Sibling Visitation - Does it Exist?

We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce.  

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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Women Often Lose Health Insurance in Divorce

Long-term marriage has been an endangered species for some time in our society.  Couples in the United States divorce at the rate of approximately one million times each year.

Divorce is Hell for both men and women.  Even in our post-modern society, however, women still seem to get the brunt of the pain.

According to a recent study published by the University of Michigan, approximately 115,000 women nationwide lose their health insurance coverage as a direct result of the divorce process.  Of these, some 65,000 never re-gain coverage.

The study was conducted by Bridget Lavelle, a UM sociology doctoral candidate.  Ms. Lavelle examined literature and data from survey respondents who divorced between the years 1996 and 2007.  The December issue of the Journal of Health and Social Behavior will feature the study.

Lavelle postulates that women's loss of health insurance benefits is not just a temporary disruption resulting from the divorce process.  Rather, she concludes that the loss of health insurance coverage for women is a long-term problem that compounds the economic losses of divorced women.

What's worse is that mid-income women have the greatest risk of loss of coverage because they do not qualify for Medicaid or other safety-net coverage options available to lower income divorcees.

We here at the Law Blogger wonder what effect Obamacare and the Affordable Care Act will have on this equation next year when everyone must carry insurance by mandate of federal law.

When facing a divorce, if you are at risk of losing your health insurance coverage, consider demanding some form of short-term alimony payments sufficient to cover the 3-year period of COBRA available from your spouse's employer.  Or, in the alternative, shop for comparable affordable health insurance.

The short-term alimony approach will at least cover women during the initial transition from marriage when, as posited by Ms. Lavelle, they are most at risk to lose health insurance coverage, and suffer even greater economic hardships as a result.

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The Grey Divorcee

A recent study published by the Bowling Green State University concludes that divorce has replaced widowhood as the primary reason many seniors are single later in life.  No surprise there, as the United States has long held the highest divorce rate in the world.

As the baby-boomer generation ages, more of its members have been divorced than in any prior generation at any point in history.  Add to this the more complex marital biographies of average baby-boomers [second marriage, recently divorced, ever divorced], and you cannot ignore the growing prevalence of divorce in our society.

The study concludes that as widowhood has declined over the past two decades, the divorce rate among the middle-aged and seniors has doubled.  Also of note in this demographic is that, among divorced seniors, they achieved this status much earlier in their lives than in the past.

Another conclusion drawn by this study is that over the next two decades, as the growth of the "older" population accelerates, so will the divorce rate among mature adults.

One option to consider is separate maintenance.  This option, although not for everyone, has the advantage of allowing an unemployed spouse to maintain health insurance coverage.  In most cases, this saves the unemployed spouse approximately $500 per month by not having to  pay an insurance premium.

If you are over 50 and facing the tough options of divorce in Oakland County, contact us for a free consult. We can  provide you with answers to your questions and concerns.

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Double-Dipping for Alimony

The original "double-dip".

Many of us, when we think of “double-dipping,” immediately envision George Costanza nonchalantly eating chips and dip at a boring party. He bites the chip, dips, bites again, dips again, oblivious and happy.

Meanwhile, a fellow party-goer and disgusted onlooker cannot contain the impulse to put a stop to this obvious dip-contaminating behavior and confronts George. Inane hilarity ensues; check it out here.  [Note: Post-Seinfeld generation and long-time Seinfeld enthusiasts – you’re welcome.]

Double-dipping, in the world of family law, typically refers to the way assets are valued in the division of a marital estate.  A recent Michigan Court of Appeals decision, Loutts v Loutts, addresses this issue of “double-dipping” in the spousal support context.

This divorce case originated in the Washtenaw County family court.  One of the main issues in the case was how to determine an appropriate spousal support award where the marital assets included a business valued at more than a quarter million dollars.

The husband started, owned, and operated the business. When the family court awarded half of the business value to his wife, the question became: what income should be imputed to husband now that half the value of the business had been conveyed to wife?

When determining spousal support, the parties’ incomes must be determined so that the family court may decide how to equitably balance the incomes. The Michigan Court of Appeals has articulated a balancing test such that:

the primary purpose of spousal support is to balance the parties’ incomes and needs such that neither party will be impoverished, and spousal support must be based on what is just and reasonable considering the circumstances.

The family court can only perform this balance test on a case-by-case basis – typically unwilling to follow any bright-line rules for determining the rate and term of a spousal support award.

The family court in Loutts, after awarding wife half the value of the business, imputed approximately $130,000 income to husband.  This imputed income was utilized to “equitably balance” the incomes of the parties.

In doing so, the family court judge relied on case law to determine that “the value of a business may be used for the purpose of either property distribution or spousal support, but not both.” On appeal, wife argued that the court should have used the full-value of the business in determining her spousal support award.

The Court of Appeals disagreed, remanding this issue back to the family court for a re-determination of spousal support based upon the specific facts and circumstances of the case.  In their opinion, the Court of Appeals stated that the trial court’s reliance upon the Heller v Heller case was misplaced to the extent that, “the appellate court stated that its determination that a double-dip was inequitable was based on the facts of that case alone and was not a determination that double-dipping is never permissible.”  [The emphasis is ours.]

The obvious "take-away" from this recent case is that, when it comes to determining spousal support, bright-line rules simply do not apply. Rather, the family court judge should consider a variety of factors, including: the conduct of the parties, their ability to work, their ages, needs, health, present situation, prior standard of living, ability to pay alimony, and general principles of equity.

Double-dipping might be ok – given specific factual and equitable circumstances.  Exactly what those circumstances are remains a fuzzy, mutable, arguable enigma, ripe for the art of legal persuasion.

The one constant is that each case before the family court is unique and should be considered so by the judge.

Also of note in the Loutts decision is that the Court of Appeals wasted no time in upholding a 3-year non-compete provision that applied to the business and to which wife agreed, but appealed.  The Court held that you get what you bargain for.

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Former Lesbian Finds Religion Kidnaps Child

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This case from Vermont displays some of the worst features of a parent taking family law into her own hands.  It is one thing for a parent to denounce her same-sex union and her lesbianism; it is entirely another to then plunge into a "born-again" culture, kidnapping her child to Central America and removing her from the other legal parent.

The case of Lisa Miller, Janet Jenkins and their 10-year old daughter, Isabella, is in the headlines as the Mennonite pastor that assisted Miller in fleeing the country goes on trial today in federal court in Burlington, Vermont.  No one knows where Miller and Isabella are today; Jenkins has not seen her daughter in over 3-years.

The civil union between the two women began to deteriorate 8-years ago when Miller denounced lesbianism in favor of her born-again conversion into a conservative Christian sect known as the Beachy Amish Mennonites.  Miller moved with Isabella to Virginia to be near church headquarters and tried to terminate Ms. Jenkins' parental rights.

The resulting protracted family court battle, waged in two state courts, resulted in an order of the Vermont Supreme Court granting custody to Jenkins; the Vermont ruling was honored and upheld by the courts in Virginia, where Miller tried to plead her cause.

Apparently, Miller had a change-of-heart regarding the family she created with Jenkins, and the lifestyle to which the parents belonged.  Once Miller "found God" within the conservative Christian Mennonite sect, she saw lesbianism as an "addiction" and found her partner to be an unfit parent who would not be allowed into heaven because she lived, in sin, with women.

At that point, as is so often the case with folks who find religion later in life, no laws of man or high court rulings could hold her back from her religious convictions.  In Virginia, Miller was employed for a time at Liberty Christian Academy, a school with close ties to Liberty University, the conservative christian college founded by Jerry Falwell.

Miller was represented in the family courts in the two states by lawyers from the Liberty Counsel, affiliated with the Liberty University's School of Law.  Her lawyers took the position that Virginia law, not Vermont law, should apply to the custody dispute in this case on the basis that the latter state "recognized as a parent a person that is not a parent", contrary to "biblical truths."  Virginia does not recognize same-sex unions as Vermont does.

Nevertheless, the Virginia family court and appellate courts ultimately ruled that Vermont properly had jurisdiction of the case.  When the Vermont family court judge ordered a parenting schedule that Miller refused to follow, he changed custody of the child to Jenkins in Vermont.

Shortly after this custody ruling, Miller disappeared with her daughter to Nicaragua.

Stay tuned to see how the federal jury that is being selected today in Virginia decides the fate of the local pastor that assisted Miller with fleeing the country, and whether Miller and her daughter will ever turn-up.

Clashes over child custody, lifestyle and religion; this case features all that and then some.  But we here at the Law Blogger must insist that it is never a good idea to take the law into your own hands.  That principle holds true whether you are the parent, or the pastor.

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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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Military Divorce: Part I

This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military.  With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist. 

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first.  What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act (USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse. 

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery. 

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.

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