UPDATES IN MICHIGAN FAMILY LAW

Rights of a Biological Parent vs a Third Party Custodian | Re Dux

A compelling question often arises when a biological parent dies and the other parent, having established parentage, but not having an established custodial environment with the minor child(ren), seeks primary custody. This arises most often in the context of the child or children having primarily lived with the mother and/or maternal grandparents. In Frowner v Smith, the Michigan Court of Appeals has given a fresh look at what this scenario looks like in the context of the holdings in Heltzel v Heltzel and Hunter v Hunter.

On April 26, 2012, the Court of Appeals (COA) released an opinion for publication in Frowner v Smith. In the Frowner case, after the mother died, the father--an acknowledged father--sought custody from the maternal grandparents. The seminal issue was whether a biological parent has to satisfy the Vodvarka threshold--i.e., to show a major change in circumstances or good cause--to change custody from a third party custodian after the death of the other biological parent.

The Mother Who Cried Wolf | Unsubstantiated Allegations of Abuse

The Michigan Court of Appeals ordered a mother to pay over $25,000 in attorney fees and costs in a contentious post-judgment child custody and parenting time case. Parents who think they can just willy-nilly waltz into court and/or who use and abuse child protective laws in an attempt to restrict access to children should think again. I've seen lots of abusive litigation before, but this one is really quite amazing.

The case involved Sean O’Farrell [“Father”] and Kelly O’Farrell [“Mother”]. They were divorced in December 2008. The judgment of divorce provided that Father and Mother would have joint legal custody of their minor child, who was two years old at the time. The judgment of divorce granted Mother physical custody of the child until further order of the court and ordered an extensive, detailed parenting-time schedule. The fact that the PT schedule was extensive and detailed indicates that Father’s lawyer perceived the need for this—that there was already contention. No doubt! Mother filed a motion in later March 2009—about four (4) months after the ink was dry on the judgment of divorce. She sought to suspend or to restrict Father’s parenting time.

Father responded to the motion and also filed a motion for a change of custody. There were thirteen hearings over a period of nearly two years. At the conclusion of the final hearing, the Court declined to restrict the father’s parenting time and, in fact, increased it.

In addition, the judge indicated that he was very close to finding the proofs sufficient to grant Father’s petition for a change in custody. The trial court ordered that Mother pay Father’s attorney $20,912 in fees and $3,555.86 in costs and reimburse Father’s $738 cost to the Guardian Ad Litem (GAL). The Court of Appeals affirmed.

Understanding Sensory Overload - Autism and Related Syndromes

An NPR article on November 15, 2012 offers information and resources to help parents and child custody lawyers assisting parents understand exactly how children affected by autism and related syndromes process (or fail to process) information and the world around them. First the author describes "normal:"

You walk into a room. There are people there, cars outside, dogs, phones ring, the radio is on, somebody coughs; it's the pleasant blur of a busy world, until something, someone catches your attention. Then you lean in, the other sounds fade back, and you focus. That's how listening works — for most of us.

Then the author shows in a most effective manner, how an autistic child might process what is happening in that room differently, and experiencing sensory overload, feel "mugged by sound." This condition is very familiar to people with Asperger's syndrome as well.

Legal Research | What is Reasonable for Online Research Costs?

The ABA Journal reported on November 14, 2012 that many clients are balking at the costs billed for use of on-line database services. Back in the day, I used one of the BIG online services. I was billed at a rate for a solo practice. My contract allowed me to research the Michigan Court opinions and statutes. I was billed a premium cost if I went outside of the contract. The other 49 states, treatises, law review articles, etc. were all outside of my contract and the cost was not small. When my search of law reviews (at $50 per search) was interrupted  and I signed back on . . . there was an additional $50 charge. I billed my clients for the access charges, but not for my mistakes / problems (e.g., a dropped connection). One month my bill was $750 because I had done some very complicated research.

According to the ABA Journal,

"With clients increasingly primed to demand discounts, balk at hourly rates and refuse to pay for associate lawyers, a greater number of law firms have found themselves absorbing legal research costs as a way to shrink their clients’ tabs."

More Internet Safety Resources

Thanks to Rebecca Henry, Deputy Chief Counsel, ABA Commission on Domestic & Sexual Violence for these wonderful collections of resources expanding on Internet Safety for Men, Women and Children:

Safety & Privacy in a Digital World by the National Resource Center on Domestic Violence (September 2012) provides information and resources to support the safety and privacy of those who may or do experience technology-assisted abuse. It reviews the ways in which technology can be misused, offers tips for enhancing data security and personal privacy, and explores considerations for advocates and organizations serving survivors of abuse.

The Technology & Confidentiality Resources Toolkit by NNEDV's Safety Net Project, The Confidentiality Institute, and the U.S. DOJ Office of Violence Against Women (2012) can be found on the VAWnet.org website. Click on the Internet Explorer icon to view.

Protecting your Email, Accounts, Etc. with Secure Passwords

One of the first things I tell new clients is that they should change passwords on their email account(s) to avoid the potential that their spouse, former spouse or others will be able to access and read confidential attorney-client communications. This is particularly important when spouses share the same computer or the same home network.

In the November 7, 2012 issue of the New York Times, Tech writer Nicole Perlroth writes:

Not long after I began writing about cybersecurity, I became a paranoid caricature of my former self. It’s hard to maintain peace of mind when hackers remind me every day, all day, just how easy it is to steal my personal data.

More recently, I received a text message from Google with the two-step verification code for my Gmail account. That’s the string of numbers Google sends after you correctly enter the password to your Gmail account, and it serves as a second password. (Do sign up for it.) The only problem was that I was not trying to get into my Gmail account. I was nowhere near a computer. Apparently, somebody else was.

Surrogacy | One Woman's Way of Making Ends Meet

I've written quite a bit about non-traditional familes. An opinion piece in today's New York Times made me far more aware about surrogacy issues. This is not something that would ever have occurred to me. I'm not saying it's terrible. To me, it is very thought-provoking in this day and age of increasing numbers of non-traditional families.

In Sunday's New York Times, Susan Straight wrote about her neighbor for whom surrogacy is a way of helping her family pay day-to-day bills. Straight wrote: