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.

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?    

The 100-mile rule | Effect of sole legal custody

I thought I would check on the status of Spires v Bergman, Court of Appeals Docket No. 276722. In this paternity case, the mother had sole legal and sole physical custody and was granted permission by the trial court to relocate to another State.

In Michigan, a court rule MCR 3.211(C)(1) requires that all custody and parenting time orders contain a provision preventing a change a child's residence from Michigan unless the parents agree or the Court approves the move.

The father claimed on appeal, among other things, that the trial court was obliged to apply the 100-mile rule and to deny the relocation motion. He also claimed that the trial court should have considered the D'onofrio factors before granting the order.

The trial court affirmed the trial court's decision that the 100-mile rule did not apply because the mother had sole legal custody. This is in accord with the statute, MCL 722.31.

An application for leave to appeal was filed on October 2, 2007. The Michigan Supreme Court denied leave on November 27, 2007. Docket No. 134977. 

You may read an earlier discussion of the Spires case here.

Family Abductions: Hague Convention cases

Sometimes a non-custodial parent abducts a child and takes the child to another country, refusing return to the custodial parent. Many countries are signatories to The Hague Convention, an international compact that helps custodial parents recover children who are abducted and held in foreign countries. A valuable resource, a practitioner's guide   to litigating Hague Convention cases,  has been created and is made available to the public and to practicing attorneys by the International Missing Children’s Division of the National Center for Missing & Exploited Children. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts.

The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child. Other valuable Hague Convention resources are available online at  www.missingkids.com.

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

Technorati tags:

parental kidnapping, parental abduction,

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.”

When can a parent transfer jurisdiction?

Today's families are mobile. Relocations for work or because of remarriage are common. Thus, the question about when and under what circumstances a custodial parent may remove children from the State of Michigan to relocate is frequently asked of Michigan family lawyers.

In Michigan, as elsewhere, state laws mandate that judgments of divorce retain jurisdiction over the children's custodial and parenting time issues. 44 states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. This Act eliminates some of the problems that were experienced as a result of conflict between the Uniform Parental Kidnapping Act and the Uniform Child Custody Jurisdiction Act.The whole concept of the UCCJEA is to avoid concurrent jurisdiction.

This Act defines the term "the child's 'Home State' " and controls the issue of which state, of two competing states, has the authority to make "an initial custody determination" with regard to any child involved in a proceeding -- whether it's a divorce action, a paternity action, a child custody action. During the course of post-judgment proceedings, once again, the issue of which state is the child's "Home State" again controls where the contested issues will be heard and decided and court orders will be enforced or modified.

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.

Roadmap: How to Win a Relocation Motion

A difficult issue is raised when a parent wants to relocate with the parties' children to another state. Michigan child custody orders typically provide that neither parent may remove the children from the State of Michigan without the court's approval. Since the enactment of "the 100-mile" law, clear-cut standards are developed for trial courts to follow in deciding whether to grant a motion brought by a parent who wishes to relocate.