UPDATES IN MICHIGAN FAMILY LAW

Does a custodial parent ever have to pay child support to the NCP?

Recently, someone asked me whether it was possible that a custodial parent might ever be ordered to pay child support to the non-custodial parent ["NCP"]. My answer was "Yes, that can occur under certain circumstances." Normally, it's a situation where there is a large disparity between the income of the custodial parent and the NCP.

The computation of child support under Michigan's Child Support Formula takes into consideration the income of both parents, the number of children to be supported, other children in each parent's family to be supported, and since October 2008 when the formula was revised, the number of overnights that each parent has under the current custody / parenting time order.

How can limited or full guardians seek custody of children?

    In Woszczynz v Shouse, maternal grandparents Mr. and Mrs. Woszczynz filed a petition seeking custody of their grandson. They were limited guardians when they filed the custody petition. The Child Custody Act provides that limited guardians have no standing to bring a custody action unless the child's parents have failed to substantially comply with the guardianship placement plan. At the time the Woszczynzs filed their petition for custody, the child's mother had not complied with the guardianship placement plan and Smith had not yet established paternity. Thus, the Court of Appeals ["COA"] affirmed the trial court decision that they met the standing requirements for a limited guardianship under the statute.

    The father opposed the custody petition and a trial occurred. The trial court held the grandparents to a burden of proof of clear and convincing evidence and awarded custody to the father. The grandparents appealed.   

Wayne County Family Court | New procedures

Thanks to Dorothy Hague who points out that there is a new procedure for filing motions in Wayne County. She explains the new procedure:

Get a copy of the Court Directives, most recent edition.

Find out whether the FOC or the Judge deals with this issue...most likely, of course, the FOC. Wayne County FOC website is here.

Find out who the Judge is and then the Referee, and get the most recent [last July] schedule for hearings before the referees [Judge McCarthy always has same on the Attorneys Table [1501 CAYMC]

How can you make sure that your property will pass to your children?

The Michigan Court of Appeals decided an interesting case this week, for publication, that should provide a heads up for lawyers preparing what are often called "pour-over Wills" and "simple trusts" for their clients. There are some traps for the unwary, lawyers and laypersons alike. The case, In Re Estate of Leix, makes those clear.

Sometimes folks want to do what they call "simple estate planning." They may make a contract / agreement to make mutual wills. Ultimately these people intend that their mutual promise to devise real estate, bank accounts, and other property to particular people--generally their children--is carried out after the first of the couple passes away. In Re Estate of Leix points out how easy it is to defeat this plan after the death of a spouse.

Wayne County Family Court | New procedures

Thanks to Dorothy Hague who points out that there is a new procedure for filing motions in Wayne County. She explains the new procedure:

Get a copy of the Court Directives, most recent edition.

Find out whether the FOC or the Judge deals with this issue...most likely, of course, the FOC. Wayne County FOC website is here.

Find out who the Judge is and then the Referee, and get the most recent [last July] schedule for hearings before the referees [Judge McCarthy always has same on the Attorneys Table [1501 CAYMC]

Parental kidnapping | Preventing international abduction

There are important resources available for parents who have complicated marital or post-divorce  situations to help them prevent international parental abductions, stop abductions in progress, locate children who have been abducted or who are wrongfully being retained in another country, bring an abductor to justice, recover children who have been abducted or are wrongfully retained in another country, and help them gain access to children being retained in another country. Needless to say, this will only work where the foreign country involved is not only a signatory to the Hague Convention but is also a country (not Brazil, not Japan, not Mexico, not Honduras, for example) that has a history of honoring the convention rather than trashing it.

Sudden Divorce Syndrome: Reality or Myth?

In an innovative approach to blogging, family law attorney Robert L. Mues of Dayton, Ohio has posted a multi-disciplinary article that looks at divorce from the point of view of the family lawyer and a family counselor, Donna Ferber. Their joint post is: Sudden Divorce Syndrome: Reality or Myth? which takes a close look at how males and females perceive the idea of the end of marriage as they knew it. Mues writes:

I am pleased that Donna Ferber, a psychotherapist and a frequent contributor to the Ohio Family Law Blog has agreed to co-author this article with me! Our goal is to present both the legal and emotional perspectives of a trend that we are seeing in our professional practices: long term marriages ending by divorce when the wife has come to the conclusion that she has just “had enough” and that the husband is seemingly caught “blindsided” by the situation. The intent of the article is not a male versus female point and counterpoint, but rather a collaborative discourse that can provide insight into the complexity of the issues.

My legal analysis is in regular black font and Donna’s perspective as a psychotherapist is in blue italics…

Having been a divorce lawyer for over 30 years, I see recurring themes in many of my cases.  Statistics show that there will be about a million divorces in the United States this year.  About 75% are filed by women.  More of my male clients are telling me that they are completely “blind-sided” by the divorce situation.  These are individuals in long-term marriages who have honored their wedding vows, are not abusers, and had not been separated.  This scenario is becoming so common that some lawyers and psychologists have given it a name: “Sudden Divorce Syndrome.”

While it is true that women may file more often than men, it does not necessarily follow that they WANT a divorce. They simply have surrendered the hope that the marital relationship can change. It is only after years of feeling ignored, devalued, invisible and unheard, do women finally pull the plug and file for divorce. The term, “Sudden Divorce Syndrome,” implies that women throw out their marriage as impulsively as they change shoes. A man may be shocked by the news that his wife wants “out” but that doesn’t mean she hasn’t given plenty of warning. It usually means he wasn’t listening. “Sudden Divorce Syndrome” assumes impulsive behavior on the part of the woman. Nothing is further from the truth.  Perhaps a better term would be “Shocked Divorce Syndrome.” That certainly is an accurate description of these men who find themselves blindsided.

You may read the entire post Sudden Divorce Syndrome: Reality or Myth? here.

The Ohio Family Law Blog is accessed here.

Service members | Deployments, custody & parenting time

Many state legislatures have recently enacted or proposed legislation to help divorced or separated military service members maintain their parent-child relationships with their children during and after deployments. These laws (or proposed laws) are meant to restore to service members returning from a deployment the relationship he or she had with his or her children prior to deployment.

All too often, custodial parents have impeded or completely eliminated contact between deployed service members and their children. This means that a deployed soldier might call his or her children at the court-specified time, but nobody answers. Letters sent to the children never reach them. Young children who need frequent contact with both parents in order to maintain a parent-child relationship are particularly affected.

Facebook or Fakebook?

In the Cultural Studies section of the New York Times, Katie Roiphe wrote on August 13, 2010 about the cultural phenomenon that is Facebook. Facebook and other social networking websites are changing the way people communicate--not for the better. Roiphe says:

"Somewhere in the gap between status posting and the person in their room at night is life itself. So fiction is the right response, the right commentary, the right point to be making about who we are in these dangerously consuming media, in these easy addictive nano-connections.

"It is not, alas, 'The Sun Also Rises,' but Facebook is the novel we are all writing."

Same-sex marriage | The decision in Perry v Schwartzenegger

In a fascinating Op-ed piece in the New York Times on August 12, 2010, Linda Greenberg analyzes the decision in Perry v Schwartzenegger, the recent California appellate decision overturning Proposition 8 that outlawed same-sex marriage in California.

Greenberg has this to say about the decision:

"Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. 'Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines' until recently, he said. 'Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.' ”

FBI & Facebook | Privacy concerns?

Family law lawyers are always concerned about the evidence obtained from social networking sites negatively impacting their clients' custody and parenting time cases. Greater concerns loom, not only for divorced and divorcing families, but for all people using these sites. The Justice Department released a presentation entitled "Obtaining and Using Evidence from Social Networking Sites." The slides, which were prepared by two lawyers from the agency's Computer Crime and Intellectual Property Section, detail several social media companies' data retention practices and responses to law enforcement requests. The presentation notes that Facebook was “often cooperative with emergency requests” while complaining about Twitter’s short data retention policies and refusal to preserve data without legal process. The presentation also touches on use of social media for undercover operations. The document says evidence from social networking sites can:

Is re-marriage of a parent grounds to change custody?

In a recent unpublished case, Michigan's court of appeals ("COA") held that the marriage of the parties' custodial parent to a man with a past criminal record was not a proper cause or a change in circumstances that would give the father a right to a change in custody of the parties' two minor children.

The parties have two children. The parties, who were never married, were awarded joint legal and joint physical custody in 2001. In 2007, after a hearing, the mother was awarded primary physical custody, but the parents continued to share joint legal custody. Apparently in that hearing, the father claimed that the criminal history of Mom's boyfriend warranted a change in custody and he tried to prove the boyfriend was a danger to the children. 

What's a "geotag?" | To protect yourself and your family, you want to know

Am I a privacy freak? Yes, without a doubt. I've abandoned the social networking sites folks had recommended as "good for business." You won't see me on Facebook, LinkedIn or Twitter. You won't see casual snapshots of my "kids" (two Siamese sisters) that I took with a smartphone on my blogs or websites. Why not? I read an article about geotags and about how cellphones and digital cameras with built-in GPS can reveal the exact location of where the photo was taken. I had a real wake-up call. Families with children posting to social networking sites need the same wake-up call.

Legislation introduced in Michigan to protect fathers' rights

On July 21, 2010, Representative Lori introduced a bill in the Michigan legislature that would amend the Paternity Act so that some biological fathers will be able to protect their parental rights. The proposed law would allow biological fathers the right to file an action to establish paternity of a child born to a married woman under certain circumstances. The proposal is an effort to avoid the harsh results that have occurred in prior cases such as Numerick v Krull where a biological dad was prevented from having a parent-child relationship with his child because the child was born while the mother was married to another man.  Progress so far? The proposed legislation has been referred to the Committee on Families and Children's Services.

NOTE: Since this blog post was published there have been sweeping changes to Michigan's Parentage laws. Click here to read Blog Post Sweeping New Changes to Parentage Laws in Michigan. If you have a paternity issue involving a child born or conveived while the mother was married to another man and the mother and child live in Michigan, call Jeanne Hannah's office at 231-275-5600 to schedule a telephone conference to discuss how the new law may impact your particular parentage rights.

Updates in Michigan Family Law recognized

I was very pleased to see Laura Mancini's article "Family Law Resources," published in the July 2010 issue of the Michigan Bar Journal. Mancini recognized this blog, Updates in Michigan Family Law, in the category of Electronic Resources. You may read the entire article here. 

Mancini, the director of library services for Oakland County, who oversees the Adam Pratt Law Library, and is also an adjunct faculty member for the School of Library and Information Sciences at Wayne State University, says this about the blog:

"The Updates in Michigan Family Law blog is published by Traverse City family law attorney Jeanne M. Hannah and has been ranked by Attorney.org as one of the top 100 family law blogs. In her blog, Hannah discusses various family law trends and cases."

Thank you, Ms. Mancini, for the recognition.

Registering a "foreign" custody order for modification purposes

I am often asked whether a parent can modify a custody or parenting time order that has been made by a court in a state other than Michigan. As with most family law matters, the answer is "It depends upon the unique facts of your case."

The Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"] is a jurisdictional, procedural statute. Its purpose is to determine jurisdiction to make an initial child custody determination, to preserve exclusive continuing jurisdiction with respect to that custody determination, to determine whether a state has modification jurisdiction, and to provide for enforcement of custody orders.

Staying married, living separately | Pros & Cons

The New York Times published an interesting article today about people who opt to stay married for 25 to 40 years or longer. What’s odd about that? The article is about folks who stay married but live separately. Some continue to function as a married couple, filing joint tax returns, enjoying company perks like health care insurance, etc. Others live separate lives. Often financial reasons keep them together, particularly if one party has a debilitating disease and the other has great health care coverage.

One man quoted in the article said: “Since separating we get along better than we ever have. It’s kind of nice.” Because their children are grown and no longer live at home, he sees no reason to divorce. He said: “Why bring in a bunch of lawyers? Why create rancor when there’s nowhere to go but down?”