UPDATES IN MICHIGAN FAMILY LAW

Acknowledgments of Parentage: Can They Protect Parent-Child Relationships?

Someone opined today on Michigan's Family Law Section Listserv that:

"The next step that I foresee is that somebody is going to try to stick Ms. Jeudevine's ex-spouse, whom I gather is a Mr. James V. Charles, with a child support obligation.  He would then, I suspect, move to amend the J/D by adding a Serafin order, either in the J/D itself or in a separate order,  plus an amendment of the J/D language to conform to the Supreme Court's requirements.  Then Mr. Barnes could refile and get the proper result."

I see a major problem with this approach:

Barnes v Jeudevine: How to Deprive a Child of a Father

       A decision handed down by the Michigan supreme court in Barnes v Jeudevine, Docket No. 129606, released on July 26, 2006 only reaffirms my strong belief that the Michigan Legislature needs to address the issue of complete revision of the Paternity Act. I firmly believe that the piecemeal fashion in which the Paternity Act has been amended does nothing more than confuse the issues.

Under the Uniform Parentage Act, a father such as Barnes would be permitted to rebut the presumption of legitimacy because he, as well as the ex-husband, would be a “presumed father.” The UPA would move Michigan along in parentage actions in the direction that California has done judicially, recognizing the rights of fathers to establish parentage where they’ve formed a bonded, parent-child relationship with their child, despite the mother’s marital status. See, for example, a case in which the facts are not terribly dissimilar to Barnes: Brian C. v. Ginger K. (2000) 77 Cal. App.4th 1198 [ 92 Cal.Rptr.2d 294]. Court of Appeal, Fourth District, Division 3.

Barnes v Jeudevine: The Decision

 The Michigan supreme court reversed the court of appeals’ decision in Barnes v Jeudevine, in an opinion released on July 26, 2006. Docket No. 129606. As a result, Barnes, who filed an action seeking a determination of paternity of a child conceived while the child’s mother was married to another man—a child whom he co-parented for 4 ½ years, and a child who believes that Barnes is his father—is denied the opportunity to establish legal parentage.

Washington State Upholds Ban on Same-sex Marriage

Washington's State Supreme Court upheld a ban on gay marriage Wednesday, July 26, 2006, saying lawmakers have the power to restrict marriage to unions between a man and woman.

The court split 5-4 in a decision that disappointed gay-marriage advocates and left Massachusetts as the only state that grants full marriage rights to gay couples. The court's decision favoring gay-marriage opponents was one of several recent significant court rulings dealing a blow to same-sex marriage proponents. Earlier this month, as reported on this blog, New York's high court ruled that a state law limiting marriage to between a man and a woman was constitutional in that state.

The Washington Supreme Court overruled two lower courts that had found the state's 1998 Defense of Marriage Act, which limits marriage to opposite-sex couples, violated the state constitution and its Equal Rights Amendment.

Interestingly, three of the justices in the majority invited the state Legislature to take another look at the gay marriage ban's effect on same-sex couples, saying: "Given the clear hardship faced by same-sex couples evidenced in this lawsuit, the Legislature may want to re-examine the impact of the marriage laws on all citizens of this state."

It is also of interest that the state of Washington has long upheld the rights of unmarried cohabitants to an equitable share of property acquired during a cohabitation relationship and that its courts have applied those principles to same-sex relationships.

Collusive Divorce -- Should It Be Set Aside?

Professor Barbara Glesner Fines has written an intriguing article regarding what may be a divorce / property division strategy that many practitioners have seen and/or will see in the future, this being a divorce that is collusive and designed to protect assets in the event of a catastrophic illness of one of the spouses.

She writes today on the Family Law Prof Blog as follows:

"This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now.  The case involves a request to vacate a divorce decree on the grounds of fraud.

The dissent summarizes the case nicely:

The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.

Separate Property Award and Interest

Pathetic, isn’t it, when a spouse has to appeal a judgment of divorce granted in 1993 to the court of appeals three times to get her fair share of the marital assets and the property division in the case drags on for thirteen years – and longer! In a decision yesterday, the Michigan COA once again was forced to remand to the trial court for redetermination consistent with its decision.

In Cipriano v Cipriano, Docket No. 259818 (Cipriano III), decided by the Michigan Court of Appeals on July 25, 2006, the court made some important rulings with regard to separate property claims.

"Roe v Wade for Men" Dismissed by Sixth Circuit

On July 17, 2006, the Sixth Circuit Court of Appeals dismissed Dubay v Wells et al., stating:

“According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case.”

The lawsuit, often described as "Roe v Wade for Men," was filed by Matthew Dubay in the United States District Court at Bay City, Michigan. Dubay claimed that Michigan's paternity law is unconstitutional because the father is compelled to pay child support even if he did not want the child to be born.

Military Deployments and Child Custody Orders

The Michigan Court of Appeals issued an unpublished decision on July 18, 2006 remanding to the trial court and directing that court to comply with a Michigan statute that requires the court to return a child to a parent who has returned from active military duty. In addition, the COA reversed two prior court orders that changed custody from the custodial parent after she attempted to vest the maternal grandparent with guardianship upon her deployment rather than to allow the non-custodial father to care for the child in her absence.

How the Use of an Advance Medical Directive Can Help Elderly Clients

Some decisions are best not left until the end of life. One of these is the ability to put safeguards in place regarding treatment during last illnesses. If your loved one makes a designation naming you as her patient advocate or health care agent, you will have the authority to direct and empower a physician, nursing home, or hospital to rely upon your treatment decisions if she is unable to participate in those decisions.

A proper designation will make tackling decisions for a loved one at the end of life far, far easier and may permit your loved one to die with dignity. Advance directives eliminate any guesswork about what her wishes might have been. This is especially important is she has lost the ability to communicate or if the religious beliefs of your loved one may conflict with those of others in the family—especially others who may believe that they have a right to call the shots. Most important, by using an advance directive, your loved one will be able to make her wishes as to her final care clear and binding in order to eliminate any the possibility that siblings’ emotions such as guilt, grief, or potential conflicts of interest may cloud the issues.

Blow to same-sex marriage proponents

Same-sex marriage, which earlier this month suffered a huge setback in the State of New York, was handed another blow in Massachusetts yesterday when Massachusetts' Supreme Judicial Court validated a proposed constitutional amendment that seeks to outlaw gay weddings in a 2008 ballot measure.

Gay-marriage advocates contend that because same-sex marriage was made legal in 2003 by an SJC ruling, the proposed ballot question would run afoul of that prohibition. [See Goodridge et al v Dept of Public Health decided November 18, 2003]

The court's unanimous decision was a major victory yesterday for opponents of same-sex marriage.

To read more about the court's decision, see "Gay-marriage opponents get SJC go-ahead" by Scott Helman. The Boston Globe.

The court's decision, Johanna SCHULMAN vs. ATTORNEY GENERAL & another; Raymond Flynn & others, interveners. SJC-09684 July 10, 2006 may be read here.

Issues involving same-sex couples and cohabitation have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Bizarre End to Separate Property Dispute

In a bizarre twist to a hotly disputed divorce in New York State, a doctor blew up his building in Manhattan -- a building that had been appraised at over $5 million. Sounds like "War of the Roses" ! The appellate decision would force him to sell the real estate. His explosion -- which he survived -- was apparently his way of saying, "If I can't have it, then neither can you."

The doctor had claimed that the building was his separate property, inherited from his parents. However, the appellate court held that it made no difference whose name was on the title. Title alone could not deprive the wife of her community interest in property that had been acquired with marital funds, that had been improved with marital funds, and that had appreciated due to efforts made by the wife.

Surely the result was in accord with some of Michigan's recent cases involving separate property claims -- Bone v Bone, 148 Mich App 834, 838 (1986); Hanaway v Hanaway, 208 Mich App 278 (1995); Reeves v Reeves, 226 Mich App 490, 575 NW2d 1 (1997).

Read the New York appellate court's opinion here.  Bartha v Bartha

A New York Times article may be accessed here. There are links to some specacular slide shows on the NYT website.