UPDATES IN MICHIGAN FAMILY LAW

Executive Order 2020-41: Re: Use of electronic signatures, remote notarizations, affidavits, and acknowledgments

Michigan Governor Gretchen Whitmer signed Executive Order 2020-41 on On Wednesday, April 8, 2020. The Order will reduce unnecessary in-person contact, through the use of electronic signatures, remote notarizations, remote witness attestations and acknowledgments, and remote visitations in order to protect the health and safety of Michigan citizens. Executive Order 2020-41 was effective upon signing and will continue through May 6, 2020 at 11:59 p.m.

Governor Gretchen Whitmer said: “It is important that Michiganders take every precaution to avoid person to person contact. Encouraging the use of e-signatures and alternative means of notarization will protect more people and help us slow the spread of COVID-19 in Michigan. I will continue to work around the clock to ensure we protect the most people we can from this virus.”

Executive Order 2020-41 will help ensure that necessary transactions and interactions may continue to occur during this time of crisis without putting the health of Michigan residents the health of their families at risk.

Unless the law specifically mandates a physical signature, Executive Order 2020-41 temporarily suspends the rules and procedures under the Uniform Electronic Act and permits the use of an electronic signature for a transaction whenever a signature is required under Michigan law. Additionally, the order specifics that any notarial act that is required under Michigan law may be performed utilizing two-way real-time audiovisual technology, provided that certain conditions within the order are met.

Child Custody | Unmarried Parents | Parental Abduction

Scott Bassett, Michigan family law appellate lawyer, recently responded to a colleague's question about custodial rights of mother and father when the parents are not married.

"Mom has custody, but by operation of law, not by court determination, and the father is not to be prejudiced by this status when filing an action to seek custody or parenting time.

"After both the mother and the father properly sign the acknowledgment of parentage and it is filed with the state, the mother has initial custody of the child (including legal custody), without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or agreed by the parties. MCL 722.1006. However, this initial custodial grant to the mother does not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time. Id. Because an initial grant of custody pursuant to MCL 722.1006 is by operation of law and not by judicial determination, a noncustodial parent is not required to demonstrate proper cause or a change in circumstance to modify this initial custodial grant. Sims v Verbrugge, 322 Mich App 205 (2017). A police agency may rely on a duly executed acknowledgment of parentage as establishing the mother’s custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise. OAG No 7191 (Mar 28, 2006)."

Thank you, Scott, for calling attention to this statute and for explaining it. I find that it is largely unknown by so many, including law enforcement and by some courts. Because fewer people are marrying and there are increasing numbers of children born out of wedlock, hopefully with an AOP signed (and often without), I expect this trend to increase--meaning I expect to see increasing numbers of intrastate child abduction in the future.

 

The Abuse Neglect Proceeding. Identifying the Father within the Case

To quote Anne Argiroff, who has often given of her time to assist in preparation of Amicus Briefs for cases involving protection of parental rights:

“In Troxel v Granville, 530 US 57, 120 S.Ct. 2054 (2000), the United States Supreme Court declared that parents have "perhaps the oldest of the fundamental liberty interests recognized by this Court," i.e. the right to determine the care, custody, and control (including the associations) of their children. 530 US at 65.

“Children share in this due process liberty interest with their parents. In In re Clausen, 442 Mich 648, 502 NW2d 649 (1993), this Court specifically recognized the "mutual due process liberty interest" between natural parents and child. [Citing In re Clausen]

“The mutual rights of the parent and child come into conflict only when there is a showing of parental unfitness. As we have held in a series of cases, the natural parent's right to custody is not to be disturbed absent a showing of unfitness.”

Representing a Father in a Child Abuse and Neglect Case: The Importance of Establishing Paternity

Fathers are important in the lives of children. As you all know, I’ve written extensively on this topic for the past ten or more years. Many young lawyers fresh out of law school frequently handle assignments for child abuse and neglect cases. These cases are a good way to get experience and can be “bread and butter” for young lawyers building their practices. But the precious lives of children and the constitutional rights or their parents and the responsibilities of their parents are in the hands of often inexperienced lawyers. Establishing paternity within the child protective is essential for many reasons, not the least of which is to protect his parental rights and to make him available for placement of the child.

Identifying the Father:     It is important that all parents involved in a child’s life are included in the child protective proceedings as soon as possible. Early identification and involvement of a noncustodial legal father who is actively involved in a child’s life may allow him to serve as a safe and permanent placement for a child. On the other hand, an absent and uninvolved legal father should be located, made a respondent to the petition, and, if appropriate, have his parental rights terminated. Only by establishing paternity within the case may the biological father protect his parental rights and be permitted to participate in the proceedings.

Revocation of Paternity | What is a "Mistake of Fact?"

The Michigan Court of Appeal has released a new published opinion in a case involving the Revocation of Paternity Act. Unmarried parents should take note of this case because it shows how a court will handle a case involving custody and parenting time of a child after the parents have both signed an Affidavit of Parentage and they later split--more than three years after the birth. In Kalin v Fleming, ___ Mich App ___ (Michigan Court of Appeal Docket No. 336724, Decided November 21, 2017) (For Publication), the Court of Appeal rejected the mother's argument that she was entitled to a revocation of the Affidavit of Parentage ("AOP").

The parties signed the AOP the day after the child's birth. Fleming later admitted that she did not tell Kalin that there was a possibility that he was not the father. More than three years after the child's birth, these folks split up. Fleming (the mother) refused to allow Kalin (the father) to see the child. She texted Kalin and told him that he wasn't the father. He then filed an action in Family Court seeking custody, parenting time and child support.

Child custody | Unmarried parents | Acknowledgment of parentage

The question has arisen whether law enforcement agencies can or should refuse to recover minor children of an unmarried mother from a person (for example, from the biological father) who has no court order for custody. The answer is "No!" Law enforcement agencies should assist the unmarried mother of children who are wrongfully taken from her and kept by another--even if that other person is the father of the child(ren). 

Section 6 of the Acknowledgment of Parentage Act gives a biological mother initial custody of a child without prejudice to the father's right to seek a court order for custody or parenting time. See MCL 722.1006 here. However, it is common for law enforcement agencies to refuse to assist in cases where, for example, a father may take the child(ren) and run, or may keep them from or hide them from the mother. "It's a civil matter," they will usually say. "You have to go to court to get a court order." Parents and lawyers should persist. In Michigan, Attorney General Mike Cox was asked to give a written opinion of MCL 722.1006 and his opinion is that the police may rely upon an acknowledgment of parentage if there is no custody order.

Attorney General Mike Cox wrote (in part):

Passports | Parental Kidnapping | Prevention & Recovery

Updated April 16, 2020:     A parent expressed concerns yesterday about issuance of a passport for a child. The parent's fear was that the other parent, having no right of custody, might be able to obtain a passport for the child and to remove the child from the country. Certainly, the Hague Convention, can be of assistance in recovering children who are wrongfully removed. However, this is an expensive, time-consuming, and not always successful process. This is particularly true if a child is taken to a country that is not a Hague Convention signatory or to a country that is a treaty partner but which is non-compliant.

As a practical matter, Homeland Security is now requiring that any child have his/her own passport -- even for travel to Canada or Mexico.  In a high conflict case involving one or more foreign-born parents, where there is a potential flight risk, there are certain protective measures that will help to prevent a parental abduction.

One situation that is encountered more frequently recently, since many parents are not married to each other, is that one of the parents may remove the child from the country (if this is an international abduction) or out of the state. In Michigan--a very large state--one abduction with which I am familiar involved a father removing a toddler from the Upper Peninsula to an area in upper Michigan (in "the mitten." The distance between the mother's home and his home was about 350 miles. This means the abduction might as well have been to another state given the travel time. It's been my experience that usually, the "taking parent" is the mother, but this is not always true. I've handled international and interstate abductions where the father was the "taking parent."

When the parents are not married to each other, but they have executed an Acknowledgment of Parentage, that document, consistent with The Acknowledgment of Parentage Act of 1996 is clear about which parent has the right to custody of the child: