UPDATES IN MICHIGAN FAMILY LAW

Relocation Reality--After a D.I.Y. Divorce case--with no Money to Appeal

Many people choose to do a do-it-yourself divorce. Sometimes it is a mutual decision and the divorce is quite simple. Perhaps the parties own no real estate, have no retirement accounts, have no minor children. That's really simple. 

However, when the parties have minor children--where child custody, parenting time and child support are issues--that is a different situation. Major mistakes can be made by people--people with little education or even people with a college education. If real estate is involved--that's another problem. What about retirement plans? What if the mother has been a stay-at-home mom since the children were born? What if her background does not include any knowledge about retirements? Often, retirement benefits are the most valuable assets of the marriage.

And . . . what if Dad is really just lying to her . . . it's NOT a D.I.Y. divorce for him. He has a lawyer guiding him in the background. Mom has no lawyer. And Dad is very persuasive or devious. So Mom is in the DARK. Dad engages in emotional abuse and financial abuse to get his way. And the "dirty deed" is done. It's been done before, and it will be done again. Below is a redacted brief, actually filed in a court, with some hope that equity could prevail. See the last page . . . the Download is below the image.

 

Download OTHER.SHOE.BRIEF

How to Co-Parent during the Coronavirus Crisis: Part I

Michigan parents and parents in other states want to know what they are expected to do about custody and parenting time during this critical time of Coronavirus with school closures affecting so many families. They ask: Must I follow the existing parenting time order? As with so many child-related queries, the answer must be: "That depends."

The Michigan State Court Administrator's Office has produced an advisory Download Covid-19.CustodyPT-FAQ

This Advisory Bulletin provides explicit details about what the Michigan courts are expecting co-parents to do with respect to existing custody and parenting time orders. The important thing to remember, as always, is that if you reach an agreement with your co-parent about changing the terms of parenting time, it is important that both parents agree in a text or email (in other words, be sure to have it in writing--even it that is a text or email).

But, of course, things can change any day. Here is a link to a resource, the journal Education Week, free access to all for this specific information. These are School Closings, State-by-State: [updated at least once a day and at least once on weekends]

Surviving Parenting Time While Working From Home (WFH): Many, if not most, schools are providing online instruction. Sadly, many children live in households with no Internet access. That will make it more difficult for some parents to figure out how to keep children happy and busy. Finding resources--preferrably free resources--is important to our families and family child caregivers.

When does a State have Continuing Exclusive Jurisdiction Regarding Child Custody?

Subscribers, please note that this is a post on my Military Blog that I am moving to the Family Law Blog.

In today's mobile society where parents and children move from one state to another after a divorce or custody action, the question often arises whether the state that made the initial child custody determination continues to have exclusive, continuing jurisdiction over modifications of custody orders. The Michigan Court of Appeal ("COA") answered this question by relying on decisions from Oregon and California for assistance. [Practice Pointer: This case is often cited for the proposition that, when dealing with cases filed under the UCCJEA, the trial court may rely upon cases from other jurisdictions because the UCCJEA is a uniform act]. That proposition carries over to other Uniform Acts.

In White v Harrison-White, decided on August 21, 2008 (for publication), the COA was faced with a case where the parents had originally lived in Ontario. The father initially moved to Michigan, commuting to Ontario on weekends. Later, the mother and child followed, and they lived in Michigan for a few years. When the marriage deteriorated, the mother and child moved back to Ontario.Dad filed for divorce about a month later.

The divorce and custody action proceeded in Michigan, which was, of course, the child's Home State under the Uniform Child Custody Jurisdiction and Enforcement Act. ["UCCJEA"] A parenting-time schedule was set forth in a custody order that allowed the father parenting time on alternate weekends, with one per month to be exercised in Michigan and one to be exercised in Ontario. As the child got older, Dad received increased parenting time in Michigan, including several weekends per month, several long holiday periods, and three consecutive weeks in the summer.

Subscribers, please note that this is a post on my Military Blog that I am moving to the Family Law Blog.

In today's mobile society where parents and children move from one state to another after a divorce or custody action, the question often arises whether the state that made the initial child custody determination continues to have exclusive, continuing jurisdiction over modifications of custody orders. The Michigan Court of Appeal ("COA") answered this question by relying on decisions from Oregon and California for assistance. [Practice Pointer: This case is often cited for the proposition that, when dealing with cases filed under the UCCJEA, the trial court may rely upon cases from other jurisdictions because the UCCJEA is a uniform act]. That proposition carries over to other Uniform Acts.

In White v Harrison-White, decided on August 21, 2008 (for publication), the COA was faced with a case where the parents had originally lived in Ontario. The father initially moved to Michigan, commuting to Ontario on weekends. Later, the mother and child followed, and they lived in Michigan for a few years. When the marriage deteriorated, the mother and child moved back to Ontario.Dad filed for divorce about a month later.

The divorce and custody action proceeded in Michigan, which was, of course, the child's Home State under the Uniform Child Custody Jurisdiction and Enforcement Act. ["UCCJEA"] A parenting-time schedule was set forth in a custody order that allowed the father parenting time on alternate weekends, with one per month to be exercised in Michigan and one to be exercised in Ontario. As the child got older, Dad received increased parenting time in Michigan, including several weekends per month, several long holiday periods, and three consecutive weeks in the summer.

When Domestic Abuse Affects Children | Family Court Strategies for Parents, Lawyers, Judges & Others

Since 1992, Daniel Pollack, MSSA (MSW), JD has been a professor at Yeshiva University's School of Social Work in New York City. Professor Pollack is a frequent contributor to this blog. Professor Pollack and his colleague Toby Kleinman published an e-book in 2017 that is a manual for lawyers and parents alike for family court cases involving domestic violence.

When domestic abuse and children are involved, divorce and custody can be the epitome of high-stakes conflict and frustration and all too frequently protective parents lose custody of their child to a named abuser. Domestic Abuse, Child Custody, and Visitation helps mental health professionals, attorneys, and lay readers navigate the judicial process so that decisions are truly made in the best interest of children. The text reveals how all the puzzle pieces of the judicial process fit together -- judges, attorneys, mental health experts, children, spouses -- and how to overcome many of the obstacles they will confront along the way. This runs the gamut, from the selection of a lawyer and experts, to setting necessary groundwork for an appeal. Domestic Abuse, Child Custody, and Visitation is an essential read for mental health professionals and lay people involved in divorce and custody, family court judges, family law attorneys, and mental health professionals involved in domestic abuse and custody matters.

This book is available in hard cover, paperback and Kindle editions. See the Amazon online store here.

"Parental Alienation" -- High Conflict Child Custody Cases

Most of the lawyers, court personnel, judges and parents who read my blog are well aware that there have been many--too many--of these cases. Some cases have gained notoriety that has not been helpful -- that has often harmed not only the parents and children, but also lawyers and/or court personnel trying to resolve these vexing and destructive cases.

Thank you to Harry B. Siegel
, the Managing Partner of SIEGELLAW in Ellicott City, MD, for initiating another dialogue about high conflict cases among family lawyers across the country in his post today to the ABA Family Law Listserv today. Siegel wrote: "Whether we call it parental alienation (a bad title), resistant children (likely the worst title I have ever heard in my life) or just plain high conflict cases, these are the intractable cases that vex families, divorce attorneys, mental health professionals and jurists."

Attorney Siegel opined that these cases "appear to be, at best, based on 'soft science,' which likely would never meet any Daubert standard. The Washington Post article recounted some of the history behind the term "Parental Alienation Syndrome," coined by psychologist Richard Gardener many, many years ago. It is noted that the American Psychiatric Assn has chosen NOT to include this term as a diagnosis in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), which lists all psychiatric disorders, and this has created enormous uncertainty around its usage in the legal system. Siegel provided a link to a recent Washington Post article that describes the most horrific case I have ever reviewed. 

 

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.

Fatherless children? Why would any mother or father think this is a good idea?

I see this all of the time--a mother who wants to eliminate a father from a child's life or their children's lives. Sometimes this is in the context of a single mother . . . "Single Mother By Choice" . . . procreating and never involving the father. Sometimes, however, it sadly occurs at the time of divorce--often a time when the children are pre-teens or teens. When the attempts to separate the father from the children--or to marginalize him . . . making him a "weekend dad" and not cooperating with sharing holiday times or summer vacations, this makes me feel for the children.

Worse yet . . . a constant tugging of war? The children in the middle? The children asked to take sides . . . to "tattle on" the other parent?

I do not see dads doing this (except in one unusual case where the "legal father" just wanted to get even with the biological father.

See this news article from the Washington Examiner, in which the author writes, quoting Barack Obama:

Children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.

Fathers are critical to the well-being of children. Critical. Their existence creates kids with fewer emotional and behavioral problems and better academic and long-term success. Girls exhibit less psychological distress, and boys' unbridled aggression becomes channeled in a meaningful and productive way. It's a win-win.

The entire article--well worth reading--is here:

http://www.washingtonexaminer.com/article/2632334 

 

Relocation Cases | What Standards will a Court Follow in Decisions?

In a landmark decision, the New Jersey Supreme Court reversed nearly two decades of law in a landmark decision on Tuesday by setting a new standard when it comes to the relocation of children in child custody cases. In Bisbing v Bisbing, released on August 8, 2017, that court overturned the law that required New Jersey courts to consider certain factors--factors with little emphasis on the child(ren)'s best interests--when deciding whether to permit a custodial parent to relocate children from New Jersey to another state--often far away. The New Jersey law was one that Michigan adopted long ago, and later codified in Michigan Laws at MCL 722.31. Interestingly, the Bisbing court held that relocations should focus on the best interests of the child(ren). Will Michigan follow this growing trend?

The Bisbing relocation dispute began in 2015 case. The Bisbing Supreme Court held that divorced parents who want to leave New Jersey against the other parent's wishes must prove that the move is in the child's best interests, keeping the focus on the child. Previously, the child's interests were considered, but the focus was on whether the move would "cause harm" to the child, according to the ruling.

"It is my sincere hope that our lower courts will apply this decision in a way that recognizes that Skype, FaceTime, and text messaging cannot replace the father who coaches his child's soccer team after work, or the mother who gets up for work two hours earlier than she needs to so she can participate in her child's 6 a.m. hockey practice," said Nunn, a partner at Einhorn Harris in Denville.

Child Custody Proceedings and SCAO Time Pressures

In a new opinion issued on June 29, 2017 by the Michigan Court of Appeals, the COA admonished the trial court for apparently putting the issue of docket control ahead of the lawful exercise of the court's powers under the Child Custody Act. Fante v Nova, Docket Nos 334735; 336085 (Consolidated on appeal)

The defendant father appealed orders of the trial court modifying custody of the parties’ children to “return” sole physical custody to plaintiff mother after the children had spent more than a year in defendant’s sole care. The Court later dismissed defendant father’s motion to modify custody when he did not appear for a hearing, and later denied the father's renewed motion to modify custody and parenting time. He appealed to the Michigan Court of Appeals.

The COA vacated and remanded, requiring the trial court to hear the father's motion to change custody. This Court of Appeals Opinion concisely and clearly sets out the approach a trial court must take in a contest custody and/or parenting time case. It is an excellent summary of how these cases should proceed.

Witness Tampering | Jail Calls: What Do Kids Have to Do with It

Witness Tampering: In 2011, Professor Amy Bonomi, Professor and Chair of Human Development and Family Studies at Michigan State University and David Martin, King County (Washington) published the field’s first analysis of jail calls that occur between domestic abusers and their victims; outlining a five-stage model describing how abusers manipulate their victims into changing their stories to lessen impending criminal charges. Recently, a new commentary has been published by Bonomi and Martin expanding upon their earlier research. Professor Bonomi has graciously approved the sharing of this information on my blog pre-publication, and a link to the article will be live for a week or two. After that, it's a "pay-per-download."

Professor Bonomi states:

"As professionals working in the field, a common question we are asked when leading an investigation and providing expert testimony is how abusers involve their children (directly or indirectly) during jail calls.

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):

Domestic Abuse | Custody & Visitation / Parenting Time

When domestic abuse and children are involved, divorce and custody can be the epitome of high-stakes conflict and frustration and all too frequently protective parents lose custody of their child to a named abuser. Domestic Abuse, Child Custody, and Visitation helps mental health professionals, attorneys, and lay readers navigate the judicial process so that decisions are truly made in the best interest of children. The text reveals how all the puzzle pieces of the judicial process fit together -- judges, attorneys, mental health experts, children, spouses -- and how to overcome many of the obstacles they will confront along the way. This runs the gamut, from the selelection of a lawyer and experts, to setting necessary groundwork for an appeal. Domestic Abuse, Child Custody, and Visitation is an essential read for mental health professionals and lay people involved in divorce and custody, family court judges, family law attorneys, and mental health professionals involved in domestic abuse and custody matters.

From Oxford University Press. Authors: Toby G. Kleinman and Daniel Pollack

You may preview and order this book here. http://tinyurl.com/kfde52q

Helping Children Adjust to Separation and Divorce Issues through Bibliotherapy

I have been looking for a good list of books to help guide children through the trauma of family separation and divorce issues. The other day I found one that is particularly helpful because the list is organized by age groups. In addition, there is a list of books to help parents negotiate difficult problems arising during the divorce process.

The publication  listing books by topic, age groups and reading levels is: HELPFUL READINGS TOWARD THE UNDERSTANDING OF FAMILY CHANGES, ROBERT A. ZIBBELL, PH.D. This publication in an annotated bibliography and resource list for divorce or separated parents and their children. This collection was part of a project of public information initiated by the Hampshire County Probate and Family Court in Northampton, MA

Your local library can help you obtain books through interlibrary loan, or you may use this resource if you are a Michigan resident: MeL, the Michigan eLibrary, a 24/7 online library for Michigan residents, is found at this URL: http://mel.org/index.php?P=Home  MeLCat allows you to order books, audio books, music, movies and other materials and have them delivered to your participating library. You can view an online video to familiarize yourself with MeLCat including portals for specialized resources such as those in health, business and also areas for kids and teens. If you live in another state, just Google "interlibrary loan" AND [ ________ ] (the name of the state in which you live) to get more information about online resources. Or, in the alternative, visit your local library.

Home Alone | Parental Dilemma | Links to Posts

The topic of how old a child should be before a parent  leaves the child home alone has continued for the past ten years to be the most frequently researched and read on my blog Updates in Family Law. I have often thought this to be research done by parents who believe that this topic is consistent with a best interests of the child analysis related to custody or parenting time. For the convenience of those researching this issue, here is a list of all such posts and related posts:

Home Alone: Parts I through VII.

Home Alone: Child care and babysitter issues Part I, July 2007 

Home Alone: Summer Parenting Issues and "Failure to Protect" Part II, August 2, 2007 

Home Alone Part III October 4, 2007 

Home Alone Part IV October 11, 2007 

Home Alone Part V (Safety Tips) October 12, 2007

Home Alone Part VI  Assessing Readiness July 12, 2011

Home Alone Part VII  November 7, 2017

Related Reading:

FBI reports a dramatic increase in domestic parental kidnappings (Interference with rights of custody) February 8, 2017 

Parental Abduction | Another Resource for Left Behind Parents (FBI Abduction ID Kit) August 23, 2011

Resources for International Parental Kidnapping  April 11, 2005

Affidavit of Paternity, Child Custody, Parental Relocation, Parental Abduction

It's time for another look at how the laws related to parentage, custody, relocation and parental abduction intersect. Consider a recent and typical case with these facts--often encountered by family lawyers helping young parents:

√  The parents were unmarried

√  The parents had signed an Affidavit of Parentage at the time of the child's birth. See Michigan's Affidavit of Parentage,  DCH-0682 (Rev. 4-16) By authority of Act 305 of 1996 as amended here. Download Affidavit of Parentage.

√  When the child was about three, the parents' relationship came unglued, Father committed an act of domestic violence upon Mother. An Ex Parte Personal Protection Order issued upon her application.

√  Father removed himself to a county located on the other side of the Mackinac Bridge--a four hour drive on a good day. On a bad day (high winds, snow storm, etc.), the bridge can be closed to traffic.

Love & Marriage | All Children of Parties Must be Disclosed

 All Rights to Lyrics and Video Owned by Estate of Frank Sinatra

The Importance of Child Abuse Prevention

Today's Guest Author is Sean Morris.

Child abuse comes in many different forms, but knowing the definition of child mistreatment, how to prevent it, and how to promote positive change can make all the difference for a family.

Abuse can be sexual, physical, or emotional in nature and can include neglect. Studies show that all of these can lead to adverse effects on children later in life, including substance abuse and other risk-taking behavior, social disorders, teenage pregnancy, anxiety, depression, and suicide, so it is important to stop the cycle as soon as possible. According to the CDC, mistreatment can include:

●    Physical abuse, such as hitting, kicking, or shaking
●    Neglect of any kind, including not meeting a child’s needs for food, shelter, clothing, or education
●    Emotional abuse, such as shaming, threatening, or name-calling
●    Sexual abuse, including physically abusing a child or exposing him/her to sex acts

Photo by Pixabay

What is a Reasonable Cost of Child Care? What About Relative Care?

A colleague asks how to resolve the issue of child care costs and child support modification when the custodial parent cannot find/afford reliable day care and has, in the past, lost her job because of inability to conform her schedule to the employer schedule. This Mom finally, in order to work, has been paying her teenage children $50 per week to watch their little sister (the child of the payer of support, not of school age). Thus, Mom was able to find a job last August.  Fifty dollars per week is far less than the cost of available child care costs during the 35-40 hours per week while mom works in the restaurant field.  Mom cannot afford to pay a licensed day care and the father has not been paying reasonable child support that includes child care.  The Referee questions whether the child care costs are actually being paid to the teenager, and questions whether she can include this in the computation. The children are in the care of the father half the time.

Common questions are: How old must a child be to be left home alone . . .or to be left alone in the care of a sibling? A couple of other questions and concerns arise:

1)    Is the childcare cost really being paid?

Change in Filing Fees Divorce with Minor Children

Effective April 14, 2015,  changes in MCL 600.2529 will require the payment of the $80.00 Friend of the Court fee upon the filing of a Complaint regarding custody, support or parenting time of a minor child.  Previously this fee was collected at the time of Judgment.  New complaints of this type include the $150.00 filing fee and the $80.00 Friend of the Court fee for a total of $230.00.

Truefiling.com will be modified accordingly so please make sure to select the correct document type based on if the case was filed prior to April 14, 2015 or after that date.  Please see the attached memo from the State Court Administrator’s Office for further details.

Download Amendment of MCL 600 2529 FOC fee collection

Verbal Abuse Hurts at Least as Much as Physical Abuse

People used to say "Sticks and stones may break break my bones, but words will never hurt me. Experts now say that this old, old saying is not true and that because verbal abuse is often continuous, the consequences can be longer-lasting.

 

The April issue of the Harvard Mental Health Letter says that scolding, swearing, yelling, blaming, insulting, threatening, ridiculing, demeaning, and criticizing can be just as harmful as physical abuse, sexual abuse outside the home, or witnessing physical abuse at home. According to the report, constant and severe verbal abuse creates a risk of post-traumatic stress disorder, the same type of psychological collapse often experienced by combat troops. 

Families in Crisis | What Matters Most? Part I. "The Vanishing Neighbor"

Scott Bassett, one of Michigan's finest family law appellate lawyers mused the other day about the fact that Americans seem so isolated socially. Of course, we see people tuned out in a group--focused only on their iPhones looking at Facebook, Twitter or texts. "Forgive me for getting philosophical this early in the morning, but I've often wondered why so many of our clients, particularly those younger than me, have few neighbors or nearby friends they know well enough to rely on when unexpected problems arise (child care, a car breakdown, borrowing a cup of milk, etc). They lack the informal "safety net" that was present when the older members of this discussion group were growing up, and that has significant consequences for their post-divorce quality of life. The questions presented are: How important is community--an informal safety net? How important is school as an informal safety net? How important is family (from the perspective of the parent and from the perspective of the child?

Parenting Time in a Non-Hague Convention Country? Possible or Not?

May a custodial parent, over the objection of the co-parent, exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction? Parent A says:  "I am the custodial parent. I should be able to take my children to visit my parents in Jamaica (for example) without my co-parent's permission because I have custody and he/she only has parenting time." Parent B says:  "Michigan law prohibits a parent from exercising parenting time in a non-Hague Convention country if I do not agree. And I don't agree because all of the custodial parent's relatives live in the non-Hague Convention country and I am fearful that if they travel there, the children will never be returned."

And, indeed, this is what the Michigan statute says:

Facebook | A Family Lawyer's Perspective

A family lawyer in a case involving fault or significant flaws that can negatively impact a child custody proceeding loves to have access to Facebook archives. These can be a goldmine of evidence. The first thing a good family lawyer will do is to advise new clients to stay off Facebook and other social media sites--or at least not publish comments that should remain private.

Subscribers and other frequent readers of Updates in Family Law will not be surprised to learn that there are over 40 posts (of about 1100 since 2006) concerning Facebook. All of them may be reviewed here. [NOTE: It's easy to subscribe and receive an email with link to all new posts. Just insert your email address in the box in the upper left-hand corner above.]

Two important blog posts should be reviewed: Facebook | Divorce & Total Recall and Facebook & MySpace | Is it ethical for lawyers tell clients to change, delete? The latter discusses the issue of spoliation. Richard Gould-Saltman, of the Gould-Saltman Law Offices in Los Angeles, California expressed provocative discussion of whether spoliation applies to Facebook and other social media pages. In fact, a Tennessee statute discussed in this post, prohibits post-filing changes (including deletion) of social media pages.

Child Centered Residential Custody & Parenting Time Guidelines

Alton Abramowitz, 2013 national President of the American Academy of Matrimonial Lawyers, shared via LinkedIn today a link to the publicly available and downloadable pdf of the AAML’s Child Centered Residential Guidelines.

Current AAML President, Jim McLaren of South Carolina, described the guidelines as follows:

"[T]he parenting visitation and access schedules presented allow families to choose the most appropriate framework for their children after carefully considering the maturity, circumstances and unique characteristics of each child. The overall goal of the Guidelines is to make every minute that a child spends with each parent to be as meaningful as possible, while decreasing the stress and pressures of the custody process and transitions between households.
We believe that you will find this publication to be indispensable and hope that you will ultimately share it as an essential resource with your clients."

Here's a link to the downloadable Guidelines on the AAML website: http://www.aaml.org/ccrg

Family lawyers are often requested to guide parents toward a child-centered parenting time plan that is developmentally sensitive. This is a great resource, encouraging parents to develop an informed and individualized parenting time plan.

Kids Want Their Parents to Get Along

How did this 6-year-old get to be so wise? She's not reading a script or cue-cards. This is an extemporaneous and sincere plea by a young child that her divorced parents put aside their anger and just get along. This is powerful stuff.

Groundless Child Protective Services Reports | What to Do

Kudos for great mentoring on the State Bar of Michigan Family Law Listserv and for all of her efforts on behalf of clients--paying clients and pro bono clients. What she said!

Michigan lawyer Paula Aylward, who received many accolades in 2013 and 2014, when asked what could be done to stop harassment--a co-parent making serial and groundless reports to Child Protective Services, triggering  CPS investigations, interviews and visits to the children's school and to the other co-parent's home--reports that over the course of nearly a half-dozen visits in a nine-month period resulted in the accusations being unsubstantiated, said this:

"Yes. First, you should ask CPS to report Dad's groundless reporting to the local FOC per MCL 722.628(20). That section of the Child Protection Law provides:

Anxiety--How to Help Those Around You Cope

Children of divorce--often during the divorce itself--and often afterwards as well when there is high conflict--experience anxiety. Many parents are not equipped to help their children deal with anxiety. Parents can feel helpless and overwhelmed. This, of course, usually makes everything worse.

A newsletter, Hey Sigmund, has some helpful advice for parents to help their children deal with anxiety. [These strategies will help adults who are anxious as well.] See "Building Emotional Intelligence: What to Say to Children When They Are Anxious" Posted September 1, 2015 by Hey Sigmund.

Photo credit: Hey Sigmund

Vaccinations | Joint Custody | Kagen Round Two

The Kagen case was before the trial court because Father wanted to have the children vaccinated and Mother opposed. The Court of Appeals remanded this matter to the circuit court for reconsideration of whether securing vaccinations for the parties’ minor children was in the children’s best interests. (Kagen I). The COA opinion in Kagen I described in considerable detail the circuit court’s several legal errors and clearly erroneous factual findings.   The COA remanded with a specific recommended course of action to be undertaken by the trial court on remand. The Court of Appeals decisions provide clear guidelines for all parents and their lawyers about what is required when two parents sharing joint legal custody disagree about a medical issue such as immunization.

(1)  The circuit court was directed by the COA to verify that the vaccination decision would not affect the children’s established custodial environment.  The court complied. 

Contempt Proceedings in Parenting Time Case | Another Look

Annette Burns, an Arizona Family Law attorney and subscriber to this blog, thoughtfully sent me a very interesting Illinois case in which the trial judge faced the same situation that presented last week in Macomb County Circuit Court. I'd like to share that with my readers since the Tsimhoni case has gone viral. It's an important read, respectfully noting the comments of Elizabeth Sadowski, a Michigan family lawyer and colleague, that this is not a case to be "decided around the water cooler."

In In re Marshall, the Illinois Appellate Court noted that

1)    The trial court had jurisdiction over the child in this custody / visitation case;

2)    Where the child admitted to the violations of court order in the presence of the court, this constituted direct contempt and the trial court had authority to deal with the contempt summarily.

Children Jailed for Refusing Parenting Time

I heard about this story through the grapevine. Here in Grand Traverse parents have spent time in jail for refusing to provide access to the other parent. But jailing kids? For weeks?

The Full story is here.

The hearing transcript is here. Download Hearing Transcript.Tsimhoni_kids_sent_to_jail

   Download Order.JudgeGorsyca 7-10-2015

 

 

 

 

 

 

Relocation | 100 Mile Rule | As the Crow Flies

Thanks to Sheldon Larky, terrific family lawyer in Bingham Farms, Michigan for his contribution to our State Bar of Michigan Family Law Listserv this past week. What a lot of mentoring occurs on that listserv! In response to another lawyer's query, Shel wrote:

Pertinent to the appeal in the newly published Michigan case Eickelberg v Eickelberg, __ Mich App __ (2015): Under the 100 mile rule limitation in determining a child’s change of residence [MCL 722.31], the 100 mile rule means radial miles rather than road miles. Road miles refers to the distance between two points along the shortest route of public travel, while radial miles refers to the distance between two points as measured along a straight line. Bowers v Vandermeulen-Bowers, 278 Mich App 287; 750 NW2d 597 (2008), lv app den 481 Mich 908 (2008); Lash v Traverse City, 479 Mich 180, 183 n 1; 735 NW2d 628 (2007).

Relocation | Child Custody & the 100 Mile Rule

Kudos to Anne Argiroff, Michigan appellate lawyer. She recently prevailed in the Court of Appeal in Eickelberg v Eickelberg, a relocation case. Eickelberg was decided on January 27, 2015 [Docket No. 318840] and was approved for publication on March 19, 2015.

After the Plaintiff Mother filed for divorce and prior to entry of judgment in 2010, Mr. Eickelberg moved from Clinton Township to Perry, Michigan. This was a move of 86 miles. Mrs. Eickelberg was awarded custody and Mr. Eickelberg was awarded parenting time that included a mid-week parenting time.

The parties did not get along and a parenting coordinator was appointed. After Mr. Eickelberg moved from Perry to Marshall, Michigan, Mother filed a motion to terminate the PC and also challenged the father's move to Marshall--about 126 miles from the home where she and the children remained. She alleged that his move violated MCL 722.31, commonly known in Michigan as "the 100-mile rule." Father filed a motion to eliminate the mid-week parenting time and to increase his summer parenting time.

Emancipation of Minors

I receive, on average, at least one email each week from minors who ask me whether they can choose which parent with which they want to live. I try to respond to these, if possible. Generally speaking, my response to them is that they need to try to get an intermediary involved so that they have an adult listening to them and hearing what the problems are. I recommend mandated reporters--people whose legal obligation is to report child abuse to authorities. Who are mandated reporters?  I also tell them that no court is going to allow them to live with the other parent just because they don't like the rules at their house.

The age of these young people generally is from 14 to 17. A common myth is that a 14-year-old can choose. Another factor--increasing in the past year or so--is that the teenager knows that the father in his or her family is not the biological father and the teenager has an established relationship with the biological father..

Can A Child Custody Order Be Made Before a Child Is Born?

A question that will likely arise more often now than in the past is this: Can a child custody Order be made before a child Is born? Or, stated another way: Can a pregnant woman kidnap a fetus?

People have been debating the question of when life begins for a long, long time, whether their focus is political, scientific, religious or legal. Thus, why should we be surprised to learn that appellate courts in fourteen states have considered whether the UCCJEA provides a legal basis for trial courts to make orders concerning the custody of a child before that child has been born. The majority (twelve) of these courts have held that custody jurisdiction cannot exist before a child has been born. [1] In the two minority states, the decisions are flawed by a mere assumption that surely pre-birth jurisdiction must exist. A more careful analysis using proper rules of statutory construction could have prevented these anomalies.

A.       IT’S A DRAMA

The most publicly litigated case (publicized in the press, on the evening news, and of course on blogs—both legal and personal), is that involving Sara McKenna and Olympic skier Bode Miller.

Videotaping Child Sexual Abuse Investigation Interviews

Today's guest author is Daniel Pollack, professor, Yeshiva University, School of Social Work, New York City, and a frequent expert witness in child abuse and foster care abuse cases.

From a family lawyer's point of view, the adherence to standards and protocol when a child is being interviewed during allegations of child sexual abuse can spell the difference between whether a conclusion drawn by the interviewer can be said to be valid or invalid. In order to be certain that the protocol is followed, what could be better (especially since no lawyer and no parent may be present during the interview) than having a videotape that can later be viewed to document the procedure followed?

PPO Restricting Respondent to Supervised Parenting Time Held Proper

In Song v Moore, an Oakland County case, the COA held that the trial court properly denied Respondent's Motion to Terminate or Modify a Personal Protection Order that limited him to supervised parenting time only with his adolescent son.

In Song, the mother testified that not only was she knocked around and bruised by the father, but that the father had pushed his son into a wall. Her petition did not, however, request supervised parenting time with the child.

Citing Brandt v Brandt, 250 Mich App 68, 70-72 (2002), the COA approved the Song trial court's order that limited the father to supervised parenting time and denied any modification of that order. In Brandt, a panel of the COA had held that a trial court could restrict the respondent’s conduct with his children, even though the petitioner had not alleged that the respondent was ever violent towards his children under MCL 600.2950(1)(j), the “ ‘catchall’ provision” of the PPO statute.

For greater insight into Song and Brandt, you can read those cases here:

Song:  Download Song_v_Moore

Brandt:  Download Brandt_v._Brandt

Note: Kudos to Vincent Giovanni, for the result in Song. Kudos to the following for the Brandt successful appeal: Family Law Project (by A. Michelle Lane, Delphia Simpson, and Rebecca E. Shiemke), and Michigan Poverty Law Program (by Lynelle Detzler Morgan), Ann Arbor, Ann Arbor, for Lisa M. Brandt. 

Jurisdiction to make Initial Child Custody Determination

Thanks to Jim Ryan for sending me a Court of Appeals decision released recently. Given the paucity of published cases dealing with the UCCJEA and the increased mobility of parents these days, I'd like to see this decision published.

Huffaker v Huffaker was a child custody dispute involving grandparents with a guardianship in Wayne County and parents who divorced in Utah after the birth of their child in Utah. The case presented the Court of Appeals (COA) with a unique opportunity to explain how to determine which state has subject matter jurisdiction to make the initial child custody determination for an infant who had not resided in the state of birth for 6 months. This is a case that--unfortunately--may mirror many divorce and/or paternity cases that Michigan family lawyers are seeing these days.

Unsubstantiated CPS Reports of Abuse Result in Loss of Custody

Family lawyers are seeing a lot of custody cases these days in which allegations of abuse result in an investigation by Child Protection Services (CPS) workers. When a parent reports alleged abuse to CPS, that agency must investigate. If the allegations are found to be untrue, there can be a significant negative impact when the trial court makes decisions about child custody and parenting time. In a recent Michigan case, the father was awarded sole custody and that mother was awarded two hours of supervised parenting time per week until further order of the court.

New Form | Affidavit of Parentage

Parentage may be established at the time of birth or later when the mother and father of the child execute an affidavit of parentage. The affidavit of parentage form was updated in October 2013--more than a year after the enactment of the Revocation of Parentage Act.

Everything you need to know about completing and filing the form is here: Download Instructions.Affidavit of Parentage These instructions also give you information about how to obtain a copy a party's copy has been lost or mislaid.

A form that is fillable (that you can use the computer to complete) is here: Download Affidavit of Parentage.FillableForm

A form that you can complete with a pen is here: Download Affidavit of Parentage
Be sure to save the fillable form to your computer prior to completing it so that you may save the form once it is completed. If filled out online, the information will disappear when you close the form.

UPDATE:    To read additional Posts about the  Revocation of Parentage Act and to learn about how this new law has changed the process and procedures involved with respect to this issue click here.

Post-nuptial Agreement Unenforceable | Against Public Policy

An Illinois appellate court affirmed a trial court ruling that a postnuptial agreement was unenforceable as against public policy where the agreement gave a third party “counselor” sole power to determine custody and other issues including property and support. In the words of the appellate court, the agreement was so one-sided and “draconian” that it was substantively unconscionable. In the parties' agreement, the counselor was given sole authority to declare that the reasons for filing for divorce were not "reasonable." If the reasons were "unreasonable," then the “counselor” had sole power to determine custody of the children and to deprive the wife of her property rights set out in the agreement. The vagueness of the term “unreasonable divorce” raised a possibility that the mother would lose her property rights if the third-party “counselor” who was empowered to make that determination withheld approval for a divorce for any reason.

Mother's Refusal to Facilitate Relationship with Dad Leads to Loss of Custody

The recent case of Erwin v Clancy, Docket No 317823, (Mich) August 5, 2014 illustrates the dangers of a parent's effort to destroy the children's relationship with the other parent. A quick read of the opinion shows that the father went from supervised parenting time to sole legal and primary physical custody--with a relocation to Arkansas. The mother was allowed parenting time one weekend per month to be exercised in Arkansas.

Parents who are determined to destroy or contaminate the parent-child relationship between the children and the other parent should read this decision and be forewarned of the danger of such conduct.

You may read the case here: Download Erwin v Clancy

Child Developmental Stages & Parenting Time Plans

Developing a parenting time plan for children usually is not easy. It is especially difficult in a high-conflict case. As family lawyers, we should give our clients realistic expectations about the kind of parenting time plan they can count on if the county in which the case is pending has a standard parenting time plan.

We also owe it to our clients--and especially to their children--to encourage the development of parenting time plans that are sensitive to early childhood development.

“Good to Go” (and Return!) Part 3: Planning and Prevention

Mark E. Sullivan is today's Guest Author. This is an article about military parents who have sole or primary custody, and how military absences can affect their custody orders and their military family care plans. The first section of the article will cover the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. Please see the bottom of this post for Mr. Sullivan's Author Bio

[The previous two sections of this article covered the ground rules for protecting and advising a military custodian, and the danger of adverse court action if the servicemember doesn’t plan ahead. This article concludes with a prescription for avoiding disaster by crafting the court’s custody order with an eye to the future and a plan for who gets custody when the military member is absent.]

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“Good to Go” (and Return!) Part 2: The Sailor and the Perfect Storm

Mark E. Sullivan is today's Guest Author. This is an article about military parents who have sole or primary custody, and how military absences can affect their custody orders and their military family care plans. The first section of the article will cover the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. Please see the bottom of this post for Mr. Sullivan's Author Bio.

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[The previous section of this article covered the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. It also outlined the key points in maintaining military custody for a parent in uniform, dealing with the custody claims of the other parent during a military absence, appointing a step-parent or relative as alternate custodian, and to resuming custody when your client returns from overseas.]

UPDATE: Time-out Called in Servicemember's Custody Action

While I was still "in press" on this Blog today, I missed an update to the Matthew Hindes' case. Matthew Catchick, a family law attorney in Southfield, Michigan, posted a link to a Detroit Free Press article on the State Bar of Michigan Family Law Listserv that is highly relevant to this case. Thank you Matt! Yesterday, Sunday June 23, 2014, Judge Noe in Lenawee County, Michigan issued an order adjourning the pending motion.

Apparently, there's been some miscommunication in this case, now resolved . . . at least as far as the need for a dispositive hearing today. The judge has adjourned the hearing on the basis of servicemember Hindes' right for relief under the Servicemember's Civil Relief Act.

Associated Press, Judge orders break in Adrian sailor's child custody case, Detroit Free Press, June 23, 2014 at 9:54 AM, accessed on June June 23, 2014 at 3:23 PM

“Good to Go” (and Return!) Part 1: Unraveling the Rules

Mark E. Sullivan is today's Guest Author. This is an article about military parents who have sole or primary custody, and how military absences can affect their custody orders and their military family care plans. The first section of the article will cover the ground rules for protecting and advising a military custodian as to mobilization, sea duty, deployments, and other military absences. Please see the bottom of this post for Mr. Sullivan's Author Bio.

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Janet Smith was just stopping for a cup of coffee at The Courthouse Deli when she saw Sam Jones in a corner booth looking glum. After ordering, she came over and joined him, asking “Why the long face, Sam?”

Sam replied, “I’ve got a problem, Janet. Maybe you can help me – I know you were in the Army JAG Corps for four years, and you might know some answers. It’s about a military custody situation.”

“Sure,” replied Janet. She had done her homework and was familiar with the literature on military custody issues.1 “Let’s hear what it involves.”

Servicemember Left Child with Step-Mother & Now Threatened with Contempt / Loss of Custody

Matthew Hindes, a father and U.S. Navy sailor on active duty and stationed on a submarine in the Pacific Ocean, has been ordered by a Michigan judge to appear in court or he could lose custody of his daughter, and be arrested for contempt. Hindes requested a stay of the hearing for 90 days under the "Servicemembers Civil Relief Act," cited also by his commanders. The judge has refused to adjourn the hearing.

In 2010, Kaylee Hindes' mother was found to have neglected her and custody of Kaylee was awarded to Matthew Hindes. Apparently the mother is now complaining because Hindes left his daughter in the temporary care of his wife, Kaylee's step-mother, in Washington State while he is on active duty. Hindes' commanders cite the "Servicemembers Civil Relief Act" as a reason why the Michigan Court should give Hindes, an active duty service member, 90 days to make it back for court hearings. But the judge won't do it, because he says Hindes should have left the 6-year-old child with her mother while he was overseas.

Source:   Eldridge, Keith, Local sailor ordered to be in court, despite being out to sea, KomoNews.com, Jun 17, 2014 [Accessed June 23, 2014]

NOTE: SEE UPDATE HERE  http://tinyurl.com/o526m8f

Video News here:

Post-judgment Custody Modification

There are few things so devastating to children than the inability of parents to effectively co-parent while leaving the child out of the middle.

Consider Patton v Patton, an Oakland County case, unpublished. The opinion was released yesterday, March 18, 2014. Defendant Father appealed the trial court's modification of 50/50 joint custody. After trial, Plaintiff Mother was awarded sole legal and sole physical custody of the parties' 16-year-old minor child.

Some highlights:

1)    The trial court, after one day of trial, appointed a legal as GAL. The issues on appeal were whether she was a GAL or an LGAL and the scope of her appointment.

2)    Challenges to the trial court's analysis of the best interest factors. One addressed the conclusion that Mother prevailed on the factor of "moral fitness." Since lack of moral fitness is often raised today in scorched earth family law litigation, to the benefit of no one, usually, it's a good idea to take a look at this again. In Patton, the COA stated:

France: Divorce by Mutual Consent & No Judicial Action?

According to the Associated Press today, France is considering a process of divorce by mutual consent bypassing judicial oversight or intervention. France's Social Affairs Minister Dominique Bertinotti reports that more than half of divorces in France are uncontested. She says that divorces could be handled by court clerks who are "highly trained in the law." Bertinotti reportedly posited that "simplification is a good thing."

"Uncontested"--what does that mean? Does it mean that a couple truly agrees upon the property divistion? Does it mean that each of the parties is truly aware of the nature and extent of marital property? Does it mean that each of the parties has been fully informed of his or her property rights, right to support, rights concerning child custody, parenting time and support? Does it mean that each of the parties is operating without undue coercion or duress and in the absence of domestic abuse? By domestic abuse, I do not mean to limit that term to physical abuse only.

Return to the Night Shift Grounds for Change in Custody

Defendant Father appealed a post-judgment modification of a 2011 child custody order. He claimed that Plaintiff Mother failed to establish that proper cause or a change in circumstances existed that would permit review of the original custody determination. In this case, the trial court found that the father’s change in his work schedule and his return to the late shift was a change in circumstances that was legally sufficient to permit review of the trial court’s prior custody order. The court modified the joint custody award and gave primary physical custody to Mom.

The trial court found that no established custodial environment existed with either parent (poor kids), thus Mom's burden of proof on her motion for modification was by a preponderance of the evidence.

The trial court held that the overall change in the children’s home environment because of his return to the midnight shift had a significant effect on the children’s well-being so that the mother could get over the hurdle imposed by Vodvarka v Grasmeyer.

Download Richer v Richer Docket  No. 316358 Unpublished (December 10, 2013)