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

By:  Timothy P. Flynn

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

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

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

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

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

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

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

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

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

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Divorce: There's An App For That Too

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

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

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

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

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

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

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

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Stepparent Adoption Complicated by Legal Custody Label

By: Amanda Chapman

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

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

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

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

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

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

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

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

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

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

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

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Student Loans and Divorce

There are two ways we have seen student loan debt affect divorce proceedings.  One scenario is where the divorcing spouse, usually a newly-minted professional, has accrued a significant debt balance well into the six-figures; as much as $200,000 in the case of a medical degree.

The other is where the student children of a divorcing couple have accrued the debt and one or both of the parents has co-signed on the loan.  These days, there are no job guarantees whatsoever for the graduates, regardless of their GPA or skill set.

When an engaged couple with student loan debt begins to plan for marriage, those plans often include addressing one or both partners' student loan debt.  If either spouse has significant debt, a prenuptial agreement should be considered.

A prenuptial agreement is a contract entered into by both partners, each with independent legal counsel and review, following a full-disclosure of all assets and liabilities.  This agreement is triggered by the death of either party or a divorce.

One of the primary considerations in a situation featuring significant student loan balances, is whether marital funds will be expended to pay back a student loan.  Another important factor for consideration is whether one spouse supports the other while a professional degree is earned during the marriage but also where that degree is financed through student loans.

A prenuptial agreement can address these issues.  Both existing and inchoate debts can be covered within the scope of the agreement.

In the other scenario arising with some frequency these days, a spouse co-signs a student loan for one of the couple's children.  If the student is unable to begin making payments after the grace period expires, the co-signing spouse becomes liable and it is a marital debt issue in the divorce.

Generally, the student loan debts of a couple's emancipated children are not marital debts within a divorce proceeding.  Only when a parent co-signs does this become problematic, especially when the co-signing parent is not the primary bread-winner.  Who pays back that debt if the student cannot?

Before a parent co-signs on a student loan, some thought should be given to the overall health of the marriage and whether it is wise to complicate the marital estate with such contingent liabilities.

If you are struggling with such issues, our law firm offers a free consultation that can provide you with some guidance with these tough decisions.

Side Note:  Here is a link to a post from the Law Blogger from last summer on a related student loan issue.

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Contempt in the Family Court

Just prior to the July 4th holiday, the Michigan Court of Appeals decided an unpublished case that has caught our eye.  This case, Klass vs Klass, details the custody battle of a family from Midland County.

The case is notable, not because of the incredible dysfunction demonstrated by the parents of the minor children, particularly the mother, but because the guts of this 10-page decision lays out the legal background behind the "contempt of court" sanction in the context of family court.

This blog has noted a trend of recent Court of Appeals cases holding that a parent's selection of a "significant other" can be greatly regulated by the family court.  If a parent elects to ignore a family court's ruling, that parent, as in this case, can be jailed and fined.  These rulings will be upheld by the Court of Appeals.

As a divorce lawyer with 24-years experience, I realize that parents often do not "play fair" in the family court system, and even good parents sometimes lose sight of the true best interests of their children.  It's one thing, however, to have a legitimate difference of opinion as to those interests; it's another thing altogether when a parent places their own interests above those of the children.

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Divorce in the UK: Plenty of Fault to Go Round

London, England Divorce Attorney 
Vanessa Lloyd Platt

Here in Michigan, we have a "no fault" divorce system.  In many ways, the divorce process has been transformed into a largely administrative process that takes place outside the courtroom; this is a good thing.

In the UK, from where our common law system is derived, the divorce process remains fault-based.  Courtroom prowess is purchased in order to convince others to take of dim view of one's spouse.

Sunday's NYT profiled an already high-profile UK divorce attorney; Vanessa Lloyd Platt.  Although below the fold in Easter Sunday's paper, Ms. Platt, who practices in London, England, was nevertheless on the front page in an article featuring the fault component to the UK's divorce laws.

While most experienced divorce lawyers could, "write a book", Ms. Lloyd Platt's "war stories" are remarkable.  Take, for example, the client who sought a divorce because her husband demanded she dress and speak Klingon.  Yep, or the client that sued because his wife would only serve him his least favorite dish, tuna casserole, for month's on end.  Yum, and then there was the husband that refused to speak with his wife for 15-years, communicating solely via post-it notes.  Note to hubby: "get a life".

The family court judges in counties throughout Michigan would not care to hear such drivel.  Their UK counterparts, however, are compelled to sit through the details in order to assess fault in their divorce cases.  This feature of the storied UK legal system was the subject of some recent criticism propounded by Judge Mathew Thorpe, sitting on London's Court of Appeals.

The Court of Appeals judge was perhaps prompted to make the critical remarks on the record when forced to review a case that featured: alleged tampering with a television antenna; control of the household washing machine; and the wife's "revulsion for intensely farmed meat."

The legal issue in the case involved the existence of "fault" as a legal basis for a judgment of divorce.  In the UK, a divorce can only be granted upon an evidentiary showing that one of several categories of fault is established by the spouse lodging the divorce proceeding with the court.  In other words, they take the plaintiff's burden of production and persuasion seriously across the pond.

In turn, Judge Thorpe's remarks may have emboldened Ms. Lloyd Platt to lead the drive to chuck the "old-school" requirement of demonstrating fault in a divorce proceeding.   The London lawyer's campaign has included a published list of some of the most outrageous and remarkable cases of fault she and her UK colleagues could conjure.

The no-fault system works very well.  Our county family courts here in Michigan are well served by devoting scarce judicial resources to a determination of the "best interests" of the parties' children and an equitable property settlement.  There should be no occasion to air the details of a beauty contest turned pissing match.

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

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