordon Geckko. A Manhattan Supreme Court Judge dismissed the case on procedural grounds, finding that venue was improperly laid.

The judge got it right. Diandra's rights to Douglas' earnings would come from the terms of their divorce decree rather than a separate cause of action filed in another state.

Here at the Law Blogger, we have to wonder why Diandre's attorney advised her to file in Gotham rather than California. The reason stated in the pleadings was that both parties currently reside in New York.

Procedural defects aside, Douglas' lawyer asserted that Diandre was not entitled to any of Douglas' earnings from his new movie to the extent they are derived from a "sequel" to the original movie and thus does not qualify as a "spinoff", as referenced in the divorce judgment.

Sequel vs Spinoff? Sounds like Diandre's lawyers have twice let her down...

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Macomb Woman Obtains Divorce from the Grave

2010-11-11T13:35:00.000-08:00

In a recent case originating from Macomb County, the Michigan Supreme Court held that a woman, scorned by her long-time but absentee husband, could effectively divorce him from her grave. The case, Tkachik v Mandeville, reversed the Court of Appeals' decision that ruled she could not do so.

In this case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. At the time she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their marital properties. In the resulting probate court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The sister was granted summary disposition and the Husband's challenge to his deceased wife's will and estate plan was thrown out of the Macomb County Probate Court. In doing so, the probate court made a finding that Husband should not be considered a "surviving spouse" because he had abandoned his wife for more than a year.

Next, the sister went on the attack, suing her former brother-in-law on behalf of her sister's estate and seeking a determination that the probate court's finding (i.e. that Husband was not a "surviving spouse") destroyed the "tenancy by the entireties"; the mode of ownership of the former marital home.

When that didn't work, the sister amended her complaint to seek contribution from the Husband for Wife's sole maintenance of the properties.

The Court of Appeals was not persuaded by the sister's legal arguments in equity, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling emphasized the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

In reversing the intermediate appellate court, the Supreme Court extended the doctrine of contribution to find Husband liable for his portion of the maintenance of the property. The high court was persuaded to fashion an equitable remedy where Sister had no remedy at law.

Essentially, the Supreme Court found that Husband had been unjustly enriched by reaping the benefits of his wife's maintenance and improvements to the properties, while contributing nothing.

The case is illustrative of how our court system processes a case. The initial decision is never final. In this case, the sister's case went all the way to the Michigan Supreme Court; went back down to the Court of Appeals for an opinion after that court passed on the case; then went back up to the Supremes.

After its epic journey, this case is binding common law and will determine the result for other subsequent and similar cases. Lesson: if your spouse abandons you with ongoing obligations, he or she may be liable, either in family or probate court, for past maintenance and the cost of improvements on an equitable contribution theory.

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Cheating Spouse App Gets Pulled by Droid

2010-11-03T02:00:00.000-07:00

A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone. What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process. In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied. The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs. These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful. On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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Change of Domicile Case From Clarkston Gets Supreme Court Treatment

2010-10-29T02:22:00.000-07:00

One of the saddest things in a divorce proceeding is when a parent moves the family court for permission to change the domicile of the minor children. When that occurs, not only is the family rocked by the initial shock of divorce, the future relationship with the parent left behind is placed in jeopardy.

A case from Clarkston, MI is instructive on the factors considered when such a motion is brought before the family court judge.

In Sunde v Sunde, mother petitioned the court to change domicile. After considering evidence presented during a hearing on the issue, Family Court Judge Mary Ellen Brennan denied the motion. Although mother's application for leave to appeal was denied by the Court of Appeals, the Michigan Supreme Court issued an order remanding the case to the family court for further evidentiary proceedings.

Specifically, the Supreme Court found that Judge Brennan erred by not considering mother's proffered evidence of domestic violence; one of the five statutory factors the court must consider when deciding a domicile motion. The high court also instructed the family court to consider "up-to-date information or evidence of other changes in circumstance arising since the trial court's most recent order."

Essentially, the Supreme Court has allowed mother a second evidentiary bite at the "domicile" apple. The fate of the Sunde children continues to hang in the balance.

As in all family court cases that are brought to trial, the family court judge is charged with deciding what is in the children's best interest rather than weighing the competing interests of the parents. Hopefully, after hearing all the evidence on each statutory factor, the path becomes clear to the judge.

This case pits long-time Clarkston-area attorney Lawrence Russell against Ann-Marie Okros, also from the Clarkston area.

Our firm has an excellent track-record of prevailing in domicile trials. If you or a family member would like a free consultation on this, or any other family law issue, use the contact information below to schedule an appointment.

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Specialized Foreclosure Courts Spring-Up in Florida

2010-09-07T05:20:00.000-07:00

If you lost your home to foreclosure, would you know who steps into your shoes as the next owner?

Uncertainty answering that question is plaguing an innovative specialized court-system in Florida designed to speed-up the foreclosure process. The recently tallied second quarter found Florida leading the nation in the proportion of delinquent or foreclosed mortgages: 20.13%.

This high mortgage failure rate is nurtured by the poor economy which has driven home values so far down, nearly half of all Floridian home-owners now owe more on their mortgages than their homes are worth. To combat this problem, the Florida legislature recently allocated ten million dollars to implement a high-speed "foreclosure only" court system.

Florida's Ninth Judicial Circuit Chief Judge, Belvin Perry, Jr, reported last month in the Florida Bar News that the foreclosure court disposed of 1,319 cases in July alone. While impressive, this case-completion rate will not make a dent in the nearly half million homes awaiting the requisite repossession adjudication under Florida law.

And speed does not always equate with justice. Some attorneys that represent borrowers in the Jacksonville area complain that the retired judges enlisted to process the foreclosure "rocket docket" do not spend adequate time reviewing often-complex files, and the homeowners' motions contained therein. Another common complaint is that as these judges slash through the backlog, they tend to favor lenders over borrowers.

In some cases, judges have awarded foreclosure rights to plaintiffs who have not proved ownership of the subject property; a threshold issue. In other cases, the retired visiting judge on a particular date is simply not adequately advised in the premises of the multitude of cases on the docket that day.

Another problem facing the court is the large number of cases that feature sketchy documentation presented by a lender to prove ownership. Added to this are the multiple transfers characterizing many mortgage transactions, each draped with a bewildering assortment of documentation

These problem are so bad, the Florida Attorney General recently announced an investigation of the three largest law firms in the state that represent foreclosing lenders. Alleging that the firms are acting as foreclosure mills, the Florida AG has accused instances of document fabrication and post-dating. One of the targeted firms, Law Offices of David J. Stern, filed more than 70,000 foreclosures last year.

Another practice that distorts the identity of home-ownership in foreclosure court is the use of bank affidavits when a particular document can no longer be located or produced for the court. Borrowers' attorneys assert this common practice is improper when the bank official has a stake in the outcome of the case.

For many of the residents of these homes, foreclosure is just one stop on the way to bankrutpcy. These folks would probably not see the humor in the name of Attorney Stern's new $20 million dollar yacht: Miss Understood.

Oakland Circuit Judge-Shuffle Shaping Up

2010-07-18T08:52:00.000-07:00

Recently, President Obama appointed Oakland Circuit Judge Mark Goldsmith to the federal bench in Detroit. His appointment has been approved by the U.S. Senate and he is expected to assume his place at the United States District Court for the Eastern District of Michigan by year's end.

Goldsmith's appointment creates an opening on the general docket of the Oakland County Circuit Court. Oakland Family Court Judge James M. Alexander has announced that he will vacate his place in the Family Court to assume Judge Goldsmith's docket.

Judge Alexander will be handling general civil cases, and a criminal docket. This means that attorneys, and parties that had matters pending with Judge Alexander in the Oakland Family Court will have their matters re-assigned to another judge.

This also means that another judge will be appointed, perhaps by the end of the year, to fill Judge Alexander's spot on the family court in Oakland County. Rumors are rampant relative to Governor Jennnifer Granholm's appointment for this seat. Among a few others, we've heard that 51st District Chief Judge Phyllis McMillen is under active consideration.

McMillen would be well-suited for the family court appointment. A judge's judge, McMillen brings plenty of judicial experience as well as a valuable even-handed judicial demeanor to fill this important vacancy. Unfortunately, in our system of political judicial appointments, the right person does not always get the job.

Our system of judicial elections for at-large seats, and gubernatorial vacancy appointments makes for an ever-changing bench at the county and municipal levels. Good judges help to instill in the general public the proper confidence in our judicial system.

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Dividing Retirement Assets: Who's Loss; Who's Gain?

2010-05-26T03:33:00.000-07:00

In mid 2008, many divorce attorneys faced the problem of apportioning sudden significant losses in the stock and real estate markets. Those cases depended on valuing IRAs and 401(k) plans to neutralize the risk for both parties.

The economy fell too fast and too far, however, for many sagging marriages. During the first two quarters of 2008, many divorce litigants locked-in on values established over appreciable time. Unless their divorce attorneys had the qualified domestic relations order (QDRO) ready at the trial date (a rare bit of forethought), significant value was lost each day of the delay. In some cases, more than six-figures.

One such case decided during that era by Oakland County Family Court Judge Elizabeth Pezzetti, Skinner v Skinner, was upheld last week by the Michigan Court of Appeals.

The MCOA opinion in Skinner is a guide for divorcing partners relative to what constitutes premarital or "separate" retirement property and defines "passsive income" relative to retirement assets. The case also illustrates the consequences of stipulating to division dates for retirement assets, then suffering a long delay prior to full-resolution of the divorce litigation.

In Skinner, Husband stipulated to a date for purposes of valuation of the couple's retirement assets, including the pre-marital portion of his 401(k). A two or three day trial and other dispositive court hearings were then spread over the next 3-months, during which time investment portfolios tanked, eroding nearly half the accrued value in retirement assets, across the board.

The issues in the case were: how to classify the significant interest income generated from Husband's pre-marital, and thus separate, retirement asset; and what date to use for division of the parties' IRA.

Coming into the marriage, Husband had invested approximately $15,000 in his Ford Motor Company 401(k) plan. Over the course of the couple's 23-year marriage, more than $150,000 in marital earning contributions were made to the Ford plan.

As of the (pre-Great Recession) trial date, the value of the parties' other significant retirement asset, an IRA, was nearly $500,000. By the time the judgment of divorce entered in mid-November, the IRA was only worth $330,000, and the Great Recession was upon us.

At trial, Husband presented a mathematically sound formula to calculate the interest generated from his pre-marital investment; these calculations were uncontested. In her opinion dividing the marital estate, however, Judge Pezzetti ruled that 100% of the appreciation on the retirement plan was part of the marital estate.

The court of appeals affirmed Pezzetti's decision, including such gains as a component of the marital estate when a spouse, in this case the Wife, assists in the growth of the separate asset. In the Skinner case, this assistance took the form of Wife's role as homemaker for the parents' four children.

Husband in Skinner took a double hit due to the losses incurred from the stipulated valuation date and the delay in getting the divorce judgment entered. He cried "unfair" to the appellate court, to no avail.

In many of these cases, investor(s) nearing traditional retirement age were caught napping; some had a significant portion of their life-savings invested in stock-based retirement assets rather than a more liquid, diversified portfolio. Once the Great Recession took hold of the economy, divorce attorneys whose clients had already agreed to valuation dates for retirement assets lost significant value each and every day until their final judgment was entered.

Even when (painfully) aware of the issue, attorneys simply could not complete these divorces fast enough. One of the parties, like in Skinner, usually came up short, suffering a complete loss of retirement value.

Once an agreement is reached, or when a divorce trial begins, it is crucial for the attorneys to work diligently in order to complete the often painful and emotional process of ending a long-term marriage. Skinner tells us that no good can come from a delay.

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Family Court's Custody Rulings Must Cite Findings

2010-05-23T08:57:00.000-07:00

Last Thursday, the Michigan Court of Appeals reversed a custody ruling of the Eaton County Family Court. The tortured case, Wilbur v Carter, arose from a paternity suit, not a divorce.

The couple in this case conducted a protracted custody battle over their now 11-year old child. The case features just about every tool available to the family court judge: supervised parenting time; temporary orders; in camera interviews with the child (twice) and evidentiary hearings.

The family court made a series of custody rulings in Father's favor over the years, keeping Mother's custody hopes alive by scheduling review hearings. Father had been awarded sole legal custody and the stated purpose of the review hearings were to determine whether joint legal custody could be reinstituted.

Although the unpublished decision does not contain the underlying facts, the family court judge apparently did not approve of Mother's life style, removing her as a joint legal custodian of her child, and ordering supervised parenting time with Mother.

Over the past seven years, the parents kept filing motions for custody. The lower court flip-flopped on the issue, alternating between temporary orders of sole legal custody to Father; then switching back to joint custody. What troubled the Court of Appeals was that none of the requirements contained in the Child Custody Act were followed.

Before a family court judge changes custody, it must first determine whether an "established custodial environment" exists with either, or both, parents. This term is defined in the custody act to mean:

if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

The Eaton County Family Court neglected to make this determination in the case. This is important because a court's determination of an established custodial environment determines the burden of proof which the moving parent must satisfy before a change in custody can be made.

In addition, the Court of Appeals was also disturbed because the lower court failed to make any determination that a "change of circumstances" or "just cause" existed to justify the requested custody modification. Finally, it also reversed the family court because it made no findings of fact based on the 11 statutory custody factors set forth in the custody act.

Often, family courts feel constrained by their crowded dockets and the sometimes "informal" nature of the family court. Attorneys foster this environment by allowing decisions on custody matters without the requisite findings by the court.

This case stands for the proposition that a family court cannot properly change custody without first: determining whether an established custodial environment exists; then determining whether the requisite "change of circumstances" exists; and finally making a factual determination after an evidentiary hearing as to all 11-factors.

The case calls for good lawyering in each and every custody battle, regardless of the court's resources or the resources of the parties.

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Same-Sex Marriage Cases Go Constitutional

2010-04-11T08:52:00.000-07:00

A federal law suit filed last year by two California same-sex couples (one gay; one lesbian) has raised constitutional issues in the gay marriage context and is unfolding in a momentous trial. In Massachusetts, another federal case tests whether a federal statutory provision that draws a sexual-preference distiniction is constitutional.

The complaint in Perry v Schwarzenneger, filed in the Northern District of California and assigned to Judge Vaughn R. Walker, has high-powered lawyers seeking far-reaching relief for the rights of (gay) individuals. The case is another chapter in the tumultuous world of 21st Century Californian sex-gender politics. The "all-in" nature of the Perry case, however, will have effects that touch most families in America.

You may or may not recall that back in 2004, the newly-elected young and dashing San Fransisco mayor Gavin Newsom made an international splash by presiding over same-sex civil marriage ceremonies conducted at City Hall. The California Supreme Court squashed the practice in about 30-days, voiding all the marriage licenses issued as a result of Gavin's project.

In a May 2008 change of course, the California Supreme Court decided (4-3) the case known as In Re Marriage Cases, holding that any California laws, "that treat persons differently because of their sexual orientation should be subjected to strict scrutiny..." The California high court decision struck down proposed state legislation seeking to ban same-sex marriage on the grounds the initiative violated the California constitution.

Six months later, in yet another change of course, the California electorate (narrowly) approved Proposition 8, defining marriage as between opposite-sex couples only. The California Supreme Court swiftly followed suit in Strauss v Horton, upholding the passage of Proposition 8, but applying that referendum prospectively, thereby preserving the approximately 18,000 marriages that had been performed prior to the passage of the referendum; and perhaps unwittingly creating an arbitrary class of persons to which other gays can point in an equal protection analysis.

Enter the lesbian couple Kris Perry and Sandy Stier (Berkeley) and gay couple Paul Katami and Jeff Zarrillo (San Fernando Valley), pictured in the above link emerging from the federal courthouse following the first day of court proceedings. The couples, very carefully selected by well-funded and well-connected gay rights activists, were apparently up for the arduous task of prosecuting constitutional federal litigation. Neither couple were among the tens of thousands to take advantage of the narrow 6-month window to obtain a marriage license in mid-2008, making them ideal constitutional-litigants.

Some gay rights activists have criticized the suit as premature and ahead of the public opinion curve on the same-sex marriage issue. While the concept seems to be gaining ground in abstract opinion polls, to date, only 5-states allow same-sex marriages: Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont. On the other hand, 29-states (including Michigan) have amended their Constitutions to outright ban gay marriage by defining a marriage as between a man and a woman.

Many in the front-lines of the gay rights movement prefer the slower, state-by-state approach to "resolving" the same-sex marriage issue. They worry that the Supreme Court could hand their movement a serious setback by issuing a neutral or worse, an anti-gay, decision along the lines of the 1986 Bowers v Hartwick decision (upholding a Georgia sodomy law on the basis there was no constitutional protection for sexual privacy). It took the high court 17-years to reverse the dubious Bowers decision in the seminal 2003 case of Lawrence v Texas, which expressly overruled their prior decision as defining the liberty and privacy interests of two consenting adults too narrowly to survive a Due Process analysis.

There is also a notion that gay-marriage was removed via the ballot box and that's where the battle should be won. In our Democracy, however, core individual rights (once defined) are not subject to the ebb and flow of majority rule.

Other gays are tired of waiting, however, genuinely offended by the series of referendums passed which discriminate against their sexual orientation. For example, California already has a progressive civil union statute to protect property rights and employment benefits. But the Perry case is about much more than property rights and benefits; it is about individual liberty and the sacred right to chose one's life partner, one's spouse, without interference from the state. Court watchers equate the Perry case to that of Brown v Board of Education (abolishing the "separate but equal" fallacy in public schools) and Loving v Virginia (holding that a state could not prohibit interracial marriages).

Whatever the outcome of the trial, an intermediate appeal to the Ninth Circuit is guaranteed to send this one to the United States Supreme Court. Plaintiffs are represented by the unlikely but outstanding duo of Ted Olson and David Boies of Bush v Gore fame. The former represented Bush as Solicitor General; the latter represented Vice President Al Gore in the famous case settling the 2000 presidential election.

Olson's conservative credentials have led some to wonder whether he is serving as a "double agent" planted to hand the movement a serious setback at the high court. Olson should be taken at his word, however, when he states that, separate is not equal and that a "civil union" is not the same as a marriage. With 44-wins already before the high-court, Olson likes his chances at that level and genuinely believes he's on the correct side of this issue.

In the meantime, the Perry case has already been to SCOTUS; Judge Walker's decision to televise the trial on YouTube was appealed from the other end of the state by Senator Dennis Hollingsworth. The appeal stayed the trial judge's decision to stream the trial to the Internet and subject all of us to reading about the case, or suffering through a painful re-enactment of the trial. Several key depositions (Paul Nathanson and Katherine Young) taken last fall, however, have been leaked to YouTube, and effectively convey the background surrounding what is shaping-up as our next great civil rights struggle.

5-votes will be required to establish precedent once a writ of certiorari is inevitably issued by the high-court in the case. Olson and Boies will probably need to persuade Justice Anthony Kennedy, an oft-breaker of ties at the Court.

SCOTUS-watchers figure the so-called liberal bloc of Justices (Ruth Bader Ginnsburg, Sonia Sotomayor, Stephen Breyer, and John Paul Stevens) will vote to condemn Proposition 8 as unconstitutional on Equal Protection grounds. Since Justice Stevens announced his retirement on Friday, effective at the close of this session of the Court in June, President Obama's second high-court nomination takes on critical importance in the Perry case. Justice Stevens' replacement will most-likely be a confirmed sitting Justice by the time Perry is on the high-court's docket sometime in 2012; the day-after-tomorrow from the Supreme Court's usual long-range perspective.

Of note: Perry is not the only "gay-rights" case percolating through the federal courts at the moment. Also destined for certiorari is Gill v Office of Personnel Management. That case presents a more narrow constitutional challenge to a specific provision of the Defense Against Marriage Act preventing same-sex couples from receiving benefits that other non-gay federal employees receive for their families.

Plaintiff's counsel in Gill, Mary Bonauto, prevailed in the Massachusetts case that legalized gay-marriage. While Bonauto acknowledges that her more-recent federal case is not the left-coast headline-generator that Perry is, she is mindful that both cases seek to expose the federal government's "double standard" when it comes to same-sex marriage; the feds recognize a wide-variety of marriages once they are licensed by a state, except in the case of gay-marriages. Bonauto and other legal professionals fear that Perry seeks too momentous and far-reaching relief; the decision, after all, could invalidate anti-gay-marriage laws in nearly 40-states.

Michigan Connection: In addition to those of us who have a family member involved in a same-sex union (my brother) or who are themselves involved in such a union, the left-coast Perry case could invalidate the 2004 Marriage Amendment to Michigan's constitution.

Also, the electronic divorce attorney (yours truly) will be admitted to the bar of the United States Supreme Court on the final day of this session, June 21st; Justice Stevens' final day of his long career on the high-court.

Stay tuned for the outcomes of these cases folks as we strive to keep you informed of significant developments.

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Child Support Still Owed When Parental Rights Involuntarily Terminated

2010-03-14T08:18:00.000-07:00

There has been some buzz among family law practitioners this week concerning the Michigan Court of Appeals' decision in the DHS vs Beck case.

The COA held that a father, so neglectful and abusive that his parental rights were terminated, nevertheless remained obligated to pay child support for his two children. The decision, arising from an Oakland County abuse case, will be published and thus binding on all Michigan family courts.

The father did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children. On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments). The intermediate appellate court, however, was unimpressed, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court went on to analyze the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments. Michigan common law has long established a minor child's right to support from both parents. The Court also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In upholding the Oakland County Family Court, the COA ruled that a child's right to support cannot be bargained away in a termination proceeding. The Beck panel decided that if the legislature had intended to terminate a parent's obligations along with his parental rights, it would have said so in the statute.

The Court also relied on it's earlier decisions that held support obligations continued in the wake of a voluntary termination or adoption.

Also of note in the dicta of the Court's decision was an express acknowledgment of the current "times of difficult financial circumstances." The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

Finally, in deciding the case, the COA was careful to avoid the unintended consequence of encouraging the neglect and abuse of innocent children by seeking a parental termination. Since an irresponsible parent cannot escape his support obligations by abusing or neglecting his children, the better interests of those children are served.

This is a sound decision by the intermediate appellate court. Good thing the COA granted father's delayed application for leave to appeal (a discretionary appeal as opposed to an appeal of right). Making a parent pay for their children despite their neglect is in both the child's and the community's best interest.

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No Joke: What's the Difference Between a Divorce and a Tatoo?

2010-02-21T17:56:00.000-08:00

This blog post is from the SBM Blog and is the original content of the State Bar of Michigan.

