All Rights to Lyrics and Video Owned by Estate of Frank Sinatra
All Rights to Lyrics and Video Owned by Estate of Frank Sinatra
A colleague asks how to resolve the issue of child care costs and child support modification when the custodial parent cannot find/afford reliable day care and has, in the past, lost her job because of inability to conform her schedule to the employer schedule. This Mom finally, in order to work, has been paying her teenage children $50 per week to watch their little sister (the child of the payer of support, not of school age). Thus, Mom was able to find a job last August. Fifty dollars per week is far less than the cost of available child care costs during the 35-40 hours per week while mom works in the restaurant field. Mom cannot afford to pay a licensed day care and the father has not been paying reasonable child support that includes child care. The Referee questions whether the child care costs are actually being paid to the teenager, and questions whether she can include this in the computation. The children are in the care of the father half the time.
Common questions are: How old must a child be to be left home alone . . .or to be left alone in the care of a sibling? A couple of other questions and concerns arise:
1) Is the childcare cost really being paid?
Can you imagine a legal mother deciding upon divorce that she could disavow her parentage—that she could / would say that the gestational surrogacy contract made between a wife, her husband and a gestational carrier was invalid and unenforceable? What is this really about?
Well, most of the time it’s about the money . . . and where a child is involved—perhaps actress and television personality Sherri Shepherd just never wanted a child in the first place or failed to bond with the child.
Nevertheless, the Pennsylvania Supreme Court has denied Shepherd’s appeal, ruling that the surrogacy agreement is enforceable. As a result, Shepherd is now required to pay more than $4,000 a month in child support.
See Justices Deny Actress Appeal on Surrogacy Contract, by Lizzy McLellan on The Legal Intelligencer website.
Adler v Dormio, Docket No 319608, decided March 19, 2015 For Publication is quite an interesting decision. The Court of Appeal held that, under the Revocation of Parentage Act, MCL 722.1431 et seq., ["RPA"] the affiliated father of a child born in 2005 has a right to a hearing in the trial court on remand to determine whether he is entitled to have child support arrearages cancelled upon the finding that he was not the biological father.
Dormio sought relief under MCR 2.612(C)(1)(f). He requested cancellation of any support not owed to the State of Michigan. [The arrearages exceeded $45,000, and only $300 was owed to the state.]
RPA, among other things, permits an man found by a court to have fathered a child out of wedlock “whose paternity was determined based on the affiliated father’s failure to participate in the court proceedings” to “file a motion with the court that made the determination to set aside the determination.” MCL 722.1439(1), 1443(2)(b). The time limit within which to file a motion is within 3 years after the child's birth or within 1 year after the date of the order of establishing parentage. The father here filed within 1 year of the enactment of RPA (June 12, 2012), a "savings clause" that has now lapsed.
Interestingly, the COA here said: "Typically, a motion under MCL 722.1439 must be filed within 3 years after the child’s birth or one year of the order of filiation, whichever is later. MCL 722.1439(2). [Emphasis added] [Do you begin to get the feeling that there is another means of seeking relief?]
As Professor Shaun Martin of the University of San Diego School of Law says on his Blog, California Appellate Report:
"It's tough to figure out who to root for here.
"In the red corner, we have Maryanne Sorge. In the blue corner, we have Joseph Sorge. Maryanne and Joseph were married, but are now divorced."
After their divorce, Maryanne, the ex-wife of Joseph, who is a wealthy businessman, sought a modification of a child support order after she learned he'd sold his business for $100 million. Joseph challenged the modification on the grounds that he had invested millions in a start-up company and had significant losses. He wanted the trial court to base his support on the income he actually had, not imputed income. The court determined that it could use the high earning capacity Joseph could have had rather than his actual income in calculating child support. Sorge also appealed the award of sanctions and also of attorney fees.
It seems that Joseph was pretty steamed after a trial court judge ordered him to pay his ex-wife's attorney fees in a post-judgment child support modification. Sorge was ordered to pay $200,000 in legal fees for his ex-wife's attorney during and after a bitter child support modification motion. Subsequently, he was ordered to pay about $60,000 for her appellate attorney fees. Plus sanctions . . .
The Likine case concerned a criminal statute, MCL 750.165, that makes non-compliance with court-ordered child support a felony. The penalty for felony non-support in Michigan is incarceratation for up to four years and a fine of up to $2,000. If someone is arrested for non-support, he or she remains behind bars until trial unless he or she posts a cash bond of $500.00 or 25% of the arrearage, whichever is larger. That could mean being in jail until trial—and all that time, the arrearage continues to grow. It’s difficult to understand how what is essentially “debtor’s prison” works for children who need support.
It has not been unusual for gay and lesbian couples to arrange privately for surrogacy or for a donation of sperm from a friend or third party in order for a couple to inseminate one of the lesbian partners so that they can bring children into their family. A recent case involving the latter method of procreation may result in lesbian partners being forced to use clinics approved for A.R.T. rather than an informal gift from a friend or acquaintance.A Kansas man, William Marotta, donated sperm to a lesbian couple after answering a Craigslist ad placed online by Angela Bauer and Jennifer Schreiner. Bauer and Schreiner were seeking a sperm donor. After exchanging emails and meeting, the three signed an agreement relieving Marotta of any financial or paternal responsibility. The couple accomplished the artificial insemination themselves using a syringe, and Schreiner eventually became pregnant. Late last year, after she and Bauer broke up, because Kansas does not recognise same-sex marriage, Schreiner, who bore the child, was awarded sole custody, Bauer was not liable for child support, and Schreiner applied for Title IV-D benefits. So the state came after Marotta for child support.
This is the key issue: Absent an express agreement of the parties, the dependency exemptions and the accompanying earned income credit and child care credit for minor children of divorced and separated families, belong to the custodial parent, not the non-custodial parent.
Prior to January 1, 1985, the Internal Revenue Code (IRC), as regards a divorced and/or separated parent who provided more than one-half of the child's total support during the year, the "custodial parent" had the right to claim the dependent child tax exemption. At that time, there were two exceptions under the tax code at that time that, if applicable, would permit the noncustodial parent to claim the exemption. Specifically, 26 USC § 152(e)(2) allowed the noncustodial parent to claim the exemption if:
Major revisions and amendments to the federal income tax code were enacted by Congress in the 1984 Tax Reform Act, (the "Deficit Reduction Act of 1984") (Pub L 98-369, 98 Stat 494). Relevant to this discussion, there was a significant change in the wording of 26 USC § 152(e)(2), applicable for tax years commencing after December 31, 1984. As revised, the text of 26 USC § 152(e) deleted and repealed the prior language that had expressly allowed a noncustodial parent to claim the dependency exemption “if the decree of divorce or of separate maintenance * * * [so] provides.”
As a result of the 1984 tax code revision, the previously-existing exception that effectively allowed a state court judge through a divorce decree to award to a noncustodial parent the right to claim the dependent child tax exemption --- despite objection by the custodial parent and without the custodial parent's voluntary consent --- was simply written-out of the federal income tax code for tax years commencing after 1984. Consequently, since 1985, there is only one statutory exception to the custodial parent's right to claim the exemption, that exception being the custodial parent's voluntary written agreement to not claim the exemption and to release it to the noncustodial parent. [Emphasis added.]
The new Michigan Child Support Formula 2013 takes effect on 1/1/2013. All orders entered after that period will use the MCSF 2013 and the new Uniform Support Order also becomes effective 1/1/2013. William J. Bartels, Senior Management Analyst for the MI Supreme Court - State Court Administrative Office has highlighted for practitioners the following important things that you should know when calculating child support and using the new forms:
* The new USO forms (rev 3/12) have two significant changes. 1) Rather than just reporting the average for all children spend with each parent, the overnights the payer spends with each child are recorded following the child's name and DOB. 2) The provision for prior orders is changing. If a support provision is not written in a USO entered after 1/1, unchanged provisions from earlier orders no longer continue. (The 2013 MCSF Changes webcast mentioned below includes information about the USO changes.)
