UPDATES IN MICHIGAN FAMILY LAW

Unaccompanied minor rules: Children traveling alone

Elizabeth Sadowski posted the following helpful information on the State Bar's listserv on Friday. Summer is coming and many children will be traveling from the home of the custodial parent to the non-custodial parent's home for parenting time.

Liz says that "Policies for unaccompanied children differ among airlines, so you need to check the website for that particular carrier. " She did, however, post the rules for US Air and for Northwest Airlines.

Parenting time | parent with same-sex partner

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

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

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?    

Parental Kidnapping | Prevention and Response

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

Lap babies | Safety for infants on airliners

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

New tool to help children cope with high-conflict divorce

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

Mandatory joint custody? Here we go again . . .

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

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

From Scott Bassett: Family Law Appellate Lawyer:

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

Home Alone: Part III

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

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

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

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

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

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

    You can read Dumm v Brodbeck here.

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

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

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

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

The father in Spires argued that even if the statute did not apply, the trial court was required by common law to consider the D’Onofrio factors [1] in all change-of-domicile matters, even those where one parent had sole legal custody. The COA rejected this argument, holding that the plain language of MCL 722.31(2) has altered this practice. Thus, the statute exclusively controls when and whether a court is required to use of the D’Onofrio factors in change-of-domicile cases. Since the statute expressly exempts cases where one parent has sole legal custody from the D’Onofrio factor consideration.
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[1]    The so-called D’Onofrio factors or test were adopted in Michigan case law in 1984 from the D’onofrio v D’Onofrio case that had earlier been decided in New Jersey. Under the D'Onofrio test, the trial court must consider: (1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the non-custodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the non-custodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the non-custodial parent if removal is allowed. Subsequently, the Michigan Legislature codified this test (made it law) and added one more factor: “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”

Summertime and the living is easy . . . or is it?

It's summertime. Many non-custodial parents are exercising large blocks of summer parenting time. It's easy to see, however, that there are some disgruntled and/or concerned parents out there who may be unhappy with the way the other parent is handling the children's summer care.

I wrote recently on this blog about the appropriate age when children can be left alone without a caregiver and about the appropriateness of assigning siblings to provide care for younger brothers or sisters.

In checking to see what brings people to my Blog, I note that in the past few days, parents from the following states have Googled to check on this issue, indicating a high level of concern about whether children are being neglected: I note visitors from TN, CA (many), IL, UT, NY, MI (many), NJ, TX, MS, KS, KY, PA, WA, ME, IA, GA, CO, MD, AND SC in the past several days.

It's time to check out the safety resources available to parents for babysitter training. You can read my earlier article here. Home Alone: Child care and babysitter issues

If your child lives in Michigan and you believe that a parent is leaving the child or children unsupervised, you'll want to review the Michigan Child Protection Act. Is the other parent's actions "neglect or abuse?" Does leaving a child alone, or leaving a sibling in charge of younger children, constitute "failure to protect?" For more information,  see my website.

Technorati tags: home alone, child care, babysitter, babysitting ,
childcare

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

Transportation issues: Children flying alone

Many children travel in the summertime from a custodial parent's home for parenting time with a non-custodial parent. The summer of 2007 has presented new challenges to these children and their parents as a result of a greater number of delays and flight cancellations. It is recommended that parents meet these challenges in two ways. First, your "precious cargo" should travel as "unaccompanied minors." Airlines have special procedures for handling minors, but it costs a fee -- usually about $60 each way. Airlines typically will not transport children under the age of 5 as unaccompanied minors.

Another policy will help ensure that children are not stranded away from parents. Children should either be scheduled on a direct flight to their destination or they should be scheduled early in the day so that delays don't cause the children to be alone in a strange city.

As the Washington Post reports on July 21, 2007, these policies do not always ensure that a child's trip is without mishap. See The Young and the Stranded
A one-time registration may be necessary.
Technorati tags: parenting time, visitation, unaccompanied minor, airlines

Good cause to modify prior custody order found where offending conduct continued

In Roodvoets v Royce, Docket No. 276451, decided June 26, 2007 (unpublished), the COA clarified when a party may get an evidentiary hearing on a motion to modify a custody / parenting time order. This was a monster case, involving custody of a child born in 1997. This was the third trip to the COA for the parties. On the second appeal, the COA in March 2004 affirmed the trial court’s modification of custody, which changed sole physical custody from the plaintiff mother to the defendant father.

Now before the COA for the third time, plaintiff mother challenged the trial court’s decision to grant an evidentiary hearing on father’s motion to put further conditions on the mother’s parenting time, claiming that the petition should have been denied for lack of change in circumstances or good cause. The panel noted that:

In August 2002, during the hearing on defendant’s motion for sole physical custody of Emma, the trial court stated:

This is a really extraordinary case. It would a - - it is very unusual to change custody from one parent to another when, at least, on the surface the parent that has custody is doing a good job with external things and has an established custodial environment with that parent. But this is a case where there are psychological issues that are deeply troubling and they will, over time, create a situation where there is no relationship between the child and the father unless the Court does something about it now.

Virtual Visitation: A Threat or a Way to Preserve a Parent-Child Relationship Despite Distance?

Recently, while on a long flight to Hawaii, I sat opposite the galley and had the chance to have a long conversation with one of the flight attendants about how he stays in touch with his young children Aiden and Evan, morning and night when he's away from home 10 days a month. I was impressed with how easy it sounds. Virtual visitation has been in the news lately, and with more and more homes having high-speed Internet access, the concept is far more viable.

The first time I contemplated the concept of virtual parenting time was in 1994. At that time, I had a client who lived in the San Francisco Bay area whose child lived with the custodial parent in Northern Michigan. The concept was very, very new at that time. I'd like to be able to report that this idea worked. Certainly, we had a court system willing to consider it. What we did not have was a cooperative custodial parent. The potential for setting up and keeping a computer and camera in working order seemed daunting, if not impossible. My client decided not to fight because any and all of his parenting time occurred with stiff opposition from the mother, cost a lot of money and anguish for my client, and also caused the child anxiety that was transferred as a result of the parents' conflict.            

In today's extraordinarily mobile society, however, I believe that virtual visitation is not only necessary in order to preserve a good parent-child relationship, but is a way for noncustodial parents to remain intimately connected to their children.

This is not to say that this isn't a two-edged sword. A parent who wants to relocate may offer virtual visitation as a means of replacing the regular parenting time of the noncustodial parent. This represents a threat to a parent faced with a relocation motion. On the other hand, a parent who has lost a relocation motion or who has had, for economic reasons, to relocate himself or herself far from the children can use virtual visitation to remain in close touch with his or her children.

Upon arriving home, I Googled "virtual visitation" and found some recent news articles describing parents' experiences. I also asked Guy to share his experiences and to show us some examples of how virtual visitation might work.

The Michigan Legislature is considering a bill for virtual visitation:  See HB4174

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

Technorati tags: Virtual visitation, Visitation, Parenting Time
Child Custody

Tug of War Over Children

Justice Talking is an excellent program on National Public Radio. If you've missed the program, however, you can listen to it at their website www.justicetalking.org

On my way somewhere else today, I happened to find a program titled The Tug of War Over Children. It aired in January 2006, but you may listed to it on your computer at this link.

The focus of the program is stated in this Overview:

With over 40% of marriages ending in divorce, the battle for child custody and support are among the most common and contentious disputes heard by our nation's courts. What do judges look at when making custody and child support decisions? Do moms get an unfair advantage?

What happens when one parent snatches the kids and hides them from the other parent? Should teenagers get a say in where they live? Join us on this edition of Justice Talking as we take a deeper look at family law and ask what happens to the kids when parents break up?

The presenters are: Professor David Mayer and Joan Meier. Prof. Mayer is a professor at the University of Illinois College of Law and a leading scholar at the intersection of constitutional law and family law. He is a member of the American Law Institute. Joan Meier is Professor of Clinical Law at the George Washington University Law School.

Shared custody advocate Dr. Ned Holstein and Joan Meier, a law professor, debate the social implications of battles between moms and dads over custody.

Ned Holstein is a divorced father of two adult children and is the custodial parent of his third child, a senior in college. Ned graduated from Harvard College, then obtained a Masters degree from M.I.T. before attending Mount Sinai School of Medicine. He is the founder and president of Fathers and Families.

Joan Meier is Professor of Clinical Law at the George Washington University Law School. In 2003, she founded the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), a nonprofit organization dedicated to providing appellate and amicus representation in cases of legal importance. Her research and publications focus on domestic violence, criminal procedure, civil rights, and child custody.

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

Alert: Avoiding Violation of a Personal Protection Order – What Constitutes a Violation?

Sometimes a PPO may prohibit a person from contacting his or her former spouse, girl or boy friend, or cohabitant in person or by telephone, and may limit any contact to emails or writings. If the parties have children in common, such a PPO might permit specific telephone contact with the children and/or might permit certain kinds of exchanges of the children for parenting times.

The Michigan Court of Appeals just decided two cases – actually two separate incidents between the same parties that were brought to the court in two separate appeals – that should help parents in these situations avoid criminal prosecution for violations.

The issues before the Court were: does leaving a message on an answering machine violate the PPO and does driving by the ex-wife’s house violate the PPO?

There is a great danger of prosecution for criminal contempt if a party violates a PPO. A father or mother separated from the children will certainly wish contact with the children. It is very important to understand how a parent can get contact with the children safely without subjecting himself/herself to criminal prosecution, fines, and jail time.

Reviewing these two recent cases will help you to understand how important it is to consider carefully and to comply with the exact wording in the PPO to avoid a violation and criminal contempt prosecution.