UPDATES IN MICHIGAN FAMILY LAW

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 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.

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.

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

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

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.

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.

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.

Christmas and High Conflict Divorces | Putting the Children First

Bud Dale, Ph.D., J.D., of Topeka, Kansas shared a wonderful true story about high conflict divorce and Christmas on the American Bar Association's Family Law Listserv. I asked for permission to share this story with my readers last year. Dale's message bears repeating this year. It is my hope that family lawyers reading my blog will send this on to some of their clients and that parents reading it will benefit and will share with friends who may be in a similar situation. Bud's story involves Janey, a mother in a high conflict divorce, who attended a parent education class for high conflict families. Bud wrote:

"Janey attended as a result of a court order.  Despite the court order, her ex-spouse did not attend.  Janey stubbornly sat through the first 2 of 6 3-hour classes, before becoming engaged in what we (my colleague and I) were teaching.  She listened intently for the remaining sessions. She asked to come back to speak to the next class and has done so for each group of parents for almost 2+ years. To each group of parents, Janey tells the following story about Christmas:  

"Her three children brought her a gift and excitedly watched as she unwrapped it on Christmas morning.  Her children knew how much she loved her children and gave her a collage of pictures of themselves.  In each picture, the children were happily celebrating things and playing.  After Janey unwrapped it, she quickly placed it behind the couch, noting to her children that she did not want it to get broken amongst all of the other excitement.  She had immediately recognized her children and their joy in the pictures, but she did not recognize any of the events.  She did not recognize the birthday cake, the pile of leaves, or the place the children were sledding.  She instantly felt great sorrow at having missed so many joyous occasions with her children. 
 
"Janey tells that she went to view the picture again that night after the children had gone to bed.  The children's father was not in any of the pictures.  He was the photographer.  After a good, long cry, Janey talks of realizing that the children, who were almost always happy while with her, could also be happy while with their dad.  She found a prominent place to hang the photographs in her home - because it was the children's home and she sometimes needed the reminder that she could help the children be happy and their father could too. 
 
"At the end of each class, other parents comment about the difference it makes to hear from someone like Janey ... "

Bud also said:

"Janey is a real person really named Janey.  She is such a powerful force in our parent education group that I checked with her before sharing.  Linda Elrod of Washburn University School of Law and I sponsor a two-day workshop every year where we focus on how to help families in conflict in Kansas.  Janey presented at that workshop in 2010 and told this story - and many others. I get to hear them three times a year at our educational group.  She acknowledges that things aren't perfect, but her stories reflect a level of personal courage and credibility that I cannot match!  If I could, I'd make her stories go viral!  Isn't it good to hear when someone overcomes obstacles!  Gives me more hope, especially for the children."

I agree with Bud. I'd like to see this story make it around the globe and back again--several times. Do please feel free to send a link to this blog article as a holiday newsletter to your custody/divorce clients, or if you know a parent in a high-conflict situation . . . please send him or her a link to the article. 

An earlier post, How Divorced Parents can Help Children Survive the Holidays, may be read here.

Have a safe and sane holiday. Jeanne

How Divorced Parents can Help Children Survive the Holidays

It's time to run that Christmas post again. For those who may be new readers of this Blog, here are suggestions about how to make Christmas better for children. At the end is a link to Donna Ferber's Blog in which she suggests gifts that may help children through the divorce process.

Many children of divorce feel caught in the middle of their parent’s battles during the holiday season. Holidays should be a time for kids to experience the love, joy and magic. Instead, many children are confused, frustrated, sad and angry.

The stress divorce causes children during the holidays: The holiday season may be more difficult than usual for children of divorced or separated families. The excess chaos may cause children to feel anxious. Children may feel caught in the middle if their parents fight about who spends what time where. They may feel resentful when they must leave friends and family to stay with a non-custodial parent.

Being shuttled back and forth between houses may cause children to feel overwhelmed and exhausted. Children may wish they could "split themselves in half" so they can satisfy each parent.

Memories of holidays when the family was still together may make children sad. While spending time with one parent, a child may miss the other. Children may feel guilty at leaving the other parent alone on a holiday.

How divorced parents can help children survive the holidays

There are many things that both parents can do to make the holidays more enjoyable for their children and themselves.

• Have a set schedule, preferably one that is negotiated by the parents and put in the parenting time order or, if the parents cannot agree, one that is set by family court. Usually, parents should alternate holidays each year. That way, the child is not burdened by having to decide where he would like to spend his time and also minimize arguing between parents.
• If both parents live close to each other, there’s no reason why the child cannot enjoy the holiday with each parent. A good way to do that is to have the exchange at noon on Christmas Day. The child has “wake up and see what Santa brought” with one parent, and has a later Christmas with the other. In even-numbered years Mom might have the child from Christmas Eve through the morning of Christmas Day, with Dad picking the child up at noon. In odd-numbered years, that schedule would reverse.
• Parents should tell the child what the schedule is in advance so that he knows what to expect. Children whose parents are divorcing feel a lack of control. They feel as though they have no voice in whether or not their family stays together. Giving your child some control over how he spends his holiday time with you lessens the stress of feeling out of control. This can be especially important for older children. The time scheduled for the child with the non-custodial parent might be a time when they would rather be hanging out with friends. Parents should consider giving their child the option of bringing a friend along. In the alternative, parents might plan activities with friends
  during their holiday parenting time.
• Parents should focus on keeping the time together simple to avoid overwhelming the child.
  Allowing your child to have an active role in planning any holiday activities will alleviate some of those out of control feelings your child may have.
• Parents should be open to the child’s sadness or frustration and allow the child to vent. Let your child know that he is safe expressing his feelings, especially any sad or negative feelings.
• Let you child know that you understand and that his feelings are normal.
• It’s important to remain emotionally available and willingness to listen. Acknowledge and validate your child’s feelings to relieve a great amount of the sadness your child may be feeling.
• Encourage the child to embrace his expanded and/or extended family and the fact that he gets to celebrate the holidays twice.
• Neither parent should over-indulge the child with too many presents or candy; this is not healthy for
  anyone.
• Parents should not compete with each other over who gets the child a "better gift." If parents
  are able to communicate, they should plan gift-giving together to ensure even-handedness.
• Even though holidays are stressful, parents should put aside their differences and should not argue with each other in front of the child.

• Parents can share holiday traditions and lore to teach the child what the holiday is truly about. This
  will help the child to appreciate the experience. This may involve making new holiday traditions.
• Parents might plan fun outings during the holiday season. Some families center their traditions around gift-opening on Christmas Eve rather than Christmas Day. That makes sharing the
  holidays even easier.
• Parents should consider making new traditions such as caroling, ice skating, or catching a new movie in between the holidays to minimize the importance of a single big celebration.

• Parents should acknowledge that most children want and need contact with both of their parents. This is especially true during the holidays.
• Parents should allow the child to have phone or email contact with the other parent, especially on the holiday itself.

• Parents should focus on loving and celebrating the child during these special times.

Whatever parents do during the holidays, they should keep foremost in their minds that holidays are meant to be magical for children. They should be attuned to their child’s emotions during this sensitive time. The holidays are a good time for parents embroiled in separation disagreements to find a common ground, to put aside their differences, and allow their child to enjoy the magic of the season. Showing your child compassion for the sadness he is experiencing and teaching him coping strategies will not only help him through this first, post divorce holiday season but also long after the holidays pass.

See also: Holiday Gifts for Children of Recently Divorced Parents, blog post by Donna Ferber. Many of her suggestions are quite appropriate for children who are still caught up on the pre-decree stage, which can be very, very stressful. Donna says:

"When a couple goes through a divorce, they become the easiest people on your shopping list to buy for! When buying a gift for children of divorce, their unique needs may not be as clear as those of their parents. Certainly, they have adjustments of their own to make such as dealing with change and loss, acclimating to living in two homes and adjusting to visitation schedules. With a little forethought, you can give a gift that is fun and also supports the child’s transition to their new lifestyle." [Read more here.]

Looking for a Michigan Family Lawyer near you? Try this Directory.

Understanding Sensory Overload - Autism and Related Syndromes

An NPR article on November 15, 2012 offers information and resources to help parents and child custody lawyers assisting parents understand exactly how children affected by autism and related syndromes process (or fail to process) information and the world around them. First the author describes "normal:"

You walk into a room. There are people there, cars outside, dogs, phones ring, the radio is on, somebody coughs; it's the pleasant blur of a busy world, until something, someone catches your attention. Then you lean in, the other sounds fade back, and you focus. That's how listening works — for most of us.

Then the author shows in a most effective manner, how an autistic child might process what is happening in that room differently, and experiencing sensory overload, feel "mugged by sound." This condition is very familiar to people with Asperger's syndrome as well.

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

More Resources for Parents in High-Conflict Divorce & Custody Matters

More resources for parents going through high-conflict divorce or post-divorce child custody may be found here.

Personality Traits of Parents And Developmental Needs of Children in High-Conflict Families, by Philip M. Stahl, Ph.D., may be read here http://www.parentingafterdivorce.com/articles/highconflict.html

And see "Help! I'm Divorcing a Narcissist," by Karyl McBride, Ph.D., in Pyschology Today, February 7, 2011

Oregon Enacts Law | Fines for Making False Report of Child Abuse

Here's a great idea! After seeing three false reports of child abuse within three weeks in the middle of high-conflict divorce and custody cases . . . I hear that Oregon has finally come up with a solution.

The Oregon Legislature has passed legislation making malicious filing of false reports of child abuse in the midst of divorce, custody fight, or other domestic conflict a Class A violation carrying a $750 fine.

These false allegations can not only make the family law case much more difficult and lead to terrible injustice, they can ruin parent-child relationships and change lives forever. I find myself hoping more states will enact such laws and wondering whether the law will make a difference. Here's the Oregon statute:

Parallel Parenting: When You and Your Ex Can’t Play Nice

Donna Ferber, Framingham, CT psychotherapist, is today's guest author. This article emphasizes how  mothers and fathers in high-conflict divorce situations can minimize some of that conflict for the sake of their children's well-being.

The continued post- divorce acrimony that plays out in the arena of parenting is the probably the most aggravating and stressful part of divorce for all involved. Parents struggle with a sense of wanting to make this transition easy for their children but when left over marital issues continue to play out in the co parenting arena, the adults often throw up their hands in frustration. The continued conflict is worrisome as it is the fighting, not marital status, that hurts the kids.

High-conflict Divorce & Co-Parenting Issues

High-conflict divorce exposes both parents and also their children to a lot of stress. Little ones who were already potty-trained may suffer lapses. Youngsters can be clingy, whiny and may go back to thumb-sucking or insist upon having a bottle for comfort. Kids who were previously OK sleeping alone may seek comfort in Mommy's bed or Daddy's bed at night. Kids in school can suffer a loss in performance. