UPDATES IN MICHIGAN FAMILY LAW

Important Ramifications for Step-Parent Adoptions in New Decision

In an astonishing opinion released on April 18, 2013, In the Matter of AJR, Docket No. 312100, [For Publication], Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption statute, MCL 710.51(6), where the parent objected to termination of his parental rights and had joint legal custody under a judgment of divorce. What made the opinion so stunning was the Court of Appeals’ statutory interpretation of MCL 710.51(6). What a difference a word makes . . .

The COA held that because the child’s biological father shared joint legal custody with the mother, his parental rights could not be terminated pursuant to MCL 710.51(6) to make way for a step-parent adoption without his consent.

I have just never thought about MCL 710.51(6) in this way—I’ve never parsed it out in this manner. Even Respondent Father’s trial attorney did not raise this objection in the trial court. When the issue was raised on appeal, rather than refusing to consider the unpreserved issue for appeal, the COA said this:

Son of Citation Machine | Easy, Proper Citations of all Kinds of Sources

 

 

 

 

Wow! What a cool item for Jeanne's Toolbox. "Son of Citation Machine" provides lawyers and professional researchers with a very easy way to cite the resources that they use in proper form. You may choose your "style"--MLA, APA or Chicago Book of Style (15th Ed.) Use this online citation creator to cite authorities in briefs, journal articles, books, etc.

Renter Who is Victim of Domestic Violence May Break Lease

A 2010 Michigan statute permits a tenant who is at risk of domestic violence, sexual assault or stalking to be released from a rental obligation. The tenant seeking release must provide notice of "intent to seek a release and written documentation that the tenant has a reasonable apprehension of present danger to the tenant or his or her child from domestic violence, sexual assault, or stalking."

The documentation that may be submitted includes a personal protection order, a criminal "no-contact" order, a police report that resulted in a criminal charge filed within 14 days of the notice to the landlord, or a form submitted by a qualified third party verifying a threat of present danger. A qualified third party includes a domestic violence or sexual assault counselor, health professional (medical or mental health), or clergy member. The statute contains specific definitions of the term "qualified third party."

Once documentation is submitted, the tenant will be released from her obligation to pay rent on the first day of the second month that rent is due after notice is given. The release takes effect when the tenant vacates the premises.

Amendments to Michigan Court Rules

There were many changes to the Michigan Court Rules that became effective on January 1, 2013. Make sure that you are up to speed on these. The court rules with amendments are:

Rules 1.109, 2.107, 2.113, 2.114, 2.302, 2.518, 3.001, 3.218, 3.800, 3.901, 3.903, 3.930, 4.001, 5.101, 5.113, 5.731, 6.007, 8.108, and 8.119.

To review the SCAO memo regarding these changes, Download Order Michigan Supreme Court dated Oct 31, 2012 .

Dictionary Apps for iPhone, iPad

Hors d’oervres, thaumaturgy . . . can I spell those without looking them up? No. But on my iPhone or iPad, I can choose from several handy apps to help me. [Some of these are also available for Androids.]

One app is from Dictionary.com Dictionary and Thesaurus. It is free—so long as you are willing to put up with the on-screen ads. For $2.99, you can buy the ad-free version. Here’s how it works:

Judicial Tenure Commission Suspends Family Law Judge for 4 Years

The West Virginia Supreme Court of Appeals has suspended without pay an admittedly intemperate family court judge for four years. This just happens to be the remaining years of Putnam County Circuit Court Family Law Judge William M. Watkins III's term. More than 200,000 viewers have watched a YouTube video of a particularly vituperous rant during a hearing in a family law case. Judge Watkins repeatedly told a pastor appearing before him to "shut up." The court of appeals quoted significant portions of the transcript showing the judge's inappropriate language.

The YouTube video was, in a word, amazing. However, since I viewed it about a week ago on YouTube, it has been replaced with this image:

Why You Need an Expert to Draft a QDRO | QDRO Gone Bad

Most of the family lawyers I know do not draft a Qualified Domestic Relations Order (QDRO) for their clients. QDROs are pretty technical beasts, and there are many fine Michigan firms that specialize in drafting them. An opinion released by the Michigan Court of Appeals last week serves as a good example of why drafting of QDROs should be left to an expert. The questions raised in this case were complicated and were addressed in the trial court four times before the issue finally got to the COA.

In Williams v Estate of Williams, Docket No. 307607 (March 28, 2013, unpublished), the COA reversed the trial court's order amending a QDRO 13 years after it initially was entered, vacated the amended QDRO, and reinstated the original QDRO.The net result was this: The former spouse, named as the "surviving spouse" in the QDRO, received 100% of the Plan benefits after death of the Participant. This included the Participant's pre-marital portion, the marital portion, and everything that accrued afterwards during the Participant's 39-year career at Ford.

Comments of Judge Paul Garfinkel Prior to a Custody Trial

  Judge Paul Garfinkel of the 9th Judicial Circuit Family Court, Charleston County, SC, allowed me to share the following comments he made prior to a recent custody trial.  As a family law practitioner for over 20 years, I find these words extremely insightful and wise.

  COMMENTS FROM THE HONORABLE PAUL GARFINKEL PRIOR TO A  CUSTODY TRIAL

     "I want to make a few comments to you about how  important it is to your family to resolve this case.  I know that both   of you sit here today; each of you are convinced of the merit of your  own case and the righteousness of your own position. However, asking  your attorney to convert your convictions and beliefs into evidence  that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required  to do.

Felony Kidnapping or Parental Kidnapping | "Natural Parent" Argument Shot Down

In People v Wambar, ____ Mich App ____ (Docket No 304116), released March 26, 2013, For Publication, Helmut Wambar helped La[Q]uanda Wambar, the child’s biological mother, abduct their child then age 6—withholding her from her legal guardian. They held the child until the police located them a few days later. The parental rights of both biological parents had been terminated earlier after an incident during which the young child ingested cocaine.

The mother pled guilty to attempted unlawful taking of a child, and did not appeal her conviction. Helmut plea bargained and in exchange for dismissal of several criminal-sexual-conduct and sexually-abusive-activity charges, he remained charged with kidnapping and with a custodial-interference charge. The latter was dismissed by the trial court. Helmut pled to the kidnapping charge, while preserving for appeal that he—as a “natural parent” of the child—could not be charge with kidnapping his own child. The Court of Appeals disagreed,  concluding that defendant did not fit within the definition of “natural parent” in MCL 750.350(2), that his conviction was proper, and that the trial court did not erroneously deprive him of a defense.

Jurisdiction to Enter Child Custody Order | Prior Order in Another County

A recent discussion among Michigan lawyers raised the question whether a parent who was subject to the jurisdiction of an adjoining county in an earlier filed child support case could lawfully file a divorce case in an adjoining county. Oddly enough, the Michigan Court of Appeals decided a case just days later holding that, yes, the divorce could be filed in another county. The case is Dixon v Dixon, Docket No. 308253, decided March 21, 2013 (Unpublshed)

In Dixon, an Oakland County, Michigan trial court entered a child custody and parenting time order in a child support case in 2008. Subsequently, the parties married in 2009. Fast forward a few years. Husband filed for divorce in Wayne County, Michigan. Wife argued that the Wayne County trial court did not have jurisdiction to enter its custody order in this case because a custody order existed in Oakland County entered in the 2008 child support case. The court of appeals disagreed, stating

Felony Non-Payment, Michigan | Defense of Impossibility

In July 2012, the Michigan Supreme Court decided People v Likine and ruled that impossibility of payment of child support is a defense to a charge of felony non-support. It’s important to note that inability to pay child support is not a defense to a felony charge. The question then is: What is the difference between “inability to pay” and “impossibility?”

The Likine case concerned a criminal statute, MCL 750.165, that makes non-compliance with court-ordered child support a felony. The penalty for felony non-support in Michigan is incarceratation for up to four years and a fine of up to $2,000. If someone is arrested for non-support, he or she remains behind bars until trial unless he or she posts a cash bond of $500.00 or 25% of the arrearage, whichever is larger. That could mean being in jail until trial—and all that time, the arrearage continues to grow. It’s difficult to understand how what is essentially “debtor’s prison” works for children who need support.