UPDATES IN MICHIGAN FAMILY LAW

Facebook downgrades privacy

The Boston Globe condemns today in its editorial section Facebook's downgrading of privacy. You may read it here.

Update on Sean Goldman case | Decision expected tomorrow

CBS News reports that a decision is expected tomorrow in Brazil in the Goldman Case. Goldman's United States attorney, Patricia Apy, says that David Goldman will not be in Brazil expecting to reclaim his son and take him home in light of the possibility of more appeals by Lins de Silva. De Silva, a family law attorney well versed in the Hague Convention, is Sean Goldman's stepfather. An earlier Brazlian court decision said that de Silva's retention of Sean Goldman in Brazil amounted to a second kidnapping.

Goldman, Apy reports, does not want to put Sean in the middle. You may read reports on this recent development in the Goldman case here:

CBS NEWS

Transworld News

David Goldman, other Left-behind Parents Testify in Congress

Testimony offered at the Tom Lantos Human Rights Commission in a hearing on International Child Abduction has been published on the web site of Chris Smith. According to Smith's reports:

Washington, Dec 2 - The heartbreaking stories of left-behind parents whose children are held in other countries were laid out before the Tom Lantos Human Rights Commission (TLHRC) at a hearing on international child abduction and parental access that also included judicial and legal experts, the head of the Center for Missing and Exploited Children and other witnesses.

Why do young parents need a Will?

In an Associated Press story reported today online at http://sphere.com, the reasons why parents of young children should have a Will become instantly apparent. The AP reports on an horrific vehicular accident that instantly killed the parents, Karl Heiss and Marisa Bauducco-Heiss and left their 10-year-old daughter with a catastrophic brain injury. Alden, the Heiss' 6-year-old son was more fortunate. A proper car safety seat left him injured, but he has recovered fully.

It was only after the accident that the Heiss' good friend, entrusted with their 7-sentence, 2 page holographic Will, brought it to the attention of the two sets of grandparents. The Heisses had decided that Marisa's parents, who reside in a village named Ushuaia, near Terra del Feugo at the tip of South America, should have custody eleven months of the year and that Karl's parents, who live in Malibu, California, should have the children one month of the year.

Court holds that hiding of abducted child is parental neglect

You may recall that in early September 2009 I wrote about the recovery of a child who had been abducted by his mother after the father was awarded custody by the trial court. Immediately after that court decision, the mother took the child and, with her mother’s help, hid him for nearly two years. The earlier post and details of the case are found here on the post “Parental Kidnapping | Effective response”. http://tinyurl.com/yjth6j7

An Illinois court has now decided that the mother’s hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall (in a space that was roughly 5 feet by 12 feet and about the height of a washing machine), amounted to neglect. The judge’s ruling, according to an AP report, was based partly on her agreement with a counselor's belief that the seclusion left the boy, now 7, with post-traumatic stress disorder. The judge’s ruling clears the way for a possible decision at a Jan. 8 hearing on custody or visitation arrangements for the boy, who now is in the temporary custody of a relative. The father, Michael Chekevdia, 48, is seeking custody.’
You may read the entire AP report here. http://tinyurl.com/yjv28kh

Paternity fraud | "Duped Dads" | What's the answer?

 What's the right answer to paternity fraud? ["Paternity fraud" means that Mom has
not told her husband or the biological father that he is the father of her child. Instead, she's chosen to live a lie - one that deprives a biological father of his right to be a parent and keeps a husband or former husband on the hook for support even though the child is not his.]

The answer is not easy or predictable: There is no right answer. Every case is dependent upon its own unique set of facts and also upon the specific law of the state in the US having jurisdiction over the issues. These are tough questions; they are often expensive and complicated to resolve.

Fathers awarded custody more often

A New York Times Blog called my attention to Working Mother Magazine on Tuesday called “Custody Lost ,” about the new reality of divorce and child custody for working mothers.

According to articles in this magazine, many women who are the primary wage earners in a marriage are losing custody of their children to their husbands when the marriage ends. Working Mother Magazine says that there are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and that an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

David Goldman to testify in Washington

The Associated Press reports today that David Goldman of Tinton Falls, New Jersey will testify on December 2nd before a congressional human rights panel in Washington. David is the father of Sean Goldman, who was kidnapped by his mother more than 5 years ago. Even though Sean's mother died more than a year ago, her family continues to put up barriers that prevent reunification of father and son. Under the Hague Convention on the Civil Aspects of International Child Abduction, Brazil is obligated to return Sean to his father's custody.

A detailed report published today can be read in The Daily Record here.

Custody awarded to father

A trial court awarded custody of two minor children to a father and the Michigan Court of Appeals ["COA"] affirmed on November 10, 2009 despite the fact that the mother had been the primary caregiver since the birth of the children.

The COA held, however, that the father was involved with the children from the time of their birth. At trial, witnesses who observed his interaction with them testified he was a good parent. In addition, the father remained actively involved in the children’s schooling, helped coach their soccer teams, and brought them to counseling sessions to help them adjust to the divorce. A clinical psychologist testified, after observing the father and children together in several counseling sessions, that the “overriding portion of plaintiff’s mental state is the welfare of his children.”

Reconciliation is not for the faint of heart

Earlier this fall I wrote about a column in the New York Times written by Laura Munson. My blog post  was titled "When your spouse says 'I don't love you anymore.' Advice for clients." Munson wrote about sticking it out and seeing it through the "rough patch" with her spouse. 

In emails responding to this post (that I now wish I'd archived), some people expressed the thought that Laura Munson was just "wimping it out" and not sticking up for herself. Some others, like me, thought that Laura's words were empowering to women.

Facebook - Guide to Internet privacy & safety

I've written previously about Internet safety for those in the middle of a divorce or post-divorce difficulties. In particular, I've warned about use of Facebook and MySpace. These social networking websites can offer a wealth of information that might be used against someone who's battling for custody of children or have other issues (such as spousal support) that can be impacted by disclosure of activities.

The New York Times has published a terrific list of ways folks can protect their privacy while using Facebook. I am sure they also apply to sites such as MySpace.

You can read the NY Times article 5 Easy Steps to Stay Safe (and Private!) on Facebook here.

Earlier articles about protecting your privacy when online or using a computer another might have access to (or might have had access to) can be found here.

Child's entry into school held "proper cause" to revisit custody issue

In Hoeve v Hoeve, an unpublished opinion issued by the Court of Appeals on 
October 15th, a panel of Michigan's Court of Appeals ruled that a child's impending enrollment in school constituted proper cause to revisit the trial court's earlier custody order because the child needs to be enrolled in one school district, the parents live 45 minutes apart, and the child's beginning school attendance is an event that “could have a significant effect on the child’s life.”

Adoption fraud | Should third parties keep child?

Glenn Sacks' Blog Fathers & Families featured an article authored by Robert Franklin, Esq on September 24th, 2009 that caught my eye. I frequently am contacted by fathers who are concerned about their parental rights in cases where the parents have never married. Franklin wrote about a biological father who opposed adoption of his child but the Texas court named prospective adoptive parents as "managing conservators" [in Michigan's parlance, the primary physical custodial parent]. Four years later, a Texas appellate court is sending the matter back to the trial court for a re-determination whether the biological father should have custody of his child instead of third parties.

Last week, while in court on another matter, I listened to oral argument in a case involving a father whose child has already been adopted -- a father who is hoping to overturn the adoption that had been granted because the mother failed to identify him at the time of the adoption in order to destroy his ability to have custody of the child she did not want, the child for whom she had arranged a private adoption.

Court-mandated co-parenting classes | Another option?

Most Michigan family lawyers are familiar with the S.M.I.L.E. program [Start Making It Liveable for Everyone]. Most, if not all Michigan counties run S.M.I.L.E. and attendance is often mandatory.

I do a fair number of military divorces and my client is not always available to participate in Michigan in these valuable co-parenting classes. In Grand Traverse, the Friend of the Court has been willing to approve 2 hours of counseling that is focused on co-parenting and issues that arise with children and divorce as a substitute. My clients then send a letter from the counselor describing the content of the counseling sessions to the FOC to get credit. Today I found another option.

Parental kidnapping | Effective response

According to an Associated Press story posted on September 5, 2009, Richard   "Ricky" Chekevdia, who will be 7 on Sept. 14, was in good spirits and healthy after being found Friday by investigators who searched a two-story rural home in Illinois owned by his grandmother. Ricky had been missing for nearly two years. This child was found in a secret room in the grandmother’s house, a room roughly 5 feet by 12 feet and about the height of a washing machine.

The boy's mother, 30-year-old Shannon Wilfong, has been charged with felony child abduction. The grandmother, 51-year-old Diane Dobbs, has been charged with aiding and abetting. Both remained jailed Saturday on, Wilfong held on a $42,500 bond and Dobbs held on $1,000 bond. [Note: AP Photo from the Chekevdia family]

Hague Convention | Return refused | Undertakings issue

The U.S. Court of Appeals for the Sixth Circuit  issued a ruling regarding the Hague Convention on the Civil Aspects of International Child Abduction international child abduction petition. Simcox v. Simcox, 499 F. Supp. 2d 946, 950-52 (N.D. Ohio 2007). The decision discusses the role that undertakings should play in rulings that concern the defense against return of the child or children to the left-behind parent. Undertakings generally are safeguards to protect the children from being exposed to, for example, domestic violence or abuse after return.

Be careful what you wish for: Parenting time pitfalls to avoid

In Brausch v Brausch, 283 Mich App 339; ___ NW2d ___ (2009), decided by the Michigan court of appeals on April 14, 2009, the Court of Appeals reaffirmed that child custody provisions in a judgment of divorce cannot be and will not be governed by contract privileges.

In this case, the parties entered into a judgment of divorce that (1) granted Plaintiff Mother sole legal and sole physical custody, (2) granted the father “reasonable parenting time as agreed to by the parties,” (3) did not restrict Plaintiff Mother from moving more than 100 miles from Defendant Father, and (4) allowed interstates moves without permission from the trial court. Now there’s a recipe for disaster!

Here is the specific wording from the Brausch judgment of divorce. Following that are some specific guidelines for parents who should try to avoid the problems caused by the wording.

The importance of being earnest | Custody & parenting time de novo reviews

It is very important that lawyers and laypersons filing objections to a referee's decision and recommendation for order and asking for a de novo review follow the procedures dictated by Michigan court rules.

The Michigan court of appeals recently released an unpublished decision affirming in part and reversing in part an award of sanctions under MCR 2.114 for bad faith pleading. The issue arose when the litigant filed a defective objection to a referee’s decision and recommendation for order, requesting a de novo hearing.

Michigan's court rules are very clear about the procedure for the filing of objections and the request of a de novo hearing. The procedure is set out clearly in Michigan Court Rule 3.215.

Note that it is well-established that sanctions are mandatory for violation of MCR 2.114, as the COA reiterates.

This opinion is well worth reviewing for its analysis of the issue so that you can avoid sanctions for filing objections that are non-conforming. The case is Salmon v Smith, Docket number 277752; the lower court is in Kent County. Read it here.

For another lower court opinion awarding sanctions for a lawyer’s failure to properly investigate existence of custody determinations in other courts prior to filing registration and enforcement papers in a court, see this opinion out of the Emmet County Circuit Court, Family Division. There is some good law cited in the opinion as well, and see the footnotes.

Social workers as expert witnesses in family and child welfare cases

My guest blogger today is Daniel Pollack, MSW, JD, professor of social work at the Yeshiva University in New York, New York.  He writes:

Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as social work expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, wrongful death, commitment hearings, education, family custody evaluation, child welfare, adoption, and foster care.

As society gets more specialized and complicated, the courts are using the testimony of expert witnesses (such as social work expert witness, foster care expert witness, social worker malpractice and child welfare worker malpractice) to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case.

Should you opt out of Friend of the Court services?

Several regular contributors to the State Bar of Michigan's online discussion group have made some acute observations about requests to opt out of Friend of the Court services. These observations are crucial for men and women who are considering such an opt out. They are also food for thought for family lawyers faced with such a request from a client:

Jeffrey Zoeller, an experienced family lawyer from Lansing, Michigan said:

I am always suspicious when a client asks me about about a request from the other parent to opt out of FOC services. That raises a red flag.

Rights regarding custody & parenting time | Unmarried parents

Recently, the following issues were raised concerning the custody and parenting time rights of an unmarried father after a breakup with the mother.

After the breakup, the father was able to file for custody and parenting time because he and Mom had signed an Acknowledgment of Parentage. His status as a legal father was thus already established. Dad requested joint legal and joint physical custody.

Mom objected to his proposal and asked for sole physical and sole legal custody. She claimed that Dad had a history of domestic abuse, of being an absent and uninvolved father. In her opinion, Dad posed a risk to the young child as demonstrated by earlier incidents.

While Dad's motion is pending and before any order for custody or parenting time was issued, Mom allows Dad to have parenting time on the condition that the paternal grandmother would be there to supervise. Dad promises that he will exercise his parenting time at his mother's house. However, during one of the parenting times, the grandmother leaves to run errands. Dad and his girlfriend then put the 2 1/2 year old child in Dad's car without any proper car seat or proper child restraints.

Preventing parental kidnapping

On the ABA Listserv, we've been discussing ways to build orders that help prevent  parental abductions.  This is very important when there is a possibility of abduction to a  foreign country, especially one that is non-compliant or has demonstrated patterns of non-compliance with the Hague Convention. Of the signatories to the Hague Convention, Honduras is identified as non-compliant in the April 2008 Report of the Department of State Office of Children's Issues Document: "Report on Compliance with Hague Convention on the Civil Aspects of International Parental Abduction Convention." The report identifies the following countries as "demonstrating patterns of non-compliance":  Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela.

Home Alone | When is it appropriate?

Questions frequently arise during the course of a divorce about about how old one must be in Michigan to be a babysitter, about how old a child must be in Michigan before she can be left alone without a babysitter or daycare, and about whether older siblings can babysit for younger ones. When children may be with the non-custodial parent for a large portion of the summer, specific concerns often arise about whether the child can or should be left home alone.

This isn't an Ozzie and Harriet world anymore. I can remember when, in 1975, I felt perfectly comfortable to browse in the adult section while my three-year-old ran to the children's book area of Horizon Books in Traverse City to look for the book he'd come back clutching saying "This is the Richard Scarry book I need today!" Would I allow a young child to be unsupervised in a downtown store today? Absolutely not. Similar concerns are raised these days about leaving children unsupervised in their home.

Significant increase in unwed births reported by CDC

An alarming statistic was revealed on May 15, 2009. According to the Center for Disease Control, about 40% of all babies born alive in the United States are born to unmarried mothers.

The CDC report highlights are these:

• Childbearing by unmarried women has resumed a steep climb since 2002.
• Births to unmarried women totaled 1,714,643 in 2007, 26% more than in 2002. Nearly 4 in 10 U.S. births were to unmarried women in 2007.
• Birth rates have risen considerably for unmarried women in their twenties and over, while declining or changing little for unmarried teenagers.
• Non-marital birth rates are highest for Hispanic women followed by black women. Rates for non-Hispanic white and Asian or Pacific Islander women are much lower.
• Most births to teenagers (86% in 2007) are non-marital, but 60% of births to women 20–24 and nearly one-third of births to women 25–29 were non-marital in 2007.
• Teenagers accounted for just 23% of non-marital births in 2007, down steeply from 50% in 1970. [This is significant because it means that the initiatives to reduce teen pregnancy are really working!]

Child sexual abuse | High quality tools for use in detection & proof

Do you believe or does your client believe that a child has been sexually abused? A most important first step is to seek out capable, qualified and highly trained professional help. Your first call should be to Child Protection Services. [NOTE: The contact information for the agency near you in Michigan can be found here.] You should not attempt to elicit the details from the child yourself. This may seriously compromise prosecution of a child molester. There are many links below to resources that may be found online dealing with the tools used by experts to determine whether the abuse alleged has actually occurred.

Dance like nobody's watching; love like you've never been hurt

This has been the week that has demonstrated the incredible power of the Internet. Susan Boyle. Oh my! Susan Boyle. Yes, Susan's a plain Jane, but oh what an inner beauty, what an awesome voice, what spunk and what a down-to-earth personality! If you haven't seen Susan Boyle, you haven't been watching the news. Susan Boyle is such a sensation that embedding isn't allowed and the news reports say that as of today about 28 million people have watched her on YouTube on this video stream alone, and more than 10 million on several other feeds. BUT see more below.

This -- sent just now to me from a friend in California -- shows what appears to be a spontaneous event sparking the same kind of joy and celebration. Well, it turns out that 200 of those dancing were part of a preplanned event. But watch the spectators, busy travelers who get involved. Oh my! Wish I'd been there. A train station in Antwerp? Parents and children, young people, old people, hearing the muse and breaking out into dance? The message? Find the joy, whether it's in your family, your friends, your work, your random acts of kindness. Be there! Feel it! "Dance like nobody's watching; love like you've never been hurt. Sing like nobody's listening; live like it's heaven on earth."

Relocation motions where parents share custody

Another relocation case was recently decided by the court of appeals, Skeins v Mead (March 17, 2009) Docket No. 287426. In this case, the parents shared  joint legal and physical custody of the child,  alternating custody on a weekly basis. Both parents were, in fact, engaged in jointly raising the child in two home environments, although the father was periodically absent for military deployments. It was undisputed, other than the time of defendant-father's deployment to Kosovo and short training period on his return, he complied with the schedule. He is now employed by the National Guard as a trainer.

Relocation. The Plaintiff's motion was precipitated by economic hardship - lack of local employment which led her new husband to find a good-paying job in Texas and optimistic hopes by plaintiff to also land a job.

Does a state court have exclusive, continuing jurisdiction over custody issues?

In today's mobile society where parents and children move from one state to another after a court has made a custody determination, the question often arises, "Does the state that made the initial child custody determination continues to have continuing exclusive jurisdiction over modifications of custody orders?" The Michigan Court of Appeal ("COA") recently answered this question, relying on decisions from Oregon and California for assistance.

It is helpful to parents facing these questions to know how the courts will likely resolve them. A most important thing to remember is that where a parent continues to reside in the state that made the custody determination, the Uniform Child Custody Jurisdiction and Enforcement Act provides for continuing exclusive jurisdiction over the custody issue.

Representing yourself in a divorce or custody case

So you want to represent yourself in a family law matter. Your case might involve something as simple as a mutual and respectful dissolution of the marriage. Or it might involve division of assets and liabilities. Perhaps it involves something more more complicated -- disputes about child custody and parenting time. Can you do it? Should you do it? Consider this ad on the Minneapolis Craigslist, called to my attention by Alexander Rhoads, a family lawyer in Des Moines Iowa who participates with thousands of family lawyers around the country in the American Bar Association's Family Law Listserv. **

The posting said:

Long distance parenting

    Families today are experiencing separations that bear some similarities to those of divorced couples. The economy has forced some parents to live long distances from each other when relocation of the entire family is not possible. Two-career families are becoming a norm. Technology makes it possible for two parents to raise children “together” even when one of the parents resides a long distance from the family.

How divorced parents can help children survive the holidays

Many children of divorce feel caught in the middle of their parent’s battles during the holiday season. Holidays should be a time for kids to experience the love, joy and magic. Instead, many children are confused, frustrated, sad and angry.

The stress divorce causes children during the holidays

The holiday season may be more difficult than usual for children of divorced or separated families.

• The excess chaos may cause children to feel anxious.
• Children may feel caught in the middle if their parents fight about who spends what time where.
• They may feel resentful when they must leave friends and family to stay with a non-custodial parent.

What are the risks of parental kidnapping & how can you prevent it?

Given Michigan’s disastrous economy, families are increasingly mobile. The prospects of a parent removing children from Michigan in violation of a court order or in the absence of a court order have increased as a result. Parental kidnapping is a felony punishable by 1 year and 1 day in prison. However, because of the potential harm to children, it is important to focus on prevention.

On June 14, 2007, legislation was initiated in Michigan that would help parents seek court intervention to prevent parental kidnappings. House Bill No. 4925  [Last accessed on November 22, 2008]. The Model Act is called the Uniform Child Abduction Prevention Act. Unfortunately, that legislation has languished in Committee ever since.

Family law experts around the country have actively supported this uniform law. The question for Michigan parents and family lawyers is this: How can this Model Act help prevent and/or resolve parental abductions?

Home Alone | Is your child ready for this?

One question frequently asked by parents is “How old should a child be before he can be left home alone?” Often, I’m asked this question when holidays are coming up and parents will be at work, but children won’t be in school. The question is asked even more frequently as summer vacation approaches.

Of course, there is no simple one-size-fits-all answer. This decision is complicated because much depends upon the individual child and also family dynamics. A parent has to consider not only whether his or her particular child is “old enough,” but is ready enough to be left home alone. The issue becomes more complicated if there are younger siblings. Is the oldest child ready to stay home alone and to be “in charge of” the younger children?

New York same-sex custody case

New York Law School professor Leonard S. Link writes at his blog "Leonard's Link" today:

New York County Supreme Court Justice Harold B. Beeler has allowed NY Court of Appeals Chief Judge Judith Kaye's dissent in the 1991 case of Alison D. v. Virginia M. To guide his steps in ruling that a woman should have a hearing to attempt to establish that she is a “de facto parent” of the child born to her former same-sex domestic partner, who was also her New York City registered domestic partner and her Vermont civil union partner.  Debra H. v. Janice R., No. 106569/080.

In what he characterized as a case of first impression, Justice Beeler found that the parties’ entry into a Vermont Civil Union at the time that one of the women was pregnant "is strong evidence of the parties' intention to create familial bonds for their and [the child's] benefit."

You may read his article here: New York Trial Judge Rules that Lesbian Co-Parent May See Custody and Visitation Rights

Joint custody awarded to same-sex partner

A district judge on Monday ruled in favor of a Turah, Montana woman who sought parental rights to children adopted by her former same-sex partner.

Michelle Kulstad sought joint custody of two children - an 8-year-old boy and a 5-year-old girl - adopted by Barbara Maniaci.

"To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color," Judge Ed McLean wrote.

How to choose a divorce or custody lawyer

Finding a good divorce lawyer may not be easy, but once it essential that you do so once it is apparent that divorce is inevitable. Word of mouth is often a good first step. Talk to those you know who’ve been through a divorce. Ask your friends or family who reside in the same geographical area for a recommendation. Often the local bar association will have a referral service. Alternatively, do an Internet search using key words that target a few specifics that you anticipate will apply in your divorce. Your search might look something like this:

• divorce lawyer your town, Michigan
• child custody lawyer, your town, Michigan
• property division, separate property, your town, Michigan

When does a state have exclusive, continuing jurisdiction?

In today's mobile society where parents and children move from one state to another after a divorce or custody action, the question often arises whether the state that made the initial child custody determination continues to have exclusive, continuing jurisdiction over modifications of custody orders. The Michigan Court of Appeal ("COA") recently answered this question, relying on decisions from Oregon and California for assistance.

Native American Mother may withdraw consent to guardianship

In an interesting case, Michigan's court of appeals (COA) decided yesterday that the Indian Child Welfare Act applies to foster care placement of an Indian child, guardianships and consents for adoption. The court held that when a mother withdraws her consent to the action prior to termination of her parental rights, the trial court must dismiss the action and return the child to the Indian parent whenever the child is an enrolled member of a tribe regardless whether the placement is voluntary.

Reigh Boss kidnapping | Child recovered unharmed

Thanks to this case's high profile, extensive media coverage, and thousands of tips from concerned citizens, FBI agents were successful in staging a recovery operation that involved separating Clark Rockefeller from his daughter, 7-year-old Reigh Boss, arresting Rockefeller and recovering the child. The recovery was in Baltimore, Maryland where Rockefeller had leased a small carriage house. The child was unharmed and her mother was quickly on her way to get her.

Parental kidnapping | Risk factors Part 2

On July 29, 2008, I wrote about the risk factors that predispose  parents to kidnap their children. See Parental kidnapping | Risk Factors.

Today, the New York Daily News reported that, in fact, Clark Rockefeller had talked last Christmas to friends about kidnapping his daughter Reigh. According to this report, Rockefeller was "so crushed when his ex-wife moved overseas with his beloved 7-year-old daughter that he told pals last Christmas, 'I may have to kidnap her.' "

How can a parent modify a prior custody order?

Non-custodial parents want to know what the courts will consider as sufficient evidence to warrant modifying an existing custody order. It’s well-established that the court will not re-visit a previous custody determination unless the party requesting the custody modification can prove that there has been a change in circumstances or good cause arising since the most recent custody order.

Parents ask: What does that mean? It’s become well-established that it means this:

Family lawyer's duty to warn of threats of harm

Some time ago, the State Bar of Michigan Listserv discussed whether lawyers who receive information from a client that communicates a credible threat of danger to an identifiable third party have a duty to communicate the threat to the third party and/or to law enforcement agencies. That common law duty to warn arose in Tarasoff v Regents of Univ of California, 17 Cal 3d 425; 551 P2d 334 (1976) and it was in that context that we discussed it.

A new Michigan Court of Appeals case makes a lawyer’s concern about common law duties to third parties even more compelling.

Parenting Plan Calculators, Planners, and Trackers

Family lawyers are often challenged to help clients work out parenting-time plans that allocate time with the child (or children) between the parents.  Ten years ago, Stephen J. Harhai described the problem like this: "The fundamental problem in working out time-sharing issues is that it is hard to visualize or calculate the effect of a given plan without a lot of grunt work. We have spent untold hours marking calendars, counting days, writing explanations, and generally driving ourselves crazy getting a handle on complicated time-sharing arrangements." ["Tools of the Trade" column in the Family Advocate (Vol. 20, No. 3)]

Personal protection order prevents parent's contact with child

In Hayford v Hayford, Docket No 276176, decided June 10, 2008 [For Publication], the Michigan Court of Appeals upheld a personal protection order that prohibited a non-custodial parent from contact with his 18-year old son.

In this case, the respondent father apparently had visitation rights with his son, the petitioner, pursuant to an order of custody under the Child Custody Act (“CCA”). The father argued that the PPO impermissibly modified the parenting time order. But the COA held that, under the CCA, once the child attained the age of 18, even though he was still in high school, and even though the father was required to support the child and provide him with medical care until the child’s graduation from high school, the father no longer had a right to parenting time, citing Bert v Bert, 154 Mich App 208, 211; 397 NW2d 270 (1986).

Sixth Circuit refines standards in Hague Convention cases

In Robert v Tesson, ___ F3d ___ (2007), the Sixth Circuit Court of Appeals decided a case on November 14, 2007 that refined the legal standard to be applied in determining a child’s “habitual residence” under the Hague Convention. The Sixth Circuit court heard oral argument in this case in October 2007 and rendered its 15-page decision about three weeks later, in response to a letter received from the United States Department of State, Office of Children’s Affairs that emphasized the Hague Convention’s command that Hague Convention matters be resolved “expeditiously.”

The Robert Court held as follows:

Mom's relocation of 91 miles causes change in custody

The Michigan Court of Appeals in a published opinion released on April 8, 2008 makes it clear that relocations that modify parenting time to such an extent that a change in the established custodial environment results, can be the basis for a change in custody.

In Powery v Wells, the mother [“Mom”] moved from Ludington to Traverse City, a distance of 91 miles. Dad filed a motion to change custody and Mom countered with a motion to modify parenting time. Mom claimed that since her move was less than 100 miles, it was insufficient to constitute a change in circumstances and that Dad wasn’t entitled to an evidentiary hearing.

Finding your child after a parental kidnapping

There must be something in the water. I handled two parental kidnapping cases in March. This makes five cases for me in the past year. In all of these cases the children were successfully located and returned to the custodial parents within 24 to 48 hours. Other parents express fear that their child may, too, be at risk.

Prevention of parental kidnapping is not always fool-proof. About 800,000 children were abducted in 2003 alone, the last year for which statistics are available. Fewer than 1% of these abductions were  by strangers. So parents want to know: What can I do to make sure that I can find my child or children if the non-custodial parent takes off with them?

Unaccompanied minor rules: Children traveling alone

Elizabeth Sadowski posted the following helpful information on the State Bar's listserv on Friday. Summer is coming and many children will be traveling from the home of the custodial parent to the non-custodial parent's home for parenting time.

Liz says that "Policies for unaccompanied children differ among airlines, so you need to check the website for that particular carrier. " She did, however, post the rules for US Air and for Northwest Airlines.

International parental kidnapping | Can parent avoid return of child?

As many of my readers know, parental kidnapping is a topic of great interest to me. Thus when James Ryan of Plymouth Michigan sent me the decision handed down by the Sixth Circuit Court of Appeals in Simcox v Simcox, Case No. 07-3911 (December 28, 2007), I set it aside on my desktop to read and for comment. The case is important because it provides standards for lower courts to follow when assessing a Hague Convention petition for return of a child to the country of habitual residence when the defense is raised that return will pose a "grave risk of harm" to the child. The question is, of course, how should the court determine whether there is a "grave risk of harm?"

Divorce and Military Families

The stress faced by military  families, frequent moves and deployments can spell disaster for military families. For you, as for most families, divorce can be a life tragedy. You and your spouse entered into marriage with plans for a happy and long future. Perhaps you have children who are young and vulnerable. Divorce can leave your children feeling afraid and uncertain about their future. It can also leave you feeling vulnerable and lost, particularly if you are far from home, without the support of friends and family.

A frequent question asked by military spouses is whether they have to file for divorce in the State where they are based and their children are living, or whether they can file in Michigan. This is particularly true when Michigan is the place they call "Home."