Saturday, September 28, 2013

Triple Marriage & Double Divorce With Same Husband Confuses Paternity

Rare is the couple that marries, divorces, re-marries, gets divorced a second time, then re-marries for the third time.  Add a bouncing baby boy born somewhere between the second and third marriage, possibly sired by another man, and what do you have: a rare hot mess.

Rarer still is an appeal decided by a 3-judge panel of the Michigan Court of Appeals, with each judge writing separately.  In Sprenger v Bickle, the dismissal of a putative father's paternity and custody claim was affirmed through a lead opinion authored by the presiding judge, a concurring opinion bringing up alternative rationale, and a 14-page dissenting opinion.

The triple opinions demonstrate how judges hold significantly different views on the standing of a putative father to bring an action under the Paternity Act or under the new Revocation of Paternity Act.  The three opinions also demonstrate how courts struggle mightily with the factual curve-balls pitched to them by creative paternity litigants.

In this case, John Sprenger impregnated a married woman and, after the birth of his son, sued for paternity under the paternity act just prior to its legislative revocation.  Sprenger's on-again-off-again relationship with the boy's married mother, Emily Bickle, took place during a bizarre period in the mother's life when she twice divorced, then twice remarried her husband; the child was born in the woman's most recent married stint.

The majority upheld the family court ruling that the biological father lacked standing solely on the basis of mother's marital status and on grounds that neither the mother nor her husband challenged the boy's paternity to rebut the presumption of his legitimate birth.

In his dissenting opinion, Judge Mark Boonstra focused on the unusual marital and relationship statuses of the three parties, and conducts a tour-de-force on the legal concepts of standing and paternity.  Judge Boonstra correctly concludes that dismissal of Sprenger's claim should not be affirmed but rather, the case should be remanded to the family court for further discovery and an evidentiary hearing on:
  • the precise date of conception; 
  • whether Mother was "incapable of procreation" at that time; 
  • what representations were made by the Bickles to the family court during their second divorce proceeding; and perhaps most significantly, 
  • DNA paternity testing.
Since his first case was filed in the Benzie County Family Court under the old Paternity Act, Mr. Sprenger has re-filed the case under the new law, i.e. the Revocation of Paternity Act.  This case too was dismissed, much on the same grounds as his first case.  Not surprisingly, Sprenger has appealed that case too; he's not taking this sitting down.

A decision from the Court of Appeals on Sprenger's second case could come early next year.  Meanwhile, Sprenger has yet to parent his son.



Saturday, September 14, 2013

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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info@clarkstonlegal.com

Tuesday, August 20, 2013

Same-Sex Divorce Could Require Moving Out-of-State

When our SCOTUS recently struck-down the Clinton-era Defense of Marriage Act, and also held that California's prohibition on same-sex marriage was unconstitutional, proponents of same-sex marriage understandably hailed the decisions as a victory.  Now that the dust has began to settle in these seminal cases, some of the fall-out is going to affect the inevitable divorce proceedings arising from failed same-sex relationships.

The corollary to same-sex marriage, however, is same-sex divorce.  In some cases, when a same-sex couple is married in one of the dozen jurisdictions that recognize same-sex marriage, then moves to a state that does not recognize such nuptials, difficulties arise when the relationship fails.

This is because when you are a same-sex couple, you cannot just get divorced in a state that does not recognize same-sex marriage.  And most states that do recognize same-sex marriages require a minimum residency requirement from 6-months to a year.  Sometimes, moving to another state simply to get a divorce is not a viable option.

Once a same-sex couple splits-up without a divorce certificate, remarriage becomes a legal impossibility.  Bigamy is a crime in all states; you cannot be married to two persons at once.

This common problem highlights one of the major difficulties in the lag between states that recognize same-sex marriages and those that do not recognize such relationships.  Although the federal government must recognize same-sex marriages for purposes of benefits and entitlement  programs, it is state laws that control who is, and who is not, legally married.

Divorce, already a daunting prospect for both heterosexual and same-sex couples alike, is made more difficult without clear legal exit strategies.  Today, Wyoming is the only state that does not recognize same-sex marriages, but will allow a legally married same-sex couple to get divorced.

A pair of same-sex divorce cases in Texas, where the Texas Attorney General is opposing such divorce proceedings, are grinding through that state's appellate courts and could provide the opportunity for the SCOTUS to build on its ground-breaking decisions from last term.

But all that is a long-way off for same-sex couples whose relationships have failed.  The bottom line is that same-sex marriages are not treated the same as traditional couples; it will likely take generations for that to occur.

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Thursday, July 25, 2013

On The Custody of Cryopreserved Embryos

By:  Timothy P. Flynn

Now here's a sticky one.  What does an unmarried couple do with their fertilized and cryopreserved embryos when they break-up?

That was the question of first impression posed to a panel of the Illinois Court of Appeal's Second Division in Jacob Szafranski vs Karla Dunston.  The in vitro fertilization case from Chicago involves the custody of frozen pre-embryos [female ova fertilized by male sperm] following dissolution of the progenitors' relationship.

In the spring of 2010, Ms. Dunston was being treated for cancer via chemotherapy, which jeopardized her fertility.  As a result, Dunston requested that Szafranski, with whom she was in a relationship, donate his sperm from which her ova could be fertilized.  He agreed and the IVF embryos were created and frozen.

Prior to this process, the couple executed the fertility center's standard "Informed Consent for Assisted Reproduction", and obtained [but did not execute] a separate "co-parent agreement" prepared by an attorney.  The former document acknowledged that the law regarding custody of the fertilized eggs is in flux; the latter document provided that Ms. Dunston would be granted custody of the eggs in the event the couple split-up.

Szafranski got cold feet right away and texted a break-up message to Dunston.  Not only were they through as a couple, he sued her for custody of the embryos in the Cook County Circuit Court claiming that he did not wish to be forced into fatherhood.  This draws her ire as well as a three-count counter claim seeking a declaratory judgment for sole custody and control over the embryos pursuant to the [unexecuted] co-parenting agreement contemplated by the parties.

The trial court judge awarded the fertilized eggs to girlfriend.  Boyfriend appealed the decision claiming his rights to privacy are implicated by any use of the embryos under the United States and the Illinois Constitutions.  He asserts that his privacy rights require his consent prior to any use of the embryos.

To reach its decision to reverse the trial court and remand the case for further evidentiary proceedings, the Illinois Court of Appeals first took a tour de force of our nation's common law regarding the three methods used to determine custody of cryopreserved embryos: the contractual approach; contemporaneous mutual consent; and the [always useful] balancing test.  In the end, the appellate court opted for the contractual approach when applicable and the balancing test in the absence of a contract.

Under the contractual approach, a majority of jurisdictions would honor and enforce the terms set forth in an assisted reproduction contract.  The mutual consent approach, on the other hand, provides for the possibility of one of the progenitors changing his or her mind regarding the ultimate use of the cells.  So far, only Iowa has adopted this method of embryo custody determination.

The balancing test approach is a hybrid, considering all the terms of the executed contract, if any, but also weighing the respective interests of the progenitors.

In this case, the appellate court wanted more information about the parties' intent and their agreement surrounding the IVF process that took place.  So the case has been remanded to the trial court for additional proceedings.  A careful read of this opinion has us thinking that the appellate court was looking for the assent of the parties, as expressed in a contract.

Who do you believe should have custody, possession and control over these frozen zygotes?  How do you think the courts in Illinois will ultimately decide this case?

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Tuesday, June 25, 2013

Grandparents Lack Standing When Parental Rights Are Terminated

By: Amanda Chapman

A recent 2-1 Michigan Court of Appeals decision published earlier this month, Porter v Hill, ruled that when a “natural” parent’s rights to their child are terminated, the grandparents rights are terminated along with the parents.  This ruling seems to conflict with the Child Custody Act.

The heart of this controversial ruling centers on the definition, or lack thereof, of “natural” parent vs “legal” parent.  At least for now, grandparents are out-of-luck, and this ruling will inflict some pain on select families.

In the Porter case, the bio-Mom and Dad were married with two children.  Mr. Porter’s parental rights to the children were involuntarily terminated as a result of physical abuse.  The parties were subsequently divorced.  Mr. Porter passed away, and his parents (the children’s paternal biological grandparents) then filed suit in Saginaw Circuit Court for grandparenting time with their grandchildren. 

Mother filed a motion for summary disposition, attempting to keep her ex-husband’s parents from establishing rights with her children.  Mother’s legal theory was that the grandparents did not have standing, or a legal cause of action under these facts. 

Mother’s dispositive motion asserted that when father’s parental rights were terminated that, in turn, meant that any rights grandparents may have had under the grandparenting provisions of the Child Custody Act had been severed as well.  The trial court reluctantly granted mother’s motion for summary disposition, openly acknowledging this case would be appealed to the Supreme Court. 
   
It is important to note that no determinations have been made, either in the trial court or the appellate court, as to the relative fitness of the Plaintiff-Grandparents, or whether granting grandparenting time would be in the best interests of the children.

A summary disposition motion is a dispositive motion that attempts to dismiss the case before it proceeds through discover and onward to trial.  The only question considered in this instance was whether the grandparents had a legal cause of action (otherwise known as “standing”) to bring the case in the first place.

Michigan’s Child Custody Act includes a section pertaining to grandparenting time which provides that
[a] child’s grandparent may seek a grandparenting time order under 1 or more of the following circumstances:…  (c) The child’s parent who is a child of the grandparents is deceased.
The statute defines “parent” as “the natural or adoptive parent of a child.”  “Grandparent” is defined as “a natural or adoptive parent of the child’s natural or adoptive parent.  
The Court of Appeals affirmed the family court’s decision, holding:
Russell was not a legal parent of the children…  Plaintiffs, as Russell’s parents, derived their rights as grandparents through him. 
The court further stated that
it would be anomalous for the Legislature to authorize a court to terminate a person’s parental rights based on abuse but then to somehow “revive” those rights for purposes of grandparent visitation.
Interestingly, Judge Mark Boonstra authored a dissenting opinion.  First, Judge Boonstra noted that:
[T]he Legislature’s use of the phrase natural parent and its affording to a grandparent of a right to seek grandparenting time independent of parental rights and notwithstanding parental desires…indicate both the plaintiffs …substantial interest in this case and that the statutory scheme at least implies that the Legislature intended to confer standing on the plaintiffs.
Next, Judge Boonstra pointed out that the statute:
permits a ‘natural parent’ of a ‘natural parent’ to seek grandparenting time…and there is no dispute here that plaintiffs were the ‘natural parents’ of Russell. The only question before us, therefore, is whether Russell was a ‘natural parent’ of the minor children.
The dissent further goes on to elucidate the fact that the Child Custody Act does not provide a definition for natural parent.  The words of a statute provide the most reliable indicator of the Legislature’s intent and should be interpreted on the basis of their ordinary meaning and context in which they are used.   An undefined statutory word must be accorded its plain and ordinary meaning…    

In Porter, the grandparents argued that natural parent should be interpreted as equivalent to biological parent.  The dissenting opinion supports this interpretation on the basis of the plain and ordinary meaning of the word “natural” according to the Random House Webster’s College Dictionary (1991) which defines it as “related by blood rather than by adoption.”  Further, the dissent goes on the use Black’s Law Dictionary (9th ed) definition of “natural” as “relating to birth” as in a “natural child as distinguished from [an] adopted child.”

The majority opinion based their ruling on equating a natural parent to be the equivalent of a legal parent.   Yet, the dissent astutely pointed out that the basis of such a determination does not coincide with the plain and ordinary meaning of the word term “natural,” and in fact the term is much more in-line as being similar to plaintiffs’ proffered “biological” term.  The dissent contends that “natural parent must connote something more and different than simply having “legal” parental rights.”

