UPDATES IN MICHIGAN FAMILY LAW

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].
 

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.

American attitudes about marriage, divorce, cohabitation, non-marital births, and same sex marriage

A new study of American attitudes about marriage, divorce, cohabitation, non-marital births, and same sex marriage was released on Sunday, July 1, 2007. The results of a national survey were published by the Pew Research Center.  A 91-page PDF copy of this study is available on the Internet.

Marriage. According to this survey, only 4 in 10 of those interviewed say that children are important to a successful marriage. As an illustration of how times have changed, in 1990, 65% of those interviewed felt this way.

The respondents were interviewed on their views of what makes a marriage work. 93% ranked faithfulness as important. [Well, I guess that eliminates a fair portion of Hollywood, if those tabloid headlines are right. No, no, I don't buy those things! But they scream at me when I stand in line at the grocery store!]

Only 12% said that agreement on politics was essential. Other ingredients to a successful marriage were adequate income, good housing, shared religious beliefs, and common tastes and interests. Not surprising, given an increase in the number of 2-income families in the U.S., satisfaction in marriage also depends upon how much a spouse shares in household chores.

Most respondents said that they want to marry. Married persons expressed greater satisfaction with their lives than those who are not married. [I suppose it  is handy not to wonder who's taking you to the ball.]

Other findings of the study mirror earlier research by Pamela Smock of the University of Michigan Institute of Social Research. There is wide divergence in attitudes regarding whether there is a stigma attached to non-marital births and shacking up.

"Family" as in "Non-traditional families" -- the "F-word?"

Did the panel of the Michigan Court of Appeals deciding National Pride at Work v Governor consider the economic ripple effect of their decision? As Laura Berman and Scott Bassett point out below, think “Brain Drain.” I agree with Scott, who said in a post yesterday on the State Bar of Michigan Family Law Listserv: “Lest anyone think this has no link to family law, keep in mind the role an economic downturn plays on family stress and marital breakdown.”

I believe that the issue of non-traditional families is one that impacts family law, family lawyers, and our court systems every day. Non-traditional families? Yes, you heard me—I used the "F word.” I’m talking about families. What makes them, what breaks them, and what determines where they will live and work. So I’m up here on my soapbox, and if you’re not interested, just hit the delete key.

Demographic studies by Pamela Smock of the Institute for Social Research at the University of Michigan clearly show that the days of the “traditional family,” [you know—like Ozzie, Harriet, David and Rickie] are gone. See: Smock, Pamela. Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy.

As Laura Berman of the Detroit News wrote today:

Michigan Court Rejects Domestic Partnership Benefits

On February 1, 2007, the Michigan Court of Appeals released its Opinion in National Pride at Work, Inc v Governor, Docket No. 265870. There were 63 parties in this case.

The issue in this case was whether public universities and governmental entities within the State of Michigan could extend benefits such as healthcare insurance to same-sex / domestic partners of their employees. Michigan’s Attorney General Michael Cox  appealed the Ingham county Circuit court’s decision that the marriage amendment, article 1, section 25 of the Michigan constitution, did not preclude public employers from extending same sex-domestic partnership benefits. The Court of Appeals reversed.

It was not hard to see where the court was going with its decision.  An extensive prefatory comment made the court’s position clear:

To Be Married Means to Be Outnumbered

According to an article published in today’s New York Times, It’s Official: To Be Married Means to Be Outnumbered. Sam Roberts. October 15. 2006, “Married couples, whose numbers have been declining for decades as a proportion of American households, have finally slipped into a minority, according to an analysis of new census figures by The New York Times.

The American Community Survey, released this month by the Census Bureau, found that 49.7 percent, or 55.2 million, of the nation’s 111.1 million households in 2005 were made up of married couples — with and without children — just shy of a majority and down from more than 52 percent five years earlier.”

Cohabitation issues have long been  of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Blow to same-sex marriage proponents

Same-sex marriage, which earlier this month suffered a huge setback in the State of New York, was handed another blow in Massachusetts yesterday when Massachusetts' Supreme Judicial Court validated a proposed constitutional amendment that seeks to outlaw gay weddings in a 2008 ballot measure.

Gay-marriage advocates contend that because same-sex marriage was made legal in 2003 by an SJC ruling, the proposed ballot question would run afoul of that prohibition. [See Goodridge et al v Dept of Public Health decided November 18, 2003]

The court's unanimous decision was a major victory yesterday for opponents of same-sex marriage.

To read more about the court's decision, see "Gay-marriage opponents get SJC go-ahead" by Scott Helman. The Boston Globe.

The court's decision, Johanna SCHULMAN vs. ATTORNEY GENERAL & another; Raymond Flynn & others, interveners. SJC-09684 July 10, 2006 may be read here.

Issues involving same-sex couples and cohabitation have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Cohabitation and Real Property Ownership: The Problems with Joint Ownership When the Relationship Fails

Imagine that your live-in relationship goes South and the love of your life leaves. Imagine that the two of you have acquired a house together, and titled it jointly “with full rights of survivorship.” Imagine fifteen or twenty years go by, and you’ve made all of the mortgage, tax, maintenance, insurance, and other payments necessary to acquire the house. The house in which you and your former lover had a small – say $20,000 – interest (one acquired with your money) is now free and clear of a mortgage. Property values have increased and the house is now worth $250,000. Is it yours? Can you leave it to your children? Can you sell it free and clear? The answer to all of those questions if the property is in Michigan is “No.”

In a case of first impression, the Michigan Court of Appeals decided Wengel v Wengel, Docket No. 263657 (February 28, 2006) [For Publication] The specific issue involved is whether the doctrine of adverse possession can be extended to apply to real estate owned as a joint tenant with full rights of survivorship.

I've prepared an extensive article on the topic of joint ownership of real property by cohabitants. To read a pdf copy of this entire article, click here.

Appeal of Cohabitation Decision

Today's Detroit Free Press related that Christian Muller is appealing to the MSC the recent ruling that he couldn't permit his live-in girlfriend to cohabit when his daughters were spending parenting time with him.

To contact Jeanne Hannah with your questions or to view her Family Law website, click here

What Special Real Estate / Property Issues Arise in Cohabitation Relationships?

The right to partition, to get a court order compelling the sale of real estate and distribution of the net sale proceeds, is a confusing subject often misunderstood by family lawyers. Cohabiting parties frequently purchase real estate together. How that real estate is titled will make a world of difference if those parties separate. It is not uncommon for one party to move out. What happens then? You’ve heard the phrase “possession is 9/10ths of the law.”

A problem arises when the real estate is titled to them as “joint tenants with full rights of survivorship” (or similar words indicating an intention that each shall have 'survivorship rights'). Then, the partner remaining in the house decides to play rough, he or she can make life difficult for the other party, by refusing to sell the real estate and distribute the monies.

As a practice pointer, avoid titling real estate as joint tenants with survivorship rights if the parties are not married. An alternative, if survivorship rights are wanted as part of “informal estate planning” by unmarried cohabitants, be sure the couple has a solid cohabitation agreement that binds each party contractually to their agreed-upon means of distribution in the event the relationship ends prior to death of one of the parties.

We’ve had earlier discussions on the State Bar of Michigan's Family Law ListServ about this problem. The controlling case is Albro v Allen, 434 Mich 271, 274-275 (1990). For a brief, clear explanation of why partition is not available, see Ostrander v Ostrander, decided on April 12, 2005.

The rights of cohabitants have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.