Custody Bills Protect Soldiers

Yesterday, Governor Snyder signed Senate Bill 09 and tied barred House Bills 4071 and 4482 which provide protections for active service members involved in family court child custody proceedings.  The Senate bill stays custody proceedings during a service member's deployment while the House bills provide similar protection relative to court-ordered parenting time.

The new legislation simply amends the Child Custody Act, an oft-amended piece of legislation. The amendments provide service members protection in the form of a stay of proceedings until the period of deployment ends.

In order for the service member to avail himself or herself of the protections of the new laws, that service member must request the stay from the family court. In cases of emergency, a family court judge would still have the power to modify the custody or parenting time of a minor child.

These bills received unanimous support in both legislative chambers, perhaps due to the case of an active duty father who temporarily lost custody of his child while on a 6-month submarine deployment for the U.S. Navy in the Pacific Ocean.

If you or a family member are active duty military and need assistance for a family law matter, contact our law firm for a free consult. We provide fee discounts for active military.

www.clarkstonlegal.com
info@clarkstonlegal.com

Active Military Duty Mom Loses Custody via Court of Appeals

Here is a tough choice: to serve your country through military service, or to continue being the primary care provider for your preschooler.  That is the decision a Wayne County mother had to make recently as she contemplated her options in family court.

In 2007, the Child Custody Act was amended by our state legislature to protect active military parents.  The amendment to the statute states in relevant part:

If a motion for a change of custody is filed during the time a parent is on active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

In the Wayne County case, father filed a motion to change custody in response to mother's intent to change her domicile to another state; the state where she would eventually begin her deployment with the U.S. Army.

Hearings were conducted in the Wayne County Family Court which resulted in the family court judge ruling that father should have "temporary physical placement"; a new phrase in our custody parlance.  Apparently, the Court of Appeals agreed, finding in Kubicki v Sharpe that the dispute hinged on precisely when Mother's "active duty" commenced.

Does "active duty" mean: upon enlistment; upon commencement of basic training; or upon deployment?  The intermediate appellate court took a pass on deciding the meaning of this term in the Child Custody Act by ruling that father's custody motion was filed prior to mother's enlistment.

We here at this blog think it a shame that this decision was not made with better clarity.  An excellent opportunity was lost that could have provided some much needed certainty for those willing to serve our country through the military.

Clear as mud, the Court of Appeals took the opportunity to remand the case back to Detroit so that the family court judge could ascertain the child's reasonable preference.

Collateral note: the case is also instructive for language that the moral fitness of the parties, a custody factor in the Child Custody Act, does not include the moral fitness of one of the parties spouses, in this case, mother's husband who was recently convicted of domestic assault against the mother.

www.clarkstonlegal.com
info@clarkstonlegal.com

Lawyers Should Not Interview Children in Custody Disputes

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares.  Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents' lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute.  According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody.  One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews.  The 3-judge appellate panel's opinion stated, "these interviews are meant to be confidential exchanges between the court and the child."

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule.  Forcing a child to state her preference in an interview with her parents' respective advocates is wrong in the worst kind of way.  No child should have to deal with his or her parents' lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil.  Here at this blog, we saw this case as a "no brainer".  Parental advocates should not be used to determine a child's reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.

www.clarkstonlegal.com
info@clarkstonlegal.com

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 (9^th 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.    

www.clarkstonlegal.com

info@clarkstonlegal.com

Divorce Judgments & International Child Abduction

Divorce lawyers will be adding additional required language to their judgments of divorce and parenting time provisions dealing with removing minor children to certain countries.

Recent Michigan legislation enacted on January 9, 2013, requires that parenting time provisions, most often found in judgments of divorce when minor children are involved and legal documents required in resolving custody disputes, must contain additional language addressing the prohibition on exercising parenting time in a country that is not in accord with the Hague Convention on the Civil Aspects of International Child Abduction.

The legislation, Public Act 600 of 2012, amends the Child Custody Act, MCL 7.22.27a, and requires the inclusion of specific proscriptions or a written consent by both parents, relative to removing the minor children to a country that has not signed the Hague Convention.   

Divorce attorneys must ensure that their judgments and parenting time documents now contain the required language.  The new required language is a simple addition and addresses a very important, and often overlooked, issue when it comes to parenting time taking place in another country.

We here at the Electronic Divorce Attorney recommend clicking on the following link to obtain more specific language about the Hague’sChild Abduction Section.  For information regarding the signatory countries to the Hague Convention on Civil Aspects of International Child Abduction, check out the State Department website.

If you are handling your divorce or custody case without a lawyer, the State Court Administrative Office (SCAO) website has updated Michigan forms (FOC 67 and FOC 89) that include the newly required language. 

www.clarkstonlegal.com

info@clarkstonlegal.com

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.

www.clarkstonlegal.com

info@clarkstonlegal.com

Fathers See Gains in County Family Courts

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.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

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

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.

info@clarkstonlegal.com

www.clarkstonlegal.com

Family Court's Custody Rulings Must Cite Findings

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.

info@clarkstonlegal.com
www.clarkstonlegal.com

2009 Michigan Child Custody Update

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.

info@clarkstonlegal.com
www.clarkstonlegal.com