UPDATES IN MICHIGAN FAMILY LAW

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!]
  

The CDC report may be read or downloaded here. http://tinyurl.com/ovgd4x

Research has shown strong links between illegitimacy and poor outcomes for children. In other words, these babies are at far greater risk than infants born to married parents for living in poverty, being victims of abuse or neglect, experiencing problems in school and with juvenile delinquency or living in foster care. 

The high incidence of non-marital births is something that I see every day in my practice. These cases present as neglect or abuse cases, as custody or parenting time disputes, as child support cases or as parental kidnapping cases. Sometimes my clients are mothers; sometimes the father is my client. Often the Acknowledgment of Parentage Act will have an impact initially because that Act gives the mother initial custody. In other words, if the parents are married, each parent has a right to physical custody of the children. If the parents are unmarried, the mother may remove the child from the home shared (or not) with the father. She has the freedom to travel and may leave the state of Michigan before the father can protect his parental rights.

Sometimes (usually) the Uniform Child Custody Jurisdiction and Enforcement Act can help the left behind parent protect his or her rights. But sometimes the particular facts of a case do not compel that result.

When the parents have lived together, they have sometimes accumulated property. If that is real estate and they've been poorly advised and taken titled as joint tenants with rights of survivorship additional and significant legal problems arise. If one of the parties has moved into the other's home and made financial contributions, unless there is a marriage to dissolve, the non-owner usually receives no reimbursement for his or her hard-earned dollars. If the relationship has been a long-term one, the financial advantages to the titled party are significant and the financial detriment to the non-titled party can be crushing.

While the economic slowdown has significantly reduced the ability of people to seek out legal representation, the need for the help of a lawyer to protect a parties' rights to custody, parental relationships (parenting time), and to protect property rights that are often significant should warrant those who are unmarried to seek out a skilled family lawyer to help them protect their rights.

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.

Can a dad be ordered to pay support if he's been deprived of a relationship?

A reader asks if a biological father who has been deprived of establishing a parent-child relationship by the mother -- who is hiding behind her marriage to another man -- might later have a child support liability. The answer to the question is yes, there is a risk that this might occur.

Imagine being deprived of a father-child relationship with a child you know is yours. Imagine that many years go by. And then imagine that the mother divorces her husband, who then refuses to support the child and disavows paternity.

Parentage - When Mom is married to another man

As many of my readers know, I have written extensively on the topic of parentage issues arising in cases where the mother is married to another man. If a child is conceived and/or born while the  mother is married, her husband is presumed by Michigan law to be the natural and legal child of the child. If the mother chooses to keep the biological father out of the child's life, he has no legal right to pursue or exercise any parental rights. Frequently, biological fathers are denied the right to see their children. Often this occurs even when the father has already formed a bond with that child.

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.

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.

Rights of biological father | Biology isn't everything

What are the rights of a biological father if, after birth of his child, the mother has signed an  acknowledgment of parentage with another man? Michigan's court of appeals has answered this question after two trips to the court of appeals. These seem to be the facts of the case before the COA in Sinicropi v Mazurek, [Docket No. 281726 decided July 1, 2008] for publication:

1999: Woman meets Man. They have a  relationship. They split. She has a relationship with Man No. 2. They  split, and she goes back to Man No. 1. She has a baby and they sign an  acknowledgment of parentage making Man No. 1 the baby's "legal dad."

2001. Woman and Man No. 1 split again. Man No. 1 files a custody action and  Woman and Man No. 1 consent to an order of joint legal and joint physical custody.

2004. Woman moves to another city. Man No. 1 sues for custody and gets full custody. Woman doesn't like this. Hmmm. Perhaps he's not the "real" Dad. So Man No. 2, woman and child all take DNA tests. Voila! Man No. 2 is the  biological father. That must mean Mom wins -- that she can get rid of Man  No. 1 (now Legal Dad), because she and Biological Dad can get the court to revoke the acknowledgment of parentage in order to cut Man No. 1 (Legal  Dad) out of the picture! The child is now 5 years of age and the only  "father" he has ever known is the Legal Dad.

Will Mother's plan work? Remember that the facts of each family law case are unique. Thus we are not surprised when the answer, according to Michigan's Court of  Appeals is: "It depends."

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."

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."