UPDATES IN MICHIGAN FAMILY LAW

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."

What if father opposes adoption of child born out-of-wedlock?

I am sometimes asked whether a biological father must automatically lose his rights to a child conceived out of wedlock if the mother places the child for adoption and he hasn’t been involved up to that point in time (i.e, he's a "do-nothing father.")  A more serious question arises when the mother wants to place the child for adoption, isn't ready to be a single parent, feels strongly about not involving the biological father, and wants the child to have a 2-parent family.

In a case for publication, the Michigan Court of Appeals has answered this question for us. The court’s decision provides family lawyers dealing with adoption cases with some practice pointers in how to deal with similar cases in the future, and certainly informs use about how we might counsel a mother-to-be so that she has more control over what happens.

Here is a brief chronology of what occurred:

Parenting time | parent with same-sex partner

I was asked today about whether a court would deny overnight parenting time to a parent who, after divorce, is involved in a same-sex relationship with a partner who resides in that parent's home.

As I've said before, every custody and parenting time case will ultimately be decided on its own facts. It is always helpful to know, however, how case law in the State where the parent resides has dealt with this issue. The only reported decision in Michigan is very old. See Irish v. Irish, 102 Mich App 75 (1980). In Irish, the trial court found that a lesbian relationship was detrimental and prohibited overnight visits of partner during parenting time. But I did find a terrific resource online that gives a good overview of how these cases have been resolved more recently.

SMILE: Midland County's online resource for parents

Midland County has developed an online booklet for separating/divorced parents. SMILE: Start Making It Livable For Everyone  This booklet has three goals:

1. to provide information to help parents better understand the effects of divorce,
2. to help parents understand the needs of their children, and
3. to promote children's healthy adjustment to divorce.

Having reviewed it, I recommend you bookmark it and refer to it frequently if you are a divorcing or divorced co-parent. Lawyers might consider sending their clients a link to it.

I give this resource an A+. My only comment is that many parents would find it more useful as a PDF brochure that could be stored on their computer's desktop. Ah . . . here's Oakland County's version of the same material in a PDF format that can be read online, printed, or downloaded to your computer.

Should step-siblings be kept together?

I have been frustrated in the past when a trial court has refused to place any weight on the benefits of keeping step-siblings together. Granted, while courts normally put a lot of weight on keeping siblings together, I've sometimes seen families where that was not an appropriate thing to do. Today, divorcing families not uncommonly involve step-siblings.

The results in any family law case will depend upon the specific facts of the case. Thus, often counsel my clients to read some of the cases that are similar (or different) from theirs so that they can see how the trial court will likely decide their cases. I find that my clients are happier when they have realistic expectations so that they can make informed decisions that do not lead to disappointment. Knowledge is empowering to them. Thus, a recent case piqued my interest. It will likely be shared some clients to give them hope or to help them develop expectations that are reasonable.

Relocation | Parent remarries & moves out-of-state

Today's society is extremely mobile. The economy in Michigan, for example, is forcing some parents to relocate to states where suitable employment is available. In addition, divorced parents are increasingly likely to look at an online dating services for introductions to suitable new mates. Very often, a marriage to someone met on line results in relocation of a parent. What happens if the remarried parent wants to move with the children? Does it matter if that parent has sole legal custody? How about cases where the parents share joint legal and joint physical  custody? What if they share joint legal custody, but the parent wanting to relocate has primary physical custody?    

Child Custody, support and parenting time | Binding arbitration

A case decided on January 5, 2008 by the Michigan court of appeals involved a challenge to the decision of the arbitrator where the parents had agreed to binding arbitration. The parents, who were never married, has a dispute about child custody, parenting time, name of the child, and support. An ex parte order awarded sole legal and sole physical custody to the mother and ordered the father to pay support. The father objected. The parents submitted the case to binding arbitration.

Residency requirements for filing divorce

A party must reside in Michigan for at least 6 months and in the county where the divorce is filed for at least 10 days. If those jurisdictional requirements are not met, the divorce can be dismissed for lack of jurisdiction. In Berger v Berger __ Mich App __, __ NW2d __ (2008) (Docket No. 279025 decided January 31, 2008), the Michigan court of appeals dealt with a key issue of residency.

Model parenting time plans

If ever there were a time to discard the concept of "one size fits all," it's when parents or courts are fashioning parenting time schedules for minor children. Clearly, this is one instance where the same plan doesn't work for all children or for all families. That is why a model plan can help parents work out the details.

It doesn't take a rocket scientist to realize that an infant can't spend one week with mom and one week with dad without harm. Children who are 18 months to 3 years old have a different set of developmental needs.

Modification of joint legal custody

      In other areas of this Blog, I write about the significance of having or of not having joint legal custody. Today, I write to make clear what usually makes a difference in whether parents initially--before any major child custody contest, can be awarded joint legal custody. At the conclusion, I explain some ramifications.

      In cases where one parent has not been involved and has to be "dragged kicking and screaming" into a family law case, it's not unusual for the court to award sole legal custody to the other parent. In my practice, I usually see this in either a paternity case or in a family support case.

Who gets custody of pets in a divorce?

It's true, I know, that many people are as attached to their pets as they are to their children. I know some folks who have no children and their pets ARE their "children." Thus, as Liz Sadowski has often pointed out on the State Bar of Michigan's Listserv, deciding who gets custody of "Fluffy" or "Fido" after divorce, annulment or entry of a judgment for separate maintenance can often be as sticky a wicket as who gets the Tupperware. Gee, I hate those arguments over trivial, replaceable personal property like Tupperware. Not that I am suggesting for a minute that Fluffy or Fido are "replaceable." But did the Michigan State Legislature have to get involved?

Should a mother and her boyfriend falsely claim he's the father?

A question was posed today whether a man and woman commit perjury by signing an affidavit in which each knowingly and falsely states that the man is the child's "natural father," knowing that he is not the biological father. The answer to the question is not likely to be found in a hair-splitting analysis of what a "natural father" is.

Can you say "perjury?" One analysis might take into consideration the fact that in 2004 a woman who filed a false affidavit  was successfully prosecuted for perjury for making a false statement in a domestic relations case. The case is State v Lively, 470 248 (2004). The Court's analysis of the perjury statute bears a reading.

Don't let the "trees" block your view of the "forest." What's the big picture? I would not end my analysis with the perjury issue, even if I concluded that there's little likelihood that either party will be prosecuted for this felony and/or that the statute of limitations might run prior to the time that anyone ends this cohabitation relationship or before the real biological father with an ax to grind raises the perjury issue. That is because there are far larger issues at stake here.

What does the client stand to gain by signing the Acknowledgment? What are the specific protections? What are the specific (and real) detriments? Because the legal interests of the biological mother and the man willing to acknowledge as a father are so very diverse, the real problem is to figure out whether the client is well-served by signing a false Acknowledgment of Parentage and whether he or she has any further benefit or detriment arising from this action. [Here's the State's Form DCH-0682w].
 

Can a custody issue be "transferred?"

I am often asked whether a child custody matter can be "transferred" to another State after a parent moves from the State where the custody determination was entered. The answer to whether a court in another State can exercise jurisdiction is this: "It depends." All child custody matters are fact-driven.

Parental Kidnapping | Prevention and Response

Family abductions bring into play civil and criminal laws at state, national and international levels. There are several types of parental abduction. Sometimes, a parent may flee with a child temporarily, hoping to gain an advantage in a custody dispute to parents or hoping to find more favorable laws in another state.  [Some states, for example, have mandatory joint custody laws.] Other times, a parent who has lost a child custody battle in one state may cross state or international lines, hoping to find a friendlier court that will modify the custody order. Other times, a parent takes a child intending to permanently deprive the other parent of parental rights. 

Parenting time | Holidays and more

Holidays are stressful enough without the added tension caused when children have to transfer from one parent to the other after separation and divorce. The following issues are ones that parents cooperate to resolve in a way that doesn’t put kids squarely in the middle:

That special day. Parents can get all hung on those "special" holidays . . . Halloween, Thanksgiving, Christmas. Christmas seems to be the biggest problem.

Some child development experts recommend that families work together to develop new “family traditions.” In other words, rather than a Christmas parenting time plan that looks like this:

Lap babies | Safety for infants on airliners

In this day of economic necessity and parent relocation because of employment out of state, family lawyers are seeing more and more cases of minor children being transported by air to and from parenting time with a non-custodial parent located some distance away. Thus, the New York Times caught my attention today.

The 100-mile rule | Effect of sole legal custody

I thought I would check on the status of Spires v Bergman, Court of Appeals Docket No. 276722. In this paternity case, the mother had sole legal and sole physical custody and was granted permission by the trial court to relocate to another State.

In Michigan, a court rule MCR 3.211(C)(1) requires that all custody and parenting time orders contain a provision preventing a change a child's residence from Michigan unless the parents agree or the Court approves the move.

The father claimed on appeal, among other things, that the trial court was obliged to apply the 100-mile rule and to deny the relocation motion. He also claimed that the trial court should have considered the D'onofrio factors before granting the order.

The trial court affirmed the trial court's decision that the 100-mile rule did not apply because the mother had sole legal custody. This is in accord with the statute, MCL 722.31.

An application for leave to appeal was filed on October 2, 2007. The Michigan Supreme Court denied leave on November 27, 2007. Docket No. 134977. 

You may read an earlier discussion of the Spires case here.

Should a child be called as a witness?

In a case for publication, Surman v Surman, __ Mich App ___, __ NW2d ___ (2007) decided December 4, 2007, the Michigan Court of Appeals held that a child may be called as a witness at a child custody trial to testify about the child’s allegations of abuse at the hands of a parent.

Here, after allegations of child abuse were made by a child, his father filed an ex parte motion to suspend the mother’s parenting time. The father claimed that the mother had told the child to lie to his counselor. An ex parte order was entered on August 1, 2005. Jane Surman filed a motion to rescind that order and to transfer custody to her from Joseph Surman. She attached a protective services report to her pleading. The court temporarily placed the child with his mother with an ex parte order issued on August 9, 2005.

Subsequently, a child custody trial was had in November and December 2006. Jane Surman’s attorney advised the court that he intended to call the child, now 12, as a witness. Joseph Surman’s attorney objected. The parties were told to submit briefs on the issue. Ultimately, the trial court held that the child could testify about the alleged abuse.

New tool to help children cope with high-conflict divorce

If you’re a parent going through a tough divorce with custody and parenting time issues and you believe that your children are suffering from stress caused by the fighting, consider a new resource I learned about just today.

Mandatory joint custody | A Family Court judge's view

 I had the distinct pleasure to meet Judge Jon Van Allsburg of Grand Haven, Michigan at the recent  6th Annual Family Law Institute in Plymouth, Michigan. Judge Van Allsburg had emailed an extremely informative post to the State Bar of Michigan's Family Law Listserv on October 12th about the proposed HB 4564 dealing with a "presumption" of joint custody. I asked him if I could share his message with the folks who read Updates in Michigan Family Law and he graciously agreed. I appreciate Judge Van Allsburg's contribution and his wisdom. The following is his message:

"The discussion of proposed HB 4564 appears to be deteriorating, as recent posts seem to shed a lot more heat than light on the subject.

"However, in the interest of contributing something beyond anecdotes, I'll quote some relevant statistics from my statement read to the House Committee on Family and Children Services last December (with respect to former HB 5267, which is now reintroduced as HB 4564):

Online Divorce: Warning from Attorney General

I was recently contacted by a reader of this Blog who asked me for information about whom to contact to report victimization by Michigan Divorce Online. Earlier this year, the State Bar of Michigan Family Law Section became aware that people were being taken advantage of by this online "company" that took money and critical information from consumers, promised to complete and to send them documents that they could file to complete a low-cost divorce, and then sent them nothing, or sent them documents that did not conform to the promises made.

One of the most serious risks consumers faced was credit fraud since Michigan Divorce Online required the consumer to provide such highly confidential information as social security numbers and other financial information.

What can consumers who have been victimized by Michigan Divorce Online or similar web-based companies do? Michigan's Attorney General Mike Cox issued a press release in March 2007 that warned consumers and also gave them relevant advice about how to proceed. I am re-publishing this press release below for the benefit of my readers. Please note that even though 7 months have elapsed since this press release, there continue to be many, many such online services looking for the unwary consumer. A simple Google search today "divorce online forms" yielded nearly 2 million results.

There's an old saying: "Let the Buyer Beware." Don't be one of those consumers who fits P.T. Barnum's old saying: "There's a sucker born every minute."

Is it legal to tape record?

Parents often ask me whether it's OK if they tape record telephone calls between themselves and their co-parent or between their co-parent and the children.

Sometimes, recordings might be made by videotape. What's legal and what is not?

You'll find an excellent reference guide on the website of The Reporters Committee for Freedom of the Press. Can We Tape?

Mandatory joint custody? Here we go again . . .

James P Ryan, family lawyer from Plymouth, Michigan reminds Michigan family lawyers that the push is on again for mandatory joint custody. He provides a link to pending legislation.

Here are comments from ranking members of the State Bar of Michigan Family Law Section:

From Scott Bassett: Family Law Appellate Lawyer:

The bill not only creates a presumption for joint physical (substantially equal time) and joint legal custody (decision making), but also provides that the presumption may be rebutted only by clear and convincing evidence of parental unfitness or unwillingness to care for the child, or where a parent moves out of the child's school district.  It isn't even a "best interests" test.  This would be a major change (for the worse) in the way we view child custody issues.  When the child's best interests are no longer paramount, aren't we treating kids as the property of their parents?   

Home Alone: Part V

There has been a lot of interest in the issue of whether children should be left home alone and of how old children should be before they can be left alone. The interest is shown by the number of parents from all over the country who have come to this Blog seeking information.

We discussed this topic on the State Bar of Michigan Listserv not long ago. Several family lawyers cited examples of why children should not be waiting alone at a bus stop for even 5 minutes just so Mom (or Dad) could get to work on time.

Then came this chilling reminder of two lost boys. One of them, Ben Ownby, 13 years old, was forcibly kidnapped in January 2007 in Missouri as he was walking home alone from his school bus stop. An anonymous call led to the recovery of Ben 4 days later and also the recovery of Shawn Hornbeck, now 16, who was snatched in 2002 while riding his bike and held for more than four years. Both had been held in captivity and sexually abused by Devlin.

What more can be said? This isn’t an Ozzie and Harriet world. Parents all want to keep their children safe. Parents need to safeguard their children. Even though state laws might lead one to conclude that 11 or 12 is the appropriate age when children can be left alone, clearly that was not the case for Ben and Shawn.
You can read the New York Times story here: Man Sentenced to Life for Kidnapping Boy. A one-time registration may be required.

Here are some FAQs and some safety tips for parents and children:

Home Alone: Part IV

Our discussion continues on the Listserv of the State Bar of Michigan's Family Law Listserv. Section member Mark Crane posted the following on Tuesday October 9, 2007:

We had a funeral service at Lake Orion High School last week for two brothers, ages 14 and 16, who were killed the preceding weekend in a car accident.  Driving home from a cross-country  meet, they ran a stop sign and their Honda Civic was hit by a pickup truck.  As if that is not suffering enough for one family, their older brother is in critical condition at a VA hospital in Texas, having been injured in combat in Iraq as a result of an IED explosion.  Statistically speaking, car accidents and even injury sustained during combat are real risks to young people.  So are certain types of childhood cancers, drowning, suicide, abuse at the hands of parents and other family members, and injuries sustained in the home.  Statistically speaking, abduction by strangers is not even a blip on the screen.  I am not suggesting that this is a risk to be ignored.  However, most parents would do well to spend less time worrying about this particular risk and more time focused upon the things that cause the other 99.99 percent of childhood mortality.  I, for one, can't imagine making a living preparing reports like this one, titled "Deaths:  Final Data for 2003," but for those who are interested in statistics regarding causes of death, see the following from the CDC:

http://www.cdc.gov/nchs/data/nvsr/nvsr54/nvsr54_13.pdf

 

Mark E. Crane
Mark E. Crane, PLLC
950 West University Drive, Suite 102
Rochester, MI 48307

Technorati tags: child care, babysitter, babysitting ,
childcare

Family Abductions: Hague Convention cases

Sometimes a non-custodial parent abducts a child and takes the child to another country, refusing return to the custodial parent. Many countries are signatories to The Hague Convention, an international compact that helps custodial parents recover children who are abducted and held in foreign countries. A valuable resource, a practitioner's guide   to litigating Hague Convention cases,  has been created and is made available to the public and to practicing attorneys by the International Missing Children’s Division of the National Center for Missing & Exploited Children. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts.

The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child. Other valuable Hague Convention resources are available online at  www.missingkids.com.

Thanks to Diana Skaggs of Divorce Law Journal for bringing this to our attention.

Technorati tags:

parental kidnapping, parental abduction,

Home Alone: Part III

Recently, I blogged the issue of leaving children home alone. The interest in these Blog articles has been immense. Parents all over the country came -- mostly via Google -- to Updates in Michigan Law looking for an answer to the question "how old does a child have to be before the parent can leave him/her home alone?" Primarily, it appears that parents are concerned because the other parent fails to provide proper care and supervision. This could, of course, form a basis for modification of an existing custody or parenting time order.

This week, the issue arose again on the State Bar of Michigan's Family Law Listserv.

Parental Kidnapping: How the left-behind parent can recover the child

Several lawyers asked today about what was the most expedient way to handle getting a move-away parent to bring a child back to Michigan to the "left-behind" parent. Michigan, like most States, has enacted the Uniform Child Custody Jurisdiction and Enforcement Act. [UCCJEA]. This uniform law says that initial child custody determinations should be made by the child's "Home State," if there is one.

‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding. * * *  A period of temporary absence of a parent or person acting as a parent is included as part of the period.” MCL 722.1102(g)

Because I am the Mom!

We all need to lighten up on the topic of parenting. Parenting is a tough job. Some of us parent the way we were parented . . . and live to regret that.