Some local family law lawyers have opined that the majority of the Court of Appeals got this one dead wrong.  For now, however, the majority decision stands.

In its decision, the intermediate appellate court asks the Legislature to clarify their intended meaning of the term natural parent; let's not hold our breath.    


Thursday, June 6, 2013

Collaborative Divorce Software

Michelle Crosby of Wevorce
The collaborative divorce method is where a married couple, either by themselves or with the assistance of professionals, agree upon the terms of their divorce judgment prior to filing for divorce.  The theory is that, without the adversarial pressures of the family court and the "system" [i.e. Friend of the Court], these parties are free to explore and negotiate options that make sense for them, not the Court and the lawyers.

Professional assistance usually takes the form of divorce lawyers, counselors, church leaders, and now, specialized collaborative divorce software known as Wevorce.  This West Coast start-up was founded by Michelle Crosby, a product of the old-school divorce process.  Introducing her divorce tool product on the company website, Ms. Crosby tell us that her parents waged a 15-year war over her parenting time.

According to the ABA Journal, the "up-front" cost to purchase the software for a family is about $6500; many individual spouses would spend north of $5000 on divorce lawyers, each, depending on the case.

The idea behind the cloud-based software, not yet available here in Michigan, is to prompt the divorcing couple to "populate" their divorce documents with customized and customizable clauses on the usual divorce issues of child custody, support, parenting time and division of the marital estate, both assets and debts.  The philosophy embedded into the software is taken from the collaborative divorce process: discuss and negotiate prior to a formal divorce filing so that when the official pleadings are filed, it's already a "done deal", presumably with a signed settlement agreement or judgment of divorce.

While the price and the process sure is alluring, it is not for everyone.  Some couples will not be able to put their deep-seated differences aside to accommodate this software any more than they can sit through a series of marital counseling sessions.

It is nice, however, to have a collaborative model available to those couples that do not wish to spend the children's college savings on attorneys.  We shall see whether the Wevorce software ever becomes available here in Michigan.

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Thursday, May 23, 2013

Medical Marijuana Parent Not Disqualified for Custody

Like with the use of any other prescription medications, a parent who uses medical marijuana is not disqualified from custody in a family court according to the Michigan Attorney General.  If the pot-medicating  parent, however, exhibits behavior that is unreasonably dangerous to a minor child, the immunity provided by the Michigan Medical Marijuana Act [MMMA] may not be available.

Attorney General Bill Schuette was asked for an advisory opinion by State Senator Rick Jones (R-Grand Ledge) on the issue of whether the MMMA can be invoked by a parent who is the subject of a child protective proceeding, and what constitutes behavior creating an unreasonable danger for a minor child.

In a well-crafted 17-page opinion, the AG zeroed-in on the specific provision of the Act dealing with pot and  children, and noting the exception to that provision.  Section 4(c) of the MMA states:

A person shall not be denied custody or visitation of a minor for acting in accordance with this Act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

As for what type of pot-related behavior constitutes the creation of such an unreasonable danger, the Act does not say.  According to the Attorney General, an individual assessment would need to take the specific circumstances of the parent and child into account.  Certainly, things like substance abuse and addiction are legitimate inquiries relative to a juvenile protective or custody proceeding.  The MMA will not provide immunity in a family court from taking such things into account.

AG Schuette opined, "the medical use of marihuana alone does not create an unreasonable danger to a child."   Schuette cautioned in the opinion, however, that if a parent's use of marijuana negatively impacts that parent's ability to properly care for a child, it could be part of the overall custody assessment.

Germane to a custody investigation is whether the parent, while high, is sufficiently functional and thus capable of parenting a minor; the child's age is an important factor; whether, once high, the parent can drive the child to safety if an emergency arises; and does the child have asthma that could be affected by second-hand marijuana smoke.

These are a few of the concerns we conjured up over here at the electronic divorce lawyer.  The best course of action, we think, is not to get high, or  take other mood altering substances, around your children.

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