Alcohol Abuse Results in Parenting Conditions

Earlier this month, the Michigan Court of Appeals addressed alcohol abuse and parenting conditions in a rare published opinion; rare in that parenting time appeals do not get published very often. This case, Kaeb v Kaeb, comes to us from Ottawa County Family Court and sheds some light on the proper way in which to conduct an evidentiary hearing seeking a modification of the parenting schedule.

Like many cases we see, the parents in Kaeb were litigious, going back to court following the entry of their judgment of divorce, in order to modify their custody and parenting arrangements. Mother alleged Father was an alcohol abuser and compulsive gambler; she alleged this conduct affected his ability to conduct proper parenting time.

Apparently, at his lowest point during their divorce proceedings and at the nadir of his alcohol abuse, Father agreed to a small amount of supervised parenting time. As he addressed his demons over time and climbed onto the sobriety wagon, he eased into increased contact with his minor children. Eventually, Father sought to modify his parenting schedule by removing the conditions that he attend regular AA meetings.

When such cases reach a critical juncture, the family court often holds an evidentiary hearing where each side can put evidence [in the form of testimony and documents] into the record to support their contentions. Only evidence about events and circumstances that occurred since the entry of the court's last parenting or custody order is relevant and thus admissible.

Accordingly, in support of his motion, Father submitted a psychological evaluation and a letter of discharge from his therapist.  While Father testified that he was in compliance with the court's prior order by addressing his alcohol abuse and attending AA meetings, he also may have been able to take advantage of a therapeutic alliance with his counselor.

Shortly after the entry of the court's prior order placing conditions on his parenting time, for example, Father generated a letter from his therapist stating there was no clinical need for him to attend regular therapy sessions or AA meetings.  Also, Father did not produce AA "sign-in" sheets at the hearing, only his self-serving testimony about attending the meetings.

The family court was troubled by this sketchy record, concluding that Father was in compliance with its previous orders. But the court did not find that Father satisfied the evidentiary burden of demonstrating a proper cause or a "change in circumstances" to justify any modification of previously imposed conditions to his parenting time. Further, the family court sanctioned Father for attorney fees in bringing what it characterized as a frivolous motion.

In reversing the family court, the Court of Appeals noted that this case did not involve a change in custody or a change to the established custodial environment. Rather, the appeals court viewed Father's burden in the context of modifying a condition to his parenting time.

www.clarkstonlegal.com
info@clarktsonlegal.com

When Father is Relegated to the Weekend Parent

By: Timothy P. Flynn

A case that caught our attention from the Michigan Court of Appeals last month deserves mention in this blog.  The case comes from the St. Clair County's Family Court; the family court judge that ruled in Mother's favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.

In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child's week-on-week-off parenting schedule, allowing Mother to move with the child from Bay City to Troy.  The parenting schedule was modified so that Mother had the child during the school year and Father had evey-other-weekend.

In doing so, the family court judge was in part swayed by Mother's testimony that the move allowed her to be a "stay-at-home" mom due to her husband's new job.  The effect of the ruling was to relegate Father to a weekend parent.

Even though the move was not more than 100-miles [a statutory threshold], the family court held that it was significant because it involved a change in school districts for the child, and made the alternating weekly parenting schedule untenable.  The lower court concluded the proposed move was in the child's best interests, and Dad lost out.

In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear and convincing evidence]; and b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.

The burden of proof is significant in cases like this.  Mother's motion, if decided on a preponderance standard, is easier to establish and thus prevail.  If Mother had the heightened burden, the motion is more difficult to carry.

As for lying to the court about her job, that too should be taken into account.  On remand, however, the Court of Appeals noted that the lower court should also take into account the fact that the child was allowed to continue living with her Mother in Troy during the year this case took to decide on appeal.

Custody of our children, much like the possession of chattel, seems to be driven by the age-old principle: possession is nine tenths of the law.

www.clarkstonlegal.com
tflynn@clarkstonlegal.com

Senate Bill Impugns Medical Marijuana for Custodial Parents

Over the five years since Michigan's Medical Marijuana Act was passed through voter initiative in November 2008, we've had many cases in family court where a parent's medical marijuana use was raised as an issue in the case.  Generally, family court judges do not shine to pot smoking parents.

Now, the Michigan Senate has taken-up the cause with a bill introduced by Senator Rick Jones, a former Sheriff from Eaton County.  The bill, enrolled in the Judiciary Committee, gives a family court judge the power to review a parent's pot use, even when sanctioned by a properly issued medical marijuana card.

If passed, Senate Bill 736 would provide that when a judge makes a finding that a card-carrying medical marijuana patient's use of pot interferes with that parent's ability, judgment, or skill to parent her child, then the judge could order any of the following remedies:

• Compel the patient to execute a release so the court could review the underlying medical condition on which the medical marijuana card is based, and allow the court to examine the relationship between the patient and the qualifying physician that endorsed the parent's pot use; 

• Compel the parent to submit to an independent medical examination to determine whether the parent's continued use of medical marijuana remains necessary or whether an alternative medication would be in the "parent's best interest"; [Wow]

• Enjoin the parent from the continued use of medical marijuana if, upon the court's review of the parent's medical records, it appears that continued use of medical marijuana is not in that parent's best interests; [also Wow]

• Allow the parent to continue her use of medical marijuana under the "qualified physician's directive", and under the continued review of the patient/parent's medical records for the duration of the custody case, "to determine whether there is reason for concern" that the parent's continued use of medical marijuana interferes with that parent's ability, judgment, or skill to parent the child; and 

• The ominous "catchall" of issuing, "any other order that the Court considers necessary that is otherwise within the authority of the court in the best interests of the child."

Putting a medicated parent under the microscope in family court is nothing new.  But this proposed legislation, which we here at this blog do not see passing, would drag the family court judge and the treating physician into the medical marijuana arena.

In the unlikely even that this bill passes into law, just sit back and watch the sparks fly...

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

Six Holiday Parenting Tips

This is a seasonal re-post from last December.  The suggestions apply to divorced or separated families this time of the year.


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

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

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

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

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

Post Note: For another local attorney's take on this subject, take a look at our friend, Henry Gornbein's post in the Huffington Post Divorce Blog.

www.waterfordlegal.com

info@waterfordlegal.com

Six Holiday Tips for Divorced Parents

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

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

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

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

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

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

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