UPDATES IN MICHIGAN FAMILY LAW

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.

Michigan child support pleas flood courts

According to a Detroit News article today, requests for modification of child support orders are flooding Michigan's court system. And many of those requests are being granted. Couple the lowering of child support with a loss of health care benefits where jobs and insurance plans have evaporated . . . and it's clearly creating hardship all around. The article offers access to information and resources especially useful to parents who have no attorney access to guide them.  Read Michigan child support pleas flood courts here.

Continuing, exclusive jurisdiction under UIFSA | Modification of support

The Indiana Supreme Court recently reversed a ruling by the court of appeals that the Full Faith and Credit for Child Support Orders Act preempted UIFSA. The issue before the court concerned when continuing, exclusive jurisdiction to modify a prior child support order may be lost by a state. The basis for the Supreme Court’s decision was an interpretation of the federal and state laws that eliminated conflict between them. The Court cited similar results in cases decided in Arizona, Oklahoma, Delaware and Kansas. The Court held that where no party or related child continues to reside in the issuing state, the issuing state may lose continuing, exclusive jurisdiction to modify a child support order despite the fact that one party refuses consent to transfer or release of jurisdiction to another state.

Child support | No future adjustment of agreed amount exceeding MCSF

The Michigan Court of Appeals ["COA"] affirmed the trial court's ruling refusing to lower payor Mark Foster's child support to an amount consistent with the Michigan Child Support Formula ["MCSF"] yesterday. In this case, at the time the judgment of divorce was entered, the parties placed on the record their agreement that the support would exceed the MCSF by $450/month a factor of their negotiated property settlement. The judgment also clearly stated their agreement.

Abatement of medicaid reimbursement if father marries mother

Whenever the prosecuting attorney files to establish support on behalf of a child born to an unmarried mother, and medicaid has paid the expenses of the birth and confinement, the court will order that those costs should be reimbursed. This law, MCL 722.712(5) was amended effective October 1, 2004. The amendment, in an effort to promote marriage, allows for those expenses to be abated (erased) if the parents marry.

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.

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.

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.

Child support | Opening a window of opportunity?

In an unpublished opinion, a panel of the Michigan Court of Appeals decided on November 25, 2008 that child support would be payable on behalf of a child who was over the age of 18 and residing with a parent, even though that child might not be able to graduate from high school by the age of 19 1/2. The ruling in this case, were the case published and controlling law, would have wide-reaching ramifications.

Child support liens | When can they NOT be imposed?

A Michigan statute allows the Friend of the Court to attach a lien to property the FOC locates that belongs to a person with child support arrearages. In Walters v Leech, Michigan's court of appeals held on July 21, 2008 that such a lien cannot be imposed against property held by the child support debtor and his or her spouse, where the property is held in a tenancy by the entireties.

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."

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.

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].
 

Revocation of Acknowledgment of Parentage | A roadmap

The Michigan Court of Appeals decided Johnson v Smith on November 20, 2007, giving us yet another lesson in how and when an acknowledgment of parentage may be revoked.

In Johnson, the parties were involved in an “on again, off again” relationship that began in the late 1980’s. They never married. A son was born on January 24, 1990 and was named Hollis DeAngelo Smith III. Defendant signed an acknowledgment of parentage on the day following the child’s birth. Orders regarding child support, custody and parenting time were subsequently entered.

The child lived with his mother for much of his life, but resided with the defendant for three years from 1995 through 1998. He also lived with the defendant from April 2001 through Christmas 2001. About then, the parties began to disagree about parenting time at Christmastime 2001. The mother then apparently told the defendant that he was not the child’s biological father. Thereafter, the mother and child disappeared for almost two years.

Toward the end of 2003, defendant filed a motion to revoke the acknowledgment of paternity. The child’s mother opposed the motion, as well as other motions filed by defendant relating to child support. During these proceedings, defendant took the child who was now 13. Rather than taking the child shopping, as had been intended, the defendant arranged for unauthorized DNA testing. The test results revealed that defendant isn’t the child’s biological father.

In possession of this new fact, the defendant re-filed his motion to revoke the acknowledgment and, concurrently, filed motions to vacate the existing child support orders.

The trial court denied defendant’s motion to revoke, holding that defendant had not shown, by clear and convincing evidence, that the “equities of the case” required setting aside the acknowledgment.

Child support and TANF payments

The New York Times today reported that up to 50% of the states collect child support from absent fathers and primarily use those collections to recoup the monies paid out to mothers and children through TANF grants (Temporary Assistance to Needy Families). According to the NY Times, nearly half of the states pass along none of the funds collected in child support to families on welfare.  Other states pay about $50/month to the custodial parent (usually a mother), despite the fact that the absent father may be paying hundreds of dollars per month.

Read Mothers Scrimp as States Take Child Support, New York Times, December 1, 2007. A one-time registration may be required.

New felony non-support case decided by Michigan COA

Felony nonsupport charges are increasing in Michigan as Attorney General Cox cracks down on deadbeat parents. (Note, I do not use the phrase deadbeat dads. Plenty of payee parents are dads, and the deadbeats are moms.)

The Michigan Court of Appeals decided People v Herrick, Docket No. 271882 (for publication) on November 27, 2007. In Herrick, the defendant was charged with felony nonsupport for failing to pay court-ordered child support for his two children between November 7, 2000, and November 7, 2005. Following the preliminary examination, the district court found that there was sufficient evidence to bind defendant over for trial.

Income-averaging to calculate child support

Interesting reading today in the slip opinions from the Court of Appeals (COA). In addition to some interesting support issues, the property issue was also an interesting read.

In Griffin v Griffin, Docket No. 271194, an Oakland County case, Husband appealed the property division, disputing the trial court's ("T/C'") award of a stock account and 60/40 distribution of a bank and annuity investment, while giving H 100% of his various businesses.

The COA noted that the T/C found H's business appraiser not credible. In addition, the T/C offered to split everything (including the businesses) 50/50, and H declined. Hmmm. What does that say about H's idea of the value of his businesses?

H also found fault with the calculation of child support, which he said was inflated.

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."

Nelly Bar the Door: Part II

On September 13, 2007, the Michigan COA reversed the trial court's decision that a former husband should be ordered to pay child support for a child who was born prior to the parties' marriage, a child that he had believed to be his biological child and whom he had held out to the child and the public as his own.

After the parties separated, a 2-year period elapsed during which Alex Brook did not see this child or the one born during the parties' marriage. When Pal Brook filed for divorce, Alex questioned the parentage of the older child.

Alex filed a motion for summary disposition under MCR 2.316(C)(10). The parties stipulated to these facts: (a) the child had been born prior to the marriage and there was no affidavit or Acknowledgment of Parentage filed; (b) DNA testing proved that Alex was not the child's father; and (c) Alex held himself out to the child and the public as the child's father.

The trial court, according to the applicable standard for summary disposition motions, accepted those stipulated facts as true and ruled as a matter of law that Alex was estopped to deny his parentage of the child. Alex was ordered to pay child support. Alex appealed of right.

The COA looked at several avenues of establishing parentage and held that they did not apply to this case. Then the court considered whether Atkinson v Atkinson could be applied to this case to establish equitable parentage. This equitable theory was rejected by the COA.

Similarly, the COA held that Alex was not equitably estopped from denying parentage. Since Alex believed that the child was his, he never had any reason to affirmatively represent that he would raise the child as his own. The COA held that the T/C erred in applying the doctrine of equitable estoppel and reversed.

As I've earlier said on the issue of parentage and disestablishment of parentage: "Nelly Bar the Door!"

You may read Brooks v Brooks here. Technorati tags: child support, paternity , disestablishment of parentage

Establishing child support if the other parent is a nonresident

Many children go without support when a biological parent leaves the State
without a support order having been established. The question is, then, can the
left-behind parent establish a child support order? How does a court assert
jurisdiction over a nonresident parent?

Michigan, fortunately, is among the vast majority of States that has
adopted the Uniform Interstate Family Support Act "UIFSA". As a result,
Michigan's courts may assert personal jurisdiction over the parent who abandoned
the children if any of the following are true:

Are you entitled to a full trial after a referee decision?

Litigants often ask what their rights are to a judicial review of a Friend of the Court referee's decision and order after a referee hearing.  In a recent case, the Court of Appeals approved the trial court's refusal to conduct a whole new trial.

The father appealed the trial court's denial of his motion to modify custody. He challenged the trial court's adoption of the Friend of the Court's recommendation and findings of fact  after his timely filed objections. He also challenged the trial court's refusal to conduct an evidentiary hearing.

The court of appeals addresses the application of MCR 2.315 and its impact on a litigant's right to a full evidentiary hearing. The COA also addresses MCL 552.507, particularly the 2004 amendment that allows the trial court to consider an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g) as long as the trial court also allows a party to present live evidence.

Litigants need to be aware that they will likely not get a full trial by the judge and that reasonable restrictions upon evidence may be imposed.

Decided on July 19, 2007, Dumm v Brodbeck, Docket No. 274600 is unpublished.
For more information concerning your rights in a custody trial, visit Jeanne Hannah's website www.traversecityfamilylaw.com
Technorati tags: child custody, child support, visitation, parenting time

Paternity law | Recent developments

Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 has compiled a useful digest of recent law review articles dealing with the topic of paternity:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

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

Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 has compiled a useful digest of recent law review articles dealing with the topic of paternity:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

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

Tax dependency deductions and IRS Form 8332

It is not unusual during the course of settlement negotiations for the custodial spouse to give one or more of the tax dependency deductions to the non-custodial spouse. This is particularly true if the custodial parent earns substantially less than the non-custodial parent. Usually there is some quid pro quo for the deduction. Sometimes the release of the tax dependency deduction is part of child support negotiation, and at other times, it's linked to property settlement issues.

However, IRS regulations require that in order for a taxpayer to be legally entitled to the dependency deduction, certain explicit statutory requirements must be met. A non-custodial parent, regardless of whether a divorce decree awards the deduction, is not entitled to the dependency deduction unless the custodial parent releases the deduction. This is done by completing a valid written declaration (IRS Form 8332 or its equivalent) to the Federal tax return for the year the deduction is claimed. The beauty of IRS Form 8332 is that a custodial parent may relinquish more than one year on that form. The original Form 8332 must be attached to the first year's tax return and a copy must be attached to each subsequently claimed year.

Woe be unto him, however, who loses his or her copy of the form!

One, two, three GO!

The Family Scholars Blog posted an Op-ed piece from the New York Times by Elizabeth Marquardt, published on July 17, 2007. The topic is "triple parenting." It seems that a court in Pennsylvania recently held that both lesbian mothers and also the sperm donor are the legal parents of two children and all are liable for support.

 

But the Court did not stop with the issue of support. It decided that each of the three parents was entitled to visitation. Most folks involved in family law matters understand that it's difficult for children to transition between two different homes. Imagine children having to transition between three homes! How often do we hear about the rights of children -- as opposed to parental rights which are claimed to be inviolate?

 

You can read Marquardt's New York Times editorial When Three Really is a Crowd on the Family Scholars Blog.

The case, Jacobs v Schultz-Jacobs, can be read here.

See also Stanley Kurtz's column Ma, Pa, and Ma in PA published in The Coner National Review Online.

Technorati tags: child support, child custody, visitation, parenting time, same-sex unions, same-sex relationships

Revocation of Acknowlegment of Paternity - what's a "mistake of fact?"

In People v Nugent, Docket No. 267069 For Publication, decided July 3, 2007, the Bay County prosecutor's office sought an order revoking an acknowledgment of parentage.

In this case, Nugent signed an acknowledgment of parentage claiming to be the biological father of a child born to Amy Dyjak despite the fact that he'd had a vasectomy a few years earlier. As they say, "truth will out." Eventually, it was established that Nugent's 14-year-old son was the biological father of the infant. Dyjak pled guilty to 2nd degree CSC. Her voluntary plea agreement required her to relinquish her parental rights to the child.

When Nugent refused to cooperate and revoke the acknowledgment of parentage, the PA--apparently on behalf of Alex--filed a petition to revoke the petition. Nugent contested the action because he wanted to remain the legal father of the child. Nugent's theory was that because he intended to be the child's father when he signed the acknowledgment and because he intended to remain the father after he learned that he was not biologically related, there was no mistake of fact that could be the grounds for revocation. The trial court denied the PA's petition and this appeal followed. There are two quite interesting things to learn from this case.

Order allowing duped dad reimbursement for $55,000 in child support reversed

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

Child support | financial reality sets in

An interesting case was decided by the Michigan Court of Appeals on March 20, 2007. The court of appeals affirmed the trial court's decision to base the child support award on the sole custody formula and to modify the custody award from joint custody to sole custody with the mother.

In this case, the parties agreed to joint custody with a week on / week off pattern of custody. But the evidence showed that the father exercised "substantially less" than  128 overnights -- the threshold that permits his support obligation to be calculated using the Shared economic responsibility formula. With this evidence, the court of appeals affirmed the trial court's rulings giving the mother sole physical custody and calculating child support according to the sole custody formula. Financial reality sets in, hmmm?

The case is Stephenson v Stephenson.

To visit Jeanne Hannah's website for more information, click here.
Technorati tags: Child support

Child Support | No modification absent change in circumstances

The Michigan Court of Appeals has clarified when a party may ask for modification of a child support order after entry of a divorce judgment.

In Mann v Pischke, Docket No. 265561 (Unpublished, decided March 6, 2007) In Mann, the trial court erred by applying the Shared Economic Responsibility Formula (“SERF“) to lower Defendant Father’s child support obligation for two children from $1196.26 per month to $725 per month.

In Mann, the parties had negotiated the child custody, child support and property, and entered into a consent judgment. This JOD awarded the mother sole legal custody and primary custody. The father was awarded 154 overnights which would have triggered SERF. However, in exchange for other concessions, the father/non-custodial parent agreed to pay child support according to the sole custody formula. He later sought to lower his support obligation and relied upon a Friend of the Court recommendation that the support be lowered.

The COA held that unless there are actual changes in circumstances—such as a modification of custody or parenting time after entry of the last custody order or reduced income—that a party is not entitled to a reduction in support and/or to application of SERF, stating that “the defendant had agreed to “a comprehensive settlement which involved extensive parenting time as well as what the child support obligation should be,” and should not after the fact be heard to argue for application of a different formula where there was no apparent change in the circumstances relevant when the parties agreed upon the initial judgment.

You may read Mann v Pischke here.

To visit Jeanne Hannah's website for more information, click here:

Technorati Tags: Child support

How to Get a Trial Court Decision that you Don't Like!

The Michigan court of appeals ruled in Birry v Birry, Docket No. 256627 (Aug 24, 2006) on a number of issues that are of interest to family practitioners:

1). Discharge in bankruptcy:  The trial court ruled that all amounts owed to Plaintiff Wife were non-dischargeable in bankruptcy. The trial court also held that all sums owed to the wife were in the nature of support.

The analysis of the COA was two-fold. It vacated the T/C's ruling that all amounts were non-dischargeable, stating that it was only within the authority of a bankruptcy court to make that determination in the event that a bankruptcy action was filed. On the other hand, the COA held that it was within the T/C's authority to decide that all sums owed with in the nature of support, citing Krist v Krist, 246 Mich App 59 (2001).

2). Imputation of income for child support purposes: The COA upheld the T/C's refusal to impute income to the wife and also upheld imputation of income to the husband, citing reliance upon not only his W-2s, but also his own representations on loan origination documents.

Child Support in Paternity Actions

In McLaren v Miller, Docket No. 260868 Decided on October 13, 2005, the Michigan Court of Appeals ruled that the amendment to Michigan’s Paternity Act, effective on October 1, 2004. operated prospectively only. Because the mother’s two complaints for paternity were filed prior to October 1, 2004, she was entitled to child support as prescribed under the former statute, retroactive to the date of birth of the children, not child support commencing only at the date of filing of the complaint.

The specific facts of this case are as follows:

What are the Rights of a Biological Father if the Mother is Married to Another Man?

This question is answered differently under Michigan law than it is under the laws of States that have enacted the Uniform Parentage Act (UPA, and States that have some judicially created exception like the ones in the UPA. In Michigan the Paternity Act and decisions of the court of Appeals and the Michigan Supreme Court deny standing to all biological fathers (not husbands) when a child is conceived or born during a marriage.

Consider the most recent Michigan case, decided February 16, 2005 (Numerick v Krull). The biological father's rights were effectively destroyed when Mom wed someone else after she and dad separated but before the child was born. If this is a sham marriage used to cut off Dad's rights, what happens when or if Mom divorces this husband? In this day and age people often move and lose touch. Bio Dad may never know if Mom moves to a state where she can divorce Dad and he can disestablish paternity. Bio Dad may never have the opportunity to parent or co-parent his child.

While it's true that these cases result from messy lives, are family lawyers supposed to turn away and ignore what might be in the best interests of a child to avoid getting our hands dirty? I don't think so.

What the UPA does with respect to children born or conceived during a marriage is really no different from the analysis we do under the Adoption Code where efforts are made to terminate a dad's parental rights so the child may be adopted. There we look at the relationship of the father to the child. Has the dad formed a substantial parent-child relationship with the child and has he provided regular and substantial support for the child?

The importance of allowing biological fathers to have standing arises from recent efforts in Michigan to enact legislation that would deal with the issue of "paternity fraud." The proposed legislation would allow a male to disestablish paternity and escape financial responsibility for a child or children born during his marriage to his wife. If we amend the Act in this piecemeal manner, then what happens to the child(ren)? They may be left without financial support and paternal guidance, often from the only father they have known.

If Husband has known that the child was not his for an extended period of time (the UPA sets a limit of 2 years) and he has not challenged it within the 2-year period, then he would not be allowed to deny paternity. It's one thing to deprive a putative father the right to establish his paternity and quite another to then turn around and deny the child the father he/she has been raised by.

Moreover, what is so different about a child having a relationship with her father AND her step-father - with alternate weekends and holidays and summer parenting, in a "normal" family (at least 50% of Michigan children live in such a family) - and a child having the same kind of relationship with a biological father?

Two cases that illustrate how the individual facts should determine whether a putative father should have standing were resolved in California and serve to illustrate what would happen under the UPA - what cannot happen under current Michigan law.

Can a Gay Co-parent be Ordered to Pay Child Support?

While we're on the topic of non-traditional families: I came across this reference yesterday. Isn't it about time that we welcomed a child's right to support and to continuing exercise of substantial parenting rights where they live in non-traditional families? In Indiana, second-parent adoptions are legal. There, the court of appeals ruled:

A lesbian who adopted her partner’s biological child must pay child support after the couple broke up because she is a legal parent despite the break up. Mariga v. Flint, No. 79C01-9612-AD-55 (Indiana Court of Appeals, February 16, 2005)