Parental Divorce Reduction Act

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act.  The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics.  This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee.  For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period.  The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Many divorcing couples do not have these issues.  Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one.  On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

http://www.clarkstsonlegal.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

SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Bottom line: pay your child support obligations.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

  

Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

High Court Rules Religious Mom Can No Longer Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progress into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

www.clarkstonlegal.com

info@clarkstonlegal.com

Does the MERS Corporation Own Your Home?

The signs have been piling-up for more than a year now. Mortgage foreclosures have careened out-of-control.

The chief question in courts of law is: who owns the subject property, and can they prove it by producing a mortgage note? Increasingly, the respective answers are: “Don’t know” and “No.”

In 2010, the Arkansas Supreme Court ruled that MERS (Mortgage Electronic Registration Systems) Corporation was prohibited from filing foreclosures in that state.

A federal bankruptcy judge in Long Island ruled just last week that MERS could not act as the “agent” of the mortgage note owner. Judge Robert Grossman acknowledged in a case called In re: Agard, that MERS may be involved with up to 50% of all home foreclosures nationwide, and that his decision may negatively affect the mortgage industry (i.e. accelerate its demise), but his decision required that the process comply with federal and state bankruptcy laws.

Many MERS-held "notes" will either not materialize, or will not pass muster relative to the many networks of applicable legal standards.

The Iowa Attorney General recently announced progress, along with other state attorneys general, in conjunction with the newly established Consumer Financial Protection Bureau, to overhaul the process of how the nation’s largest banks conduct the foreclosure process.  The group essentially is a nation-wide focus group of state law enforcement officers and bureaucrats tasked to generate a list of best-practices they can mold into national standards.

In Florida, attorney and foreclosure-giant, David Stern, under investigation by the Florida Attorney General, just announced that his law firm is suspending foreclosure operations.

In Utah last month, a local judge made national headlines by allowing a judgment debtor to rip-up his mortgage note in open court and literally walk away from his home, debt-free, because the lender could not prove ownership by producing a mortgage note.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

As the foreclosure meltdown has unfolded over the past 24-months, many mortgage lenders’ practices of cutting corners in the lending process, and making some rather huge mistakes, have come to light. This has had the effect of making it difficult, and in some cases impossible, to actually prove who owns a particular home.

The early challenges from county officials in the 1990s to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet.  These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

All good things usually come to an end; sometimes a bitter end. Now, the judges in all the various courts are tipped off; and bankruptcy judge Grossman's decision may go federally viral.

Where will this all lead? Will the state attorneys general, through a new layer of bureaucracy, be able to arrest the process and introduce effective reform? Or will judges, case-by-case, reluctantly pull the threads that will undo our nation’s mortgage lending system?

Only time will tell, so stay tuned on this one.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative.   Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

State Bar Task Force Recommends Streamlining Courts System

Barry Howard (left) and Edward Pappas.

The lawyers saw it coming long ago.  With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect?  Judicial reform.

At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009.  The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.

Last week, the task force announced its findings and recommendations.  The following are the more significant findings and recommendations of the task force:

• Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs.  This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others; 
• Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels.  The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data; 
• The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence; 
• Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
• Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
• Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and 
• Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources.  A familiar song among the state workers and teachers spread throughout the counties and across the nation.

The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system.  There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.

Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case.  Usually, in a few hours, the document show-up in your email.

Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse.  As for the Wayne Circuit Court, however, not so much...

Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County.  This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.

Electronic docket access differs widely from county to county.  In Genesee, the docket entries of a case is displayed in fragmented screen images.  If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text.  A waste of paper, and definitely not user-friendly.

While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.

Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan.  From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.

http://www.clarlstonlegal.com/

info@clarkstonlegal.com