Yesterday's post about a Wisconsin court's decision to prohibit a man from procreating as a condition of probation in a felony non-support case and a comment from Carrie E. Huff, of Mallory, Cunningham, Lapka, Scott & Selin, PLLC in Lansing, Michigan, that the probation requirement of not procreating sounded unconstitutional to her inspires this post. The answer is: In Michigan, such a prohibition is unconstitutional. In Wisconsin (and who knows where else), it is not. The issues of course are fundamental rights of privacy, due process, and equal protection of law.
A 1925 Michigan Supreme Court case upheld a Michigan statute that provided that, so long as procedural steps were followed, a Court could issue an order for sterilization of "mentally defective" persons. Smith v. Command, 231 Mich. 409, 204 N.W. 140 (1925) Download Smith_v_Command,_Probate_Judge
It amazes me that it took seventy--70--years for the Michigan Court of Appeals ("COA"), on remand from the supreme court in lieu of granting leave, to reject the holding in Smith. The supreme court remanded to the COA for reconsideration as on leave granted "to reconsider, without limitation, whether probate judges possess the power to authorize a guardian to consent to the sterilization of a developmentally disabled citizen." In re Wirsing (On remand), 214 Mich.App. 131 (1995)
A Wisconsin man who owes $50,000 in child support and $40,000 in interest was sentenced on Monday to three years of probation with an added condition: he may not procreate. Corey Curtis, age 44, of Racine, Wisconsin, has fathered nine children with six women. He was sentenced on Monday after pleading no contest in October to jumping bail and failing to pay child support.
According to news reports, Judge Tim Boyle of Racine County began the hearing by expressing his regret that he didn’t have the authority to order sterilization. When the prosecutor, citing a 2001 ruling by the Wisconsin Supreme Court, told Boyle that he did have the authority to restrict Curtis from having additional children unless he could show ability to pay as a condition of probation, Judge Boyle added the condition.
An Indiana appellate court held in Ashabranner v. Wilkins, Docket No. 22A01-1109-DR-411
(Indiana Court of Appeals, June 15, 2012) [For Publication] that the trial court could not consider an18-year-old daughter's income and ability to provide for herself when determining amount of child support which father was required to continue to pay. A child who is not yet emancipated is not responsible for providing for him or herself, and his or her income should not be considered by a court determining the amount of child support owed.
Download Ashabranner_v_Wilkins may be read here.
In an unpublished decision released by the court of appeals on July 17, 2012, that court held that the trial court must find that a parent is actually capable of working before the court may impute income to the parent for the purposes of calculating and assessing child support.
The mother suffered from mental illness as established by testimony of a psychologist at a hearing. She had not worked in 1995 and was not working. She was capable of teaching piano lessons, but had been deemed to be a threat to her own children. She does not receive SSI. She is totally dependent upon her parents for support.Nevertheless, the trial court imputed income to her of $12,500.
The court of appeals reversed and remanded, holding that before a court may impute income to a parent, the court must first find that the parent is capable of working.
Download Henry_v_Francis here.
The Michigan Court of Appeals decided Clarke v Clarke, 297 Mich App 172 (2012) on June 26, 2012. In this decision, despite the fact that the tax exemption had been agreed to be alternated between the parties in odd and even numbered years, the court of appeals makes clear that the tax exemption is related to the child support and can be modified by the trial court.
IRS Publication 501 (a downloadable PDF file) makes clear that to be entitled to the tax exemption according to the federal tax code, a parent must have custody of the child for more than one half of the year, and it was this requirement that was the rationale for the Clarke panel’s decision. For the rules regarding the exemption, see IRS Publ. 501 at Table 5. "Overview of the Rules for Claiming an Exemption for a Dependent." [Page 12]
Although we rarely see family law related questions decided by the U.S. Supreme Court, a decision on whether a person facing incarceration for non-support during a civil contempt hearing is entitled to appointed counsel was decided by the Court in June 2011.
In that case, Turner v. Rogers, a South Carolina family court ordered petitioner Turner to pay $51.73 per week to respondent Rogers to help support their child.Turner repeatedly failed to pay the amount due and was held in contempt five times. For the first four, he was sentenced to 90 days’ imprisonment, but he ultimately paid what he owed (twice without being jailed, twice after spending a few days in custody).
The emotional abuse by a narcissist is pervasive and insidious. It impacts not only the narcissist’s spouse but his or her children as well. Once divorce proceedings begin, the narcissist’s abuse will likely escalate. Narcissists will use any means possible to gain control of the situation or to make themselves look better. Children become perfect pawns for narcissistic parents to use against their spouses. Identifying how narcissistic parents abuse their children is the first step to devising strategies to minimize abuse and help children cope. Read more here on Parenting News Network.com
Judge Hoort, of the 8th Judicial Circuit Court pointed out today that he thought in Michigan folks who are faced with civil contempt for non-support are entitled to court-appointed attorneys. Since I love a challenge, I went to my favorite Internet law library (TheLaw.net) and quickly found the Michigan case law supporting his point.
In Mead v Batchelor, 435 Mich. 480 (1990), Michigan's supreme court reversed Sword v. Sword, 399 Mich. 367 (1976), holding that “[i]n light of more recent developments in due process jurisprudence and changes in Michigan statutes governing child support enforcement, we now are persuaded that our holding in Sword must be modified to recognize that the Due Process Clause of the Fourteenth Amendment of the United States Constitution precludes incarceration of an indigent defendant if he has been denied counsel in a contempt proceeding for failure to pay child support.”
A sharply divided U.S. Supreme Court held that a South Carolina court violated father's constitutional due process rights where he was not given a lawyer or other help before he was jailed for failing to pay child support. In a 5-4 decision, the high court did not go so far as to say that states are required by the Due Process Clause of the Constitution to provide lawyers for poor people in civil cases where a person faces jail time.
Michael Turner, a South Carolina resident, was sentenced to serve up to 12 months in jail for felony non-support, even though he insisted he could not afford his child support payments. Turner had no lawyer. He claimed, and had plenty of support from activists, that all people facing a jail sentence have a constitutional right to an attorney. The Supreme Court held only that a trial court must use "alternative procedures" to ensure "fundamentally fair" hearings.
The Michigan Supreme Court affirmed the court of appeals decision in In Re Beck on December 22, 2010, rejecting a father's argument that his obligation to pay child support ended as a matter of law when his parental rights were terminated and that his constitutional right to due process of law was violated by an order that continued his child support obligation.
The Michigan appeals court says a man who mistakenly believed he was the father of his girlfriend's son cannot be pursued for child support. The ruling in April 2010 overturns a decision by an Iosco County Family Court Judge who had agreed with the prosecutor's office and ordered child support in 2009. The facts of this case were distinguished from a published Ohio case. The importance of this case from my point of view is that the conclusions of law can be applied to similar cases in which a father was held liable for child support as the "presumptive father" simply because he was married to the mother when the child was born or conceived.
When setting out a parenting time plan, the number of overnights needs to be considered because of the impact on child support, if minimizing child support is important to one parent, or maximizing child support is important. Moreover, setting out a specific parenting time schedule has the advantage of giving the non-custodial parent a parenting time plan that the court can enforce. There's nothing I hate to see more than that the NCP will have "parenting time as the parties may arrange and agree." It's certain to create arguments.
In a case for publication, In Re Beck, decided March 4, 2010, the Michigan court of appeals held that the termination of parental rights arising out of a neglect or abuse case does not end a parent's obligation to pay child support.
The father whose parental rights were terminated argued that the trial court violated his due process rights by providing in the termination order that his “[c]hild support and other support for the children shall continue.” He did not appeal the termination order itself.
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.
NOTE: Since this blog post was published there have been sweeping changes to Michigan's Parentage laws. Click here to read Blog Post Sweeping New Changes to Parentage Laws in Michigan. If you have a paternity issue involving a child born or conveived while the mother was married to another man and the mother and child live in Michigan, call Jeanne Hannah's office at 231-275-5600 to schedule a telephone conference to discuss how the new law may impact your particular parentage rights.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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?
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.
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.
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 Mich 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].
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.
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.
Do you need help with a divorce or custody case? Find a Michigan Family Lawyer near you.
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.
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.
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."
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.
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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:
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.
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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.
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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!