As Michigan lawyers go about the work of convincing our state legislators that a tax on legal services would be a fundamental and costly mistake (see "Unfair, Unwieldy, Unwise, Unethical, and Unconstitutional"), we face the same response again and again: "if we exempt one service we have to exempt them all." In Georgia, policymakers are also gearing up for a tax on services, and a recent white paper from Georgia's venerable Tax Foundation asks: "Can anyone really keep a straight face while justifying a tax exemption for legal services, tattoos, haircuts, car repair,health club memberships and other common services?" Well, we can. In fact, we wonder how serious policymakers can keep a straight face equating legal services with personal grooming and adornment services.Bottom line: government shouldn't tax behavior that is good for society. We're all better off when people get the legal advice they need to secure justice or comply with the law. Tatoos, not so much.

UM Law School Challenges Constitutionality of Felony Child Support Statute

2010-02-15T06:06:00.000-08:00

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute. The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox. The appellant-defendant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008. Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County. The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court. She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder. Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period. She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability. The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration. The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution. The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation. When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history. Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution. McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid. Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution. In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore. Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument. The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

Update: The Court of Appeals "changed its mind" and, on its own motion, granted the parties a very brief oral argument on March 4, 2010; ten minutes for each side.

The Court of Appeals issued it's unpublished per curiam opinion affirming Defendant's conviction on grounds her constitutional right to Due Process was not violated. The Court held that, because she availed herself of numerous hearings in the family court, she was afforded Due Process.

When I discovered this opinion had been issued, I contacted Professor Moran to get his take on the result. He simply stated that he did not believe the panel fully understood the facts of Ms. Likine's case. Also, Professor Moran said he was applying for certiorari to the Michigan Supreme Court and then, if necessary, on to SCOTUS.

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2009 Michigan Child Custody Update

2010-01-03T19:36:00.000-08:00

This post summarizes some of the more interesting 2009 family law decisions from the Michigan Court of Appeals dealing with child custody.

In 2009, the Court of Appeals looked at the interplay between the juvenile code and the child custody act in two important cases. The first case discussed was published and thus binding precedent; the second case is unpublished and does not bind subsequent courts in Michigan.

In a case from Wayne County, In the Matter of A.P., Mother had sole custody of her child from a paternity action. She was accused of abusing the child. The resulting juvenile proceedings re-introduced the child’s biological father into the child’s life. In the lengthily proceedings, the juvenile court’s rulings intersected and conflicted with prior orders from the family court.

The Court of Appeals held that the juvenile court supersedes the family court:

Once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect.

DHS v Gunther is significant as it also addresses jurisdiction via the juvenile code over children that are already under the jurisdiction of the family court. In this case, Mother had “physical custody” of the parties’ children resulting from a divorce judgment.

The Gunther children came to the attention of DHS due to school truancy allegations resulting in temporary placement of the children with their father. Mother moved for their immediate return, asserting that the juvenile court referee could not alter the children’s “established custodial environment” without first conducting a hearing, as required by the Child Custody Act.

Again, the Court of Appeals held that once a juvenile court assumes jurisdiction over a minor pursuant to the juvenile code, the juvenile court’s orders supersede all other previous orders; including those issued from a family court.

In Pobanz v Pobanz, the Court of Appeals decided the issue of whether a 17-year old could be court-ordered to participate in parenting time within the context of a custody challenge. As in the two other cases discussed in this post, Pobanz also featured a co-occurring neglect petition in the juvenile court.

The trial court stated that it would not force a 17-year to participate in parenting time when she stated that she did not want to see her Father. Although the Pobanz panel agreed with the trial court that a seventeen year old’s reasonable custody preference is given wide-deference, it held that the lower court erred by not conducting an evidentiary hearing to determine whether the many other statutory factors supported the decision. The case was sent back to the Huron County Family Court to conduct the hearing.

Surprisingly, the Court of Appeals allowed the trial court to change judges based on the subsequent juvenile case. The family court judge was first assigned to the Pobanz family in the divorce proceedings, but the trial court transferred the divorce, and Father’s custody motion, to the judge presiding over the subsequent juvenile proceedings.

This ruling is interesting in that it seems to violate the “one family, one judge” concept set forth in 1996 with the creation of the family courts across the state. According to the reorganization statute, multiple cases involving the same family were all to be assigned to the first judge in the county assigned to that family.

In Bonner v Bonner, the Court of Appeals decided the issue of whether a child could be compelled to testify at hearing on his parents’ competing change of custody motions. The case featured the open-court testimony of the parties’ minor child, limited to matters of alleged abuse by the Mother.

The case is most interesting for featuring the testimony of a well-respected psychologist that had observed the parties and child at the court hearing(s). The psychologist then provided testimony to the family court as to his observations of both parents and the child. Note: The family court judge did not find the child’s testimony about the conditions of his Mother’s home to be credible.

Also, the case is significant in that a child was compelled to testify in order to satisfy his parents’ right to due process. Unlike in camera testimony of children called into a judge’s chambers to express their custodial preference under seal, this case featured the open-court testimony of a son against his own Mother.

Next, the Court of Appeals, in Roguska v Roguska, examined whether a family court could reject a settlement agreement on custody reached at court-ordered mediation by both parties and their respective attorneys. In that case, the Mother subsequently attested that her husband lied during mediation, that she and her husband had serious communication problems, and that she subsequently obtained a PPO against the husband.

The Roguska panel held that such facts freed the family court from having to follow the settlement agreement on the custody issue. In cases of domestic violence, arbitration and mediation are allowed, but disfavored due to the coercion that can sometimes be brought to bear against the victim of abuse.

The case of Hoeve v Hoeve continues the series of Court of Appeals decisions holding that the parents' school-district decision may be, by itself, proper cause to change custody. In Hoeve, the pre-school child spent week-on-week-off with mom and dad. Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten.

The parents lived about 70-miles apart. Father's motion to acquire sole physical custody succeeded at trial and was affirmed on appeal.

According to family law appellate attorney Scott Bassett, the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

This is a summary of what came out of the Court of Appeals on matters of custody in 2009. Many other decisions addressed the important issues of domicile and parenting time which will be addressed in future posts.

Only time will tell what 2010 will bring.

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Washtenaw County Guardianship Spotlights Problematic Surrogacy Arrangements

2009-12-13T12:39:00.000-08:00

A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul. The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate. The Grand Rapids couple located Baker from the surromomsonline web site. The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July. The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes. According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder.

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds. In addition, surrogacy for profit is a five-year felony. The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:

As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.

Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case. To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses. Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances. In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins. She also claims that lawyers have advised her that custody of the twins is unlikely. For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant? Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis. More gay couples want to complete their families with children of their own. Surrogacy and adoption are the primary means to this end. For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip. The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays. The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007. Also see Nathan Koppel's posting on the case in the WSJ's Law Blog. Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive. Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?

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Michigan Family Law Updates

2009-11-25T04:54:00.000-08:00

Over the past several months, as Michigan and the nation grind through a sustained recession, many articles have appeared pointing to the trend of couples staying together, despite a doomed marriage. The fact is, divorce is very expensive.

In the attached article from the Star-Ledger (New Jersey), Attorney Susan Reach Winters answers the editor's questions on this tough subject. The article focuses on some of the financial aspects of divorce and provides some common-sense answers that readers of this blog may find quite useful in the -painful- contemplation of a divorce proceeding.

Setting aside the costs of divorce; what about the pain caused when a child results from an ill-fated union between two people, when the woman is married to another man? This is the subject of a recent Detroit News article, covering a few heart-breaking cases here in Michigan, as well as a proposed change in Michigan's Child Custody Act (CCA).