Here's a video of a mom who has a handle on how hard parenting is and how to keep a sense of humor. She's condensed 24 hours of what a mom would say to her kids to 2 minutes and 55 seconds -- to the tune of the William Tell Overature, no less. I noticed that the audience laughed in the same places I did.

Australian dads fight for equal access to children

It isn't only fathers in Michigan who are fighting for equal access to their children. It's happening everywhere. Just in from Australia is this press release from Fathers4Equality:

"Ash Patil, President of equal parenting group Fathers4Equality, states that despite it still being too early to pass judgment on the application of the legislation by the courts, the intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006 has been quite clear:

(i) That there is a rebuttable presumption of equal joint parental responsibility.

(ii) That if this presumption is not rebutted (through credible concerns for the child's safety, for instance), then the Court must consider an equal parenting time arrangement, or whatever shared parenting time arrangement is requested.

(iii) If such an arrangement is not awarded, the Court must clearly explain why."

To read the rest of this article concerning joint custody legislation in Australia, see here.

Technorati tags:  joint custody, Fathers4Equality

When parents cannot agree on schools

With more parents sharing custody today than ever before, when one parent moves -- even within the circumscribed 100 miles -- there may be disagreements about which school the children will attend. Sometimes the choice is easy -- a good small town school district vs. a  country district that is impoverished and has no busing for transportation. Other times the choice is more difficult. Increasingly, as the Detroit News reports today, family court judges are being asked to decide which school the kids will attend, because the parents cannot agree.

The Detroit News article is interesting and shows the difference between the school system in Howell and the school system in Grosse Pointe.

Did you know that you can compare schools when preparing a case for a client by using www.schoolmatters.com? This is a service of Standard & Poor, and compares schools based upon performance of students on standardized tests, teacher-pupil ratios, and other critical factors.

How to get the trial court to consider the Friend of the Court report or recommendation

In Dumm v Brodbeck, decided on July 17, 2007 (approved for publication on August 28, 2007), the COA clarified the issue of whether the trial court may use the FOC report or recommendation.

In Dumm, the father filed a motion requesting modification of custody and the referee denied the motion. Incredibly, there was a de novo hearing that followed the same day. [Read the opinion; you'll see why this occurred. Apparently repetitive motions by the father exasperated the referee.] There's an important practice pointer in the COA opinion about how to get a trial court to consider the FOC report or recommendation:

"Further, the trial court properly considered the FOC recommendation and the testimony of Referee Savin. The Michigan Rules of Evidence do not apply to a trial court’s consideration of an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g), as in this case. MRE 1101(b)(9). In earlier versions of this court rule, the trial court was permitted to base its review solely on the FOC record only if the parties consented. Cochrane v Brown, 234 Mich App 129, 132; 592 NW2d 123 (1999). However, recent amendments of the statute and court rule have lifted this restriction, and the trial court is no longer prevented from considering an FOC report or recommendation if it also allows the parties to present live evidence. MCR 3.215(F)(2); MCL 552.507(5)(b), (6); 2004 PA 210. As noted supra, defendant neither asked to present live evidence before the trial court nor presented any documentation or affidavits to support his allegations. The October 11, 2006, hearing before the trial court satisfied the requirements in MCL 552.507(4) specifying that a trial court “shall hold a de novo hearing on any matter that has been the subject of a referee hearing” on the written request of either party or by motion of the court. Contrary to defendant’s assertion on appeal, the trial court properly reviewed the FOC record and issued a proper order in reliance on the FOC recommendation."

    You can read Dumm v Brodbeck here.

Technorati tags: child custody parenting time , child custody , parenting time ,
visitation

Relocation: Parent with sole legal custody can move without D'Onofrio hearing

On August 21, 2007, in Spires v Bergman, the Michigan Court of Appeals decided in an opinion for publication that where a parent has sole legal custody of the child at the time of the proceedings, the so-called “100-Mile Rule” does not govern that parent’s request to change the child’s domicile. As a result, the trial court properly declined to consider the factors of MCL 722.31(4).

In deciding this case and in interpreting the statute, the COA said that when the Legislature codified Michigan’s usage of the D’Onofrio factors,  it concurrently chose to expressly exempt custody cases in which the relocating parent has sole legal custody.

The father in Spires argued that even if the statute did not apply, the trial court was required by common law to consider the D’Onofrio factors [1] in all change-of-domicile matters, even those where one parent had sole legal custody. The COA rejected this argument, holding that the plain language of MCL 722.31(2) has altered this practice. Thus, the statute exclusively controls when and whether a court is required to use of the D’Onofrio factors in change-of-domicile cases. Since the statute expressly exempts cases where one parent has sole legal custody from the D’Onofrio factor consideration.
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[1]    The so-call