UPDATES IN MICHIGAN FAMILY LAW

The Mother Who Cried Wolf | Unsubstantiated Allegations of Abuse

The Michigan Court of Appeals ordered a mother to pay over $25,000 in attorney fees and costs in a contentious post-judgment child custody and parenting time case. Parents who think they can just willy-nilly waltz into court and/or who use and abuse child protective laws in an attempt to restrict access to children should think again. I've seen lots of abusive litigation before, but this one is really quite amazing.

The case involved Sean O’Farrell [“Father”] and Kelly O’Farrell [“Mother”]. They were divorced in December 2008. The judgment of divorce provided that Father and Mother would have joint legal custody of their minor child, who was two years old at the time. The judgment of divorce granted Mother physical custody of the child until further order of the court and ordered an extensive, detailed parenting-time schedule. The fact that the PT schedule was extensive and detailed indicates that Father’s lawyer perceived the need for this—that there was already contention. No doubt! Mother filed a motion in later March 2009—about four (4) months after the ink was dry on the judgment of divorce. She sought to suspend or to restrict Father’s parenting time.

Father responded to the motion and also filed a motion for a change of custody. There were thirteen hearings over a period of nearly two years. At the conclusion of the final hearing, the Court declined to restrict the father’s parenting time and, in fact, increased it.

In addition, the judge indicated that he was very close to finding the proofs sufficient to grant Father’s petition for a change in custody. The trial court ordered that Mother pay Father’s attorney $20,912 in fees and $3,555.86 in costs and reimburse Father’s $738 cost to the Guardian Ad Litem (GAL). The Court of Appeals affirmed.

Courts Should Not be Required to Micromanage Custody Issues

An unpublished decision released by the Michigan Court of Appeals on July 3, 2012 reveals how some parents expect family courts to micromanage their custody and parenting time issues. This case has parallels with other cases I've had in my office and clearly illustrates the type of extensive and painful post-judgment actions parents may take--legal actions that have the potential to alienate or otherwise harm the children. Why should parents expect the courts to micromanage their post-judgment legal issues in regard to parenting time and custody in the absence of Vodvarka standards? In the end, Dad was award expanded parenting time. One can only conclude it was because of Mom's contrary behavior.

Contempt proceedings? Oh yes. BF was, per an agreed order, to move from the mother's residence. Now how effective was that when his move was to a camper in the back yard and he was still present in the home at breakfast and while and after the children went to bed? [Been there, seen that . . . a 100-foot electrical cord from the mother's house to a camper in the driveway . . . when that man had a no-contact order so that he was prevented from being in the presence of the children.]

Read it here: Klaas v Klass

Established Custodial Environment with Both Parents | A Factual Inquiry

In Landon v Sheldon, decided by the Court of Appeals on December 21, 2010, the trial court found that an established custodial environment existed solely with defendant mother. This seriously impacted the father's burden of proof and resulted in a custody award to the mother. This was a paternity case. Although the mother convinced the trial court that the ECE existed with her alone, the COA disagreed and reversed the trial court’s award of sole custody to Mom. This case is a good example of why lawyers should caution clients to testify with complete candor rather than trying to construe facts in their own favor. A half-truth is still only half true. It is also half false.

Realistic expectations about custody modification

Winters v James, decided on August 31, 2010, is a good case study for lawyers to use in helping certain parents to form a realistic idea of what their chances of success may be in a motion to modify custody. This case has a little of everything that we’re getting used to seeing in this economy—relocation, return, live-in companions, multiple moves, on-again / off-again verbal custody agreements.

In Winters v James, the parties were divorced in 1999. Initially, Mom was awarded full physical custody and the parents shared joint legal custody. In 2008, Mom wanted to move to Colorado for an employment opportunity. She initially believed that Dad had agreed to let her take the children with her to Colorado. However, not long thereafter, Dad changed his mind about letting Mom take the children with her.

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.

Spousal support | When? How much? How long? Conditions?

An article published in The Wall Street Journal on October 31, 2009 garnered over 170 online emotionally charged comments over the weekend.  The tenor of the article is set at the beginning: "Long viewed as payment for life, divorce settlements are facing strict new limits as some ex-spouses—primarily men—protest the endless support of a former partner. For richer, for poorer, forever?"

Bottom line: Alimony (spousal support) is not available to many women. Those who were married fewer than 7 to 10 years should expect no alimony award. Rehabilitative alimony is normally awarded to former wives who have children to raise and who have stayed out of the job market for many years. This disqualifies women in short-term marriages from an alimony award.

But what about women married for 15 to 20 years or longer?

Child's entry into school held "proper cause" to revisit custody issue

In Hoeve v Hoeve, an unpublished opinion issued by the Court of Appeals on 
October 15th, a panel of Michigan's Court of Appeals ruled that a child's impending enrollment in school constituted proper cause to revisit the trial court's earlier custody order because the child needs to be enrolled in one school district, the parents live 45 minutes apart, and the child's beginning school attendance is an event that “could have a significant effect on the child’s life.”

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.

Be careful what you wish for: Parenting time pitfalls to avoid

In Brausch v Brausch, 283 Mich App 339; ___ NW2d ___ (2009), decided by the Michigan court of appeals on April 14, 2009, the Court of Appeals reaffirmed that child custody provisions in a judgment of divorce cannot be and will not be governed by contract privileges.

In this case, the parties entered into a judgment of divorce that (1) granted Plaintiff Mother sole legal and sole physical custody, (2) granted the father “reasonable parenting time as agreed to by the parties,” (3) did not restrict Plaintiff Mother from moving more than 100 miles from Defendant Father, and (4) allowed interstates moves without permission from the trial court. Now there’s a recipe for disaster!

Here is the specific wording from the Brausch judgment of divorce. Following that are some specific guidelines for parents who should try to avoid the problems caused by the wording.

How can a parent modify a prior custody order?

Non-custodial parents want to know what the courts will consider as sufficient evidence to warrant modifying an existing custody order. It’s well-established that the court will not re-visit a previous custody determination unless the party requesting the custody modification can prove that there has been a change in circumstances or good cause arising since the most recent custody order.

Parents ask: What does that mean? It’s become well-established that it means this:

Cohabitation - Finally, a test for trial courts to apply

On March 18, 2008, In Smith v Smith, decided (For Publication), the Michigan court of appeals adopted the test from an Ohio decision to determine what constitutes “cohabitation.” In Smith, the parties' consent judgment of divorce mandated termination of spousal support upon “cohabitation.” Mr. Smith filed a motion to terminate alimony, claiming that his ex-wife was cohabiting with another man. The trial court denied his motion, after carefully analyzing whether the ex-wife's conduct as described constituted "cohabitation." Mr. Smith appealed.

Can a custody issue be "transferred?"

I am often asked whether a child custody matter can be "transferred" to another State after a parent moves from the State where the custody determination was entered. The answer to whether a court in another State can exercise jurisdiction is this: "It depends." All child custody matters are fact-driven.

Getting a Fair Settlement: Discovering Hidden Assets

It's become more common these days for couples to seek a low-cost divorce, often with only one party being represented and the other party sometimes retaining a lawyer to look over the final paperwork. In cases such as these, lawyers are often given a list of marital assets and marital debts and asked to help a party devise a reasonable settlement offer that can be presented to the other spouse.

In other cases, where the financial asset/debt picture is more complicated, some discovery is usually warranted, and the attorney for the spouse who doesn't handle the finances may -- or may not -- send out what is called in my office "the burdensome and oppressive discovery requests." This is usually a "canned" set of interrogatories and requests to produce documents. It consists of about 20 pages containing than 100 requests, some of them with 5 to 12 subparts. Sometimes a lawyer will tailor the requests to the specific case, deleting ones that do not apply (not often enough, in my experience) or adding specific interrogatories that inquire into certain more unusal assets owned by the parties. Responding to these requests can take my client 40 hours or more. I resist the temptation to engage in the "what comes around, goes around" approach. If I believe that the other spouse really doesn't have a clue about the finances and hasn't hidden any monies -- this latter being based upon my client's statement that the other spouse (usually the wife) doesn't have access to the assets, then I do not send out discovery requests to that party. Instead, I advise my client to work hard to produce complete and accurate records.

In other cases, I represent the "clueless spouse" -- the one who's been kept in the dark. Then I recommend to my client that this thorough discovery or some modification of it be made. Usually the spouse agrees. Sometimes she doesn't authorize discovery because she wants to save money.

Now suppose that you are the client who wants to save money on legal fees and expenses. What is most appropriate for you? What will protect you?

"Fault" after the fact doesn't negate an alimony award

This is a pretty strange case . . . reminds me a little of the "War of the Roses."  The Missouri Supreme Court ruled recently that even though a woman tried to have her ex-husband  rubbed out, he still must continue to pay alimony to her.

These are the facts:

• In the course of divorce proceedings, the spouses entered into a non-modifiable agreement. Husband agreed to pay monthly spousal support to Wife.
• The divorce was finalized.
• The the ex-wife attempted to hire a hitman to kill her ex-husband.
• The ex-husband discovered and thwarted the planned "hit."
• The ex-husband asked the court to terminate his alimony obligation.
• The Missouri Supreme Court ruled that the ex-husband had agreed that the spousal support would not be changed "regardless of the relative circumstances of the parties." As a result, the ex-husband remains liable for the spousal support despite the fact that if the ex-wife's plan to have him killed had succeeded, his death would have terminated his spousal support obligation.

See  Richardson v Richardson, 218 S.W.3d 426 (Mo. 2007).

Modifying a child custody order | Past history can hurt you

An unpublished opinion released on June 29 by the Court of Appeals ["COA"] highlights a contentious post-judgment motion to modify custody. Both parties sought to modify the joint custody award in their judgment, and each sought sole physical custody. The father alleged that his ex-wife’s hostile, uncooperative, and accusatory conduct was harmful to the children and made joint custody unworkable. The mother alleged that the father’s conduct toward her and the children amounted to domestic violence.

The Family Court Referee held a 13-day hearing. At the conclusion of the hearing, she awarded sole physical custody to Father. Mother asked for a de novo hearing. A one-day hearing was conducted by the Family Court Judge, who found adequate reason for a change in custody and awarded sole custody to Father. She refused his request to impute income to Mother. Both parties appealed and the COA affirmed.

On appeal, the mother argued that her alleged uncooperativeness and hostility toward the father were conditions that predated the original custody order, that the father could not now come before the court and use this as a reason to modify the parties’ agreed joint custody, and, therefore, that the Court could not use these to support a finding of changed circumstances warranting reconsideration of custody, citing Vodvarka v Grasmeyer, 259 Mich App 499 (2003).

[This is a new defense for me. “Once a bitch, always a bitch. I never changed.” Heh! I'll have to add it to my growing list of novel defenses. My all-time favorite is a mother's position, argued by her attorney as well, that she had a constitutional right-- a First Amendment right of association-- and the trial court had no authority to tell her that she could not continue her relationship with a boyfriend who had confessed to molesting his own daughter. Heh! You can guess how the trial court ruled on that one.] But I digress.

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.