Currently under the CCA, if a child is born during an intact marriage, and the biological father is not the husband, the bio-dad has no standing in court and thus, no rights to parent his child whatsoever, unless and until a divorce action is filed. Even in cases where a divorce is filed, the rights of a bio-dad are limited should the bio-dad intervene in the divorce proceeding.

The bill, introduced by Sen. Michelle McManus of Leelanau County, proposes giving biological fathers a short window (one-year) to bring a proceeding in family court to assert his rights as the father of a child. Positive DNA results would be required along with a showing that the mother was separated from her husband at the time of conception. The latter requirement, if added to the Child Custody Act, will guarantee plenty of work for family law attorneys. Currently, the bill is being vetted by the State Bar of Michigan's Family Law Counsel. Thus, it may be some time (years) before the CCA is amended along these lines.

If you have family law issues, and you want answers, contact our firm to discuss your options.

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WSJ Readers Respond Emotionally to Article on Alimony

2009-11-17T03:28:00.000-08:00

Alimony, now known as spousal support here in Michigan, is one of those topics in family law that elicits an emotional response from nearly everyone. In tough economic times, most people have a gut reaction to the concept of paying financial support for an ex-spouse.

Whether alimony is appropriate, however, is a fact-specific analysis, with each family bringing much different facts into court and into the equation. A recent WSJ article by Jennifer Levitz takes an anecdotal look at the concept of alimony. Her readership posted 175 emotionally-charged comments to the article on this apparently sore subject.

Levitz's article focused on the inequities that can result from alimony awards when years pass, and circumstances change. The article also noted that many states, (Ohio, Pennsylvania, Massachusetts, Oklahoma, Florida, Arizona, and North Carolina, among them), are considering legislation to limit alimony. Some of the states have activitst groups (with memberships of "burned" former spouses, no doubt) that have hired lobbyists for the task.

In Michigan, spousal support is alive and well; but it's not your Grandfather's alimony. Unlike child support which is calculated by a formula using the inputs of the relative incomes of the parents, and the number of overnight parenting sessions with the "non-custodial" parent, alimony is always negotiable.

Significant considerations include whether spousal support is forever barred, or whether it is awarded and, if so, whether the award is modifiable. In some cases, it makes sense to bargain for the certainty of non-modifiable alimony; the payor knows what he's in for, and for how long. Other cases call for a compete ban on alimony, either because each spouse is professionally equal, the marriage was of relatively short-term, or because the property division favored the "lesser-earning" spouse.

These are all considerations one must take into account as a divorce proceeds toward judgment.

If you are facing a divorce that may include some of these issues, contact our firm to discuss your options. We can provide you with immediate peace of mind with sound legal advice based on your specific circumstances.

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Child Support Reduction & Collection Requests Flood Friends of Court

2009-11-02T16:28:00.000-08:00

The pain is inflicted on both sides of the fence in family court cases across the state. For those paying child support, and for its recipients, the depressed economy in Southeast Michigan is taking a toll.

As a recent article in the Detroit News makes clear, the Friend of the Court in counties accross Michigan are scrambling to field the flood of requests filed to reduce child support, or to enforce an existing support order. Most of the parents seeking a support reduction are doing so because they've either lost their job or have been handed a pay-cut.

Child support in Michigan is calculated using an algorithmic equation known as the Michigan Child Support Formula. This formula is based on three main inputs: the payor's income, the recipient's income, and the number of overnight parenting sessions for the payor. A payor's support obligation is modifiable if there is a "change in circumstance" to justify the request. One such justification is when a payor, through no fault of his own, loses a job or suffers a significant decline in income.

In difficult economic times, county Friends of the Court (the administrative arm of the family court) experience an increase in the volume of motions from payor's and custodial parents alike, seeking relief from the financial pain. In the case of a payor, the support automatically deducted from his paycheck may exceed more than half of his take-home, especially when that "take home" is an unemployment check. Across town, the custodial parent is used to receiving a certain amount of support to help make ends meet for the children.

When a party files a motion to modify his or her support, the matter is reviewed by a Friend of the Court Referee (a quasi-judicial official) before it goes to the family court judge. Most FOC Referees utilize support specialists; professionals trained in the application of the child support formula. The court rules provide for the Referee to make a recommendation to the judge regarding whether the payor's support should be reduced or not.

Each November, as the year-end approaches, parties realize there are only a few weeks left to get their matter heard before the courts shut down for the holidays. Many scramble to file motions, hoping they can obtain some financial relief. Wanting to save money, they forego hiring an attorney. When a party files a motion on their own behalf, however, it can take quite a long time before the FOC grants them a hearing.

One advantage to hiring legal counsel is that the attorney knows how to get a client's motion on the dockett by the end of the year. In addition, family law attorneys know the many angles and tricky aspects of the support formula, and how to apply that formula to a variety of compensation packages and parenting schedules.

According to the Detroit News, child support arrearages rose by approxiamtely $113 million from 2005 to 2008, although the number of support payors decreased. These support arrears are expected to increase as unemployed payors lose their state benefits. The situation has attracted the attention of Congress, which is proposing legislation designed to extend unemployment benefits for child support payors.

If you or a family member need relief from an acute child support situation, contact our law firm for immediate relief. Our firm handles dozens of such cases throughout the year. Our service is excellent and our fees reasonable.

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Mich Supreme Court Passes on DNA Paternity & Parenting Case

2009-09-20T08:33:00.000-07:00

Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts. As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son. (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.) DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce. Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test. For his part, Father requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio. Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son. The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess.

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago. The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child. In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states. Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another. The doctrine is for the benefit of the child, not the parent.

The Lipnevicius case is destined to return to the Michigan Supreme Court. Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable parent doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent. Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

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Contempt of Family Court Orders Can Result in Jail - Lots of It

2009-09-13T07:31:00.000-07:00

A recent Michigan Court of Appeals decision highlights the powers family court judges have in enforcing their orders.

In Powers v Powers, the Wayne County Family Court jailed a Massachusetts woman for her refusal to abide by a series of parenting orders. She was given the option of paying more than $4000 in sanctions that had built-up in the case, or serve two days in the Wayne County Jail.

This case, and hundreds like it across the state, highlight the power of family court judges to govern family actions once the court has jurisdiction over the family members.

The appellant's assertion that a court's powers of contempt were criminal and thus, could not be exercised in family court was rejected by the Court of Appeals.

This past summer, perhaps the most striking example of a family court's contempt powers gained national attention. A Philadelphia, PA corporate attorney spent 14-years, yes that's Fourteen Years, in jail on a contempt charge based on his failure to pay his ex-spouse 2.5 million in a divorce settlement. More details on this interesting use of a family court's contempt powers, along with commentary, is attached in this link.

There has long been a debate among attorneys regarding the contempt powers of family court judges. These powers are particularly disruptive/intrusive in matters of custody and parenting time. Most family court judges mete out contempt punishments sparingly, and as a last resort. Often, family law attorneys counsel clients in ways that avoid the drama of contempt proceedings and show cause hearings. Sometimes, however, a party needs to be forced back to the fold.

If you would like your divorce judgment reviewed, or go over other options you may have based on the family court orders entered in your case, contact our office.

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Children 14-times more likely to get swine flu

2009-09-11T05:23:00.000-07:00

This blog post is from the Updates in Michigan Family Law Blog of Traverse City Attorney, Jeanne Hannah:

Of camps and day care:
Kids 14 times more likely to get swine flu

"Mom, can I have a sip of your water?" This is a pretty easy question when you're talking to your young child, right?

WRONG! Brigid Schulte, Washington Post Staff Writer wrote on Saturday, September 5, 2009 about how insidious the swine flu is, how susceptible to exposure and potential infection our children are . . . and how we have to worry about such simple things as . . . it's a hot day, your child is thirsty and wants a sip of your water. We tend to think of our young children as sharing the same germs we all share at our house.

But, when you have summer camp, computer camp, day care, school, etc. all in the mix . . . bottom line? We don't know whose germs might be spread when we share a simple glass of water with anyone, even our loved ones.

Read Brigid Schulte's article "How, Gulp!, You Get Sick During the Swine Flu Season, Think Before You Share a Drink With Someone" on the Washington Post site.

An Article in the Wall Street Journal published on August 27th, byline Shirley S. Wang, says that "[o]ne of the unusual things about the swine flu is that it often strikes young, healthy people, while skipping over the elderly." According to the WSJ, kids and young adults are 14 times more likely to get swine flu. See the WSJ Blog article here: Study: Kids 14 Times More Likely than Elderly to Get Swine Flu.

This news is just in from the September 5th New York Times: Over 2,000 students at the University of Washington have reported symptoms of swine flu. Classes have not even started yet! They are planning to distribute antibacterial hand sanitizer where large crowds congregate such as football games.

See a CDC report released on August 28th here. The CDC confirms that children and young adults are at a disproportionate risk for infection and hospitalization and that it is appropriate to direct appropriate prevention strategies at this population. See also the CDC’s recommendations about H1N1 flu vaccinations. in the CDC report linked above.

The Michigan statistics on H1N! flu are pretty compelling. Check out those numbers for Wayne, Oakland and Macomb counties.

What You Can Do to Stay Healthy

According to the CDC, the following are ways in which you and your family can avoiding catching swine flu. First, stay informed. The CDC website will be updated regularly as information becomes available.
Influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people.
Take everyday actions to stay healthy.

Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hands cleaners are also effective.
Avoid touching your eyes, nose or mouth. Germs spread that way.
Stay home if you get sick. CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them.
Follow public health advice regarding school closures, avoiding crowds and other social distancing measures
Find healthy ways to deal with stress and anxiety.
More from the CDC H1N1 Update: CDC Issues Guidance for Early Childhood Programs

The CDC has issued guidance to help reduce the spread and severity of influenza among children in early childhood programs and their providers.

Based on the severity of 2009 H1N1 influenza so far, recommendations include:

Children and staff in target vaccination groups should be immunized.
Those with flu-like illness should stay home until they've been without fever for 24 hours (without using fever-reducing medications).
Child care providers should check staff members' and children's health daily, and separate ill individuals from others until they can be sent home.
Treatment within 48 hours of illness onset should be encouraged for those at high risk for flu complications.
If influenza severity increases, additional strategies include:

Children with ill household members and high-risk staff should be allowed to stay home.
People with flu-like illness should remain at home for at least 7 days after symptom onset.
Program closures should be considered.
CDC guidance document (Free)

Passport Denied When Parent Owes Support Arrears

2009-08-24T03:19:00.000-07:00

You are a non-custodial parent planning a vacation to Cancun with your kids. Your passport has lapsed and you apply for a new one, along with your children. Instead of receiving your passport, you get a letter from the Secretary of State denying your applications. Why?

Because you owe more than $2500 in child support, and because the custodial parent must assent to the passports for the kids. Child support enforcement has had a federal component for several years now.

Back in 2001, the U.S. government mandated that states align their child support accounts with state-wide computer programs. In Michigan, all county Friends of the Court have implemented the Michigan Child Support Enforcement System (MiCSES). MiCSES then certifies the support owed and reports those in arrears over $2500 to the Office of Child Support Enforcement, which is under the U.S. Dept of Health & Human Services (DHS). Next, DHS notifies the State Department which denies the passport application.

Also, in cases of divorce or custody disputes, both parents must execute passport applications for children under age 14 pursuant to the federal Two Parent Consent Law passed back in July 2001.

Once you are on the State Department's list, you do not automatically come off, even when the arrears are paid. Eventually, your passport will lapse and you will be unable to get a new one without a hassle. In addition, you may be stopped at the boarder unable to leave or re-enter the country. If this occurs, the DHS has summarized the steps you should take on its useful website: http://tinyurl.com/mdael3.

The MiCSES state-wide computer program has several automatic enforcement components in addition to passport denial. The computer automatically reports certified arrears to the U.S. Treasury and the State of Michigan for tax refund intercepts. Arrears are also automatically reported to credit bureaus.

If you are owed child support, or want to address an arrearage, contact our law office to discuss your options.

Divorce in the NFL

2009-08-13T05:03:00.000-07:00

Maximum temptation; continuous travel; lots of money. These are just some of the factors that contribute to the excessive divorce-rate among players in the NFL.

There are no solid statistics, but an unofficial poll along with anecdotal evidence puts the divorce-rate for NFL players at 70% according to a recent NYT article; significantly higher than the overall divorce-rate of about 50%.

Another statistic, perhaps correlated to the high rate of divorce among players, is that within two-years of their retirement, a shocking 78% of these NFL players are bankrupt, unemployed or divorced. There are good reasons for this.

Among professional athletes, football players have a rough row to hoe. They suffer more physical pain on average than in other sports due to the aggressive high-speed nature of their game. They have the shortest average career among all pro athletes; three and a half seasons according to the Players' Association. Contracts for the average player, while lucrative, are usually non-guaranteed and contain significant injury clauses. These stressors can transfer to the player's marriage.

The recent shooting death of one of the league's preeminent quarterbacks, Steve McNair, brings to a head the significance of an NFL player's retirement. McNair was widely perceived as the consummate family man. Married, but killed by his girlfriend, he is one player who sadly will not be adding to the NFL divorce-rate.

Most of us would blame McNair for his own fate. Some insiders, on the other hand, point to several factors that increase the toxicity of marriages among NFL players: rampant infidelity, the "trophy-wife" concept, women who target professional athletes, player entourages that tend to suppress the intimacy required if a marriage is to work.

Perhaps most significant is the painful transition of the athlete from the gridiron to retirement. Issues of self-worth come into play among a group of macho athletes not used to focused self-awareness and who have a seemingly genetic resistance to counseling.

Mothers, don't let your girls grow-up to be NFL wives...

Child Custody & the 100-Mile Rule

2009-07-24T04:00:00.000-07:00

The Michigan Legislature long-ago codified the rules of divorce in the Child Custody Act. One of the provisions in the Act addresses when one parent proposes to move:

"a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued."

A recent published (thus binding) decision of the Michigan Court of Appeals provides guidance as to how those 100-miles are calculated.

In Bowers -v- VanderMuellen-Bowers, the parents had joint legal custody of their son. Father, who had been awarded so-called "physical custody", wanted to move from Big Rapids to Byron, Michigan. The distance is very close to 100-miles.

The lower court adopted a "radial-miles" calculation, rather than using "road-miles", as the Mother asserted. The radial-mile method of calculation involves a simple calculation using a ruler and a map to connect two points, "as the crow flies"; not as a vehicle would travel on actual roads. In the Bowers case, the distance would be more than 100-miles if actual road-miles were calculated, and the move could have been disallowed by the family court judge.

In affirming the lower court's radial-miles decision, the Court of Appeals borrowed analysis from a 2007 Michigan Supreme Court case interpreting the 20-mile restriction of a public employee's residence in the Public Officers & Employees Act. Therefore, Michigan Courts do not calculate miles using actual road miles, the way they are calculated by Google Maps or Mapquest.

If you have a case that involves a proposed move which you do not think is in the best interests of your child, contact our office to discuss your options.

Divorce and Facebook: Privacy Be Gone

2009-06-16T17:45:00.000-07:00

Is there any privacy among partners in a marriage; among parties to a divorce proceeding? In this web 2.0 era, some people are their own worst enemies.

Photos or statements posted on social media sites lose all aspects of privacy. Deleting the post does not remove it from cyberspace. The Internet is resource-rich terrain for discovery-seeking divorce lawyers.

In a divorce, it is advisable to maintain privacy and restrict confidences to one's professional counselors. Why then, are so many people drawn to plasting their every move (including horrible gaffs) on the Internet via the web's easily accesible variety of social networking platforms?

This trend was analyzed in the divorce context in a recent Time magazine article:
http://tinyurl.com/m9n6lh
The article includes a link to five "Facebook Don'ts":
http://tinyurl.com/nml7vq

No doubt; lawyers can and do take advantage of web postings in custody battles and in the property division contest. If you need to have a web posting preserved, or have the source of a post tracked, contact our firm to assess your options.

Casino Winnings & Lawsuit Proceeds to be Attached for Child Support Arrears

2009-05-31T16:46:00.000-07:00

The Michigan Senate is expected to pass a pair of bills designed to utilize proceeds derived from lawsuits and casino winnings, to satisfy past-due child support. The new law will require the recipient to provide notice of the expected windfall to the custodial parent.

In the context of lawsuit proceeds, the payor's family court lawyer, or the litigator that obtains the proceeds for the payor, will be responsible to provide notice of the payor's gain via ordinary mail to the custodial parent.

The bills are currently under consideration in the Senate's Family and Human Services Committee and is expected to be signed into law this session. The provisions are expected to provide modest indeterminate relief to the State by reducing amounts spent on other "means-tested" assistance programs. The proceeds are also expected to reduce some administrative costs.

If you are receiving support and are aware that the payor in your case is about to come into lawsuit proceeds, or has recently received a casino "windfall", contact us to explore your rights to such proceeds.

Identity Theft Concerns in Family Court Orders

2009-05-31T13:02:00.000-07:00

The Michigan House of Representatives introduced a trio of bills which will require judgments of divorce, orders of filiation (between non-married parents) and child support orders to omit a parent's personal information.

It should be noted, however, that a parent's name and address are deemed outside the scope of the phrase "personal identifying information", as that term would be used in the legislation. Personal information is defined as: telephone number, driver license or state personal identification card number, Social Security number, place of employment, employee identification number, employer or taxpayer identification number, government passport number, health insurance identification number, mother's maiden name, demand deposit account number, savings account number, financial transaction device account number or the person's account password, stock or other security certificate or account number credit card number, vital record, or medical records or information.

These bills continue the Legislature's efforts to combat identity theft. Several years ago, social security numbers (once routinely included in a variety of support-related orders and divorce decrees) were precluded from being submitted to a court, even where a form or order contained a feild for the information. Now, only the last four-digits are used, and it is a misdemeanor to include a person's social security number on a public document. The bills also come on the heals of the drafting, consideration and passing of the Identity Theft Protection Act in 2004.

The bills, introduced to the House just last month (April 2009), are scheduled for discussion at a meeting of the House Judiciary Committee on Wednesday, June 3, 2009.

Family law attorneys are becoming increasingly sophisticated and creative in their drafting of these orders in a fashion that avoids telling the public too much about their clients. If you have additional questions on this or other family law topics that may affect your case, feel free to give us a call to discuss.

Same Sex Unions Gain Ground in Midwest

2009-04-14T03:42:00.001-07:00

In a highly controversial ruling from the Iowa Supreme Court, same sex couples received a green-light for marriage when a state law banning such marriages was determined unconstitutional. In a 63 page decision (the first 6-pages of which listed a series of opposing amicus groups that had legal representation in the briefing of the case), the Iowa Supreme Court held that the state law banning gay marriage violated the Equal Protection clause of the U.S. Constitution by treating same-sex couples differently than other couples without a sufficient government interest justifying the classification.

The full decision of the Iowa Supreme Court is attached in the link below:
http://graphics8.nytimes.com/packages/pdf/us/20090403iowa-text.pdf

The case moved the battle over same-sex marriage from the coastal metropolitan centers of the U.S. to its heartland. To date, only Massachusetts and Vermont allow same sex marriages; California did so for about six-months until that law was repealed by voter initiative in the last election in November.

The case also comes on the heels of an unusual ruling by the Michigan Court of Appeals which allowed a same-sex couple to present evidence to a family court judge relative to the partners/parents parenting time requests once their homosexual relationship terminated following their mutual adoption of three children. That case, itself the subject of an entry in this lawblog, is discussed in the attached article from the Chicago Tribune:
http://www.chicagotribune.com/news/chi-ap-mi-gayadoption,0,2545662.story

Court of Appeals Decides Another Relocation Case

2009-04-10T06:51:00.000-07:00

One of the most significant (and often painful) events in divorce proceedings is when a parent seeks a change of domicile; a relocation of the children beyond the 100-miles allowed by the Legislature in the Child Custody Act. These motions often result in hearings that can be more traumatic to the parties and children than a full-blown divorce trial.

The losing parent often appeals the result thus, the Michigan Court of Appeals issues a steady diet of relocation decisions. The most recent is the case of Skeins -v- Mead and can be read in its entirety by clicking on the following link:

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20090317_C287426_49_287426.OPN.PDF

In that case, the parents shared joint physical custody of their child and exercised an alternating weekly parenting schedule. The evidence from the trial court in Crawford County was that each parent exercised their respective parenting time. The domicile issue arose, however, when the Mother re-married and her new husband located a better-paying job in Texas. The Mother claimed she too had employment prospects in Texas.

The Father in this case is employed by the Michigan National Guard. The evidence demonstrated he was a good father, engaged in the proper rearing and discipline of the child.

The Crawford Circuit Court nevertheless found that an "established custodial environment" existed with the Mother only, and granted her motion based on a finding that she satisfied the critical factors of the domicile statute by a "preponderance" of the evidence. The Father appealed the trial court's decision.

In reversing the lower court and remanding the case for an additional hearing, the Court of Appeals, recognizing the difficult economic times faced by all Michiganders, held that the lower court erred by failing to apply the "clear and convincing" evidentiary standard to not only the domicile statute factors, but to all the "best interest" factors set forth in the much broader Child Custody Act. The Court of Appeals also held that the lower court erred by concluding that an "established custodial environment" existed only with the Mother. An established custodial environment is a legal term defined by the court to mean:

if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian
and the child as to the permanency of the relationship shall also be considered.

Since the case is "unpublished", it does not have binding effect on local family courts faced with similar fact-scenarios. This case does, however, offer a solid guide for a parent opposing a relocation motion.

International Marriages Disintegrate with Global Economy

2009-03-20T20:00:00.000-07:00

International marriages that often thrive with money, may wither as the global recession takes hold and deepens. Divorce lawyers in metro-poles such as New York City and London are noting an upswing in their international clientele.

International marriages and their attendant transnational families complicate the divorce process, especially when marital assets are in a country other than the marital domicile, and one or both spouses come from a pair of "old countries". In many such families, one or both spouses are professionals. Their marital estate, even if modest, is spread out. Oakland, Macomb and Wayne Counties all have their share of international marriages due to a significant Arab population and the presence of multinational corporations in the automotive industry.

With layoffs in all sectors of the automotive industry, some of these marriages are predictably coming under stress. Others are failing. When this occurs, one of the first issues is where, which country, to file the divorce complaint. Some countries have legal systems that favor one gender over the other on a series of common issues such as property rights, custody and parenting time.

In a recent case from Oakland County, the Michigan Court of Appeals reversed a family court judge that recognized a divorce obtained in India via the Muslim "triple tiraq", where one party (in that case, the husband) simply states "I divorce thee" 3-times, even though the wife had no actual notice or input to the proceeding, and was not present for the Indian divorce.

In other examples, Michigan has followed California in requiring full and complete disclosure of all assets. Japan and Austria, on the other hand, require very little disclosure of a spouse's property interests. While Japan favors quick "no-fault" style property divisions, convenient for the often-male members of the international elite, the Japanese courts are resistant to fathers seeking joint custody and equal parenting time. Japanese family law reflects the more traditional Japanese culture in this regard.

One of the more significant issues likely to arise in an era of decline in the nuptial-international, is parental abduction and removal of the minor children to third countries. Both the United States and the U.K. have reported increases of international parental abduction. According to The Economist magazine, the kidnappers are the children's mothers in 68% of the cases. According to the Hague Abduction Convention (an arm of the World Court in the Netherlands), the U.S. currently has the largest number of incoming and outgoing abduction cases, followed by England. An overwhelming majority of these cases involve transnational families.

Parental kidnappers believe they are merely getting the drop on their spouse by "forum shopping" the available legal systems; often feeling entitled to assert preemptive custody along with their choice of law. Lawyers in Detroit, Chicago, New York, Miami and elsewhere, are specializing in advising clients on issues of choice of law and international comparative family law. Divorcing spouses are counseled on which legal systems provide the most benefit, given their particular circumstances.

Over the past 20-years, legal developments in the United States have reshaped the contours of the international marriage. Chief among these developments has been the passage of a series of uniform statutes addressing issues such as adoption (the Uniform Adoption Act in 1994), child support and custody (the Uniform Child Custody Jurisdiction Act in 1999, and the Revised Uniform Reciprocal Enforcement of Support Act in 2001), and abduction (the Uniform Child Abduction Prevention Act in 2007).

Intercountry adoption is also a fast-developing area of international family law regulated by a Hague Convention and with guidelines currently under development. One of the cutting-edge problems here is the adoption of children without parents from less developed countries and the human rights concerns such adoptions raise.

Developments in reproductive technology and medicine have also given rise to international disputes involving child custody and property rights. For example, infertility clinics in India or China are not bound by U.S. regulations and can thus attract large numbers of clients from the U.S. and Europe desperate to have children. If disputes arise among the genetic contributors (biological parents, surrogates, etc...) and the "rearing parents", international treaties are ill-equipped to resolve the dispute, or non-existent.

Depending on the country of origin and the respective nationality of the spouses and children, there are a wide variety of options in international family law. One of the first issues is the selection of the forum state pursuant to the legal principles of "choice of law". At every stage, the interests of the minor children must be considered. Parents and interested third parties should take care to keep the interests of the children at the forefront of their deliberations and refrain from resorting to drastic measures such as a preemptive custody move based on “choice of law” concerns. The world is a very big place for a child. All children deserve both parents to help them find their way.

Joint Custody Pioneer Dies in California

2009-03-20T04:12:00.000-07:00

James Cook of California, hailed by many divorce professionals as the pioneer of modern "joint custody" arrangements, died of natural causes at his home in California.

Following his bitter divorce, Cook lobbied the legislature in Sacramento in the late 1970s to pass a then-novel law that provided wide discretion to family court judges in California to fashion a parenting plan that included both parents. Once the law passed, Cook did not stop lobbying; he traveled the country for decades preaching the value of joint custody.

Prior to the joint custody law, fathers across the nation were routinely excluded from meaningful parenting. Following passage of the joint custody statute in California, many states followed suit with similar laws of their own.

Cook is eulogized by some in the family law field as a champion of civil rights. There is no doubt that his sustained effort has had a positive effect on custody jurisprudence.

Study Finds Correlation Between ADHD, Divorce and Alcohol

2009-03-09T05:13:00.001-07:00

A recent study referenced in the Washington Post suggests the divorce rate among parents with ADHD children is almost double from the norm. The study also correlates an increase in alcohol consupmtion for the same group.

This conclusion will come as no suprise to any parent or professional that has dealt with this disorder. Difficult children, such as those that are hyperactive, inattentive and oppositional, often drive a wedge between their parents; particularly when those children reach the mid-elementary school years.

The study, published late last year in the Journal of Consulting and Clinical Psychology, is covered in more detail in the attached article from the Post. Click on the link below:

http://www.washingtonpost.com/wp-dyn/content/article/2009/03/02/AR2009030201787.html?sub=new

The "60-Minute" Divorce for under $500

2009-03-06T18:05:00.000-08:00

A new version of a "New York minute", or just another sign of the times? A law firm in New York City is offering clients divorce in under an hour, and for less than $500, not including filing fees, courier expenses, and other fine print.

For the low fee, clients meet with a lparalegal and lawyer at the NYC firm to provide their personal information. The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you more. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

If you have marital property, need support, or have children, this too can be done in an hour; but will cost you almost double. A Prenuptial agreement will all but disqualify you from the program, although a "conventional" divorce would still be available.

Perhaps the firm is onto something; anyone facing the stress and uncertainty of divorce will appreciate speed of service combined with an affordable price package. To discuss similar options at our law firm, email us for an appointment.

Macomb Woman Attempts Divorce from her Grave

2009-03-01T03:52:00.001-08:00

In a recent case originating from Macomb County, the Court of Appeals held that a woman scorned by her long-time, but absentee husband, could not effectively divorce him from her grave. In the case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. When she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their properties. In the resulting court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The Court of Appeals was not persuaded, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling keeps the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

We are interested in what you think about the Court of Appeals ruling. Please post your comments.

Invoking 100-Mile Rule Could Cost a Parent Custody

2009-02-22T14:17:00.001-08:00

A recent Michigan Court of Appeals decision changed physical custody of the parties' minor child from the Mother to the Father when Mother moved from Ludington to Traverse City. Since the move was less than 100-miles, Mother believed that she did not need to seek the permission of the court to "endorse" the move. She was wrong. At the time of the impending move, Father filed a motion to modify his parenting time due to Mother's proposed move. The family court conducted an evidentiary hearing on the parenting time and custody issues because the move would have unavoidably transformed one of the parents into a "weekend parent", and also appeared to affect the "established custodial environment" which the child had in both households.

The court of appeals affirmed the family court and Father now has custody. Mother could have elected to stay in Ludington, and remain the primary custodial parent of her daughter. Instead, she chose to move to TC and lost physical custody as a result. Thus, sometimes it pays to put more emphasis on the best interests of the children than on your own personal and professional goals. This Mother probably thought she would have no problem in taking her child away from the Father. Michigan law allows the custodial parent to move up to 100-miles without the family court judge's permission.

The case illustrates how legal issues of parenting time and custody blend together and how important the location of the respective parents can be if they cannot agree on these issues and are forced to litigate them in court.

The case can be found at the following link: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20080408_C280622_31_49O-280622OPN.PDF

Same-Sex "Parenting Time" to be considered in Michigan in the Post-Adoption Context

2009-02-22T12:24:00.000-08:00

In an unusual decision by the Michigan Court of Appeals, a lesbian couple who adopted three children in Illinois in 2003, and who are now ending their same-sex relationship, will have the opportunity to present evidence to a family court judge in support of their respective claims for custody and parenting time. The decision is unusual to the extent that the Court of Appeals did not consider the transcript of the arguments made before the lower court because the appellant, representing herself without legal counsel, did not bother to file the transcripts before the appellate court.

Michigan does not recognize same-sex marriages nor can a same-sex couple adopt the same child. This case presents a procedural twist where a family court judge will now have to consider the competing claims of each adoptive parent.

The following link addresses the case in a recent article published in the Chicago Tribune:
http://www.chicagotribune.com/news/chi-ap-mi-gayadoption,0,2545662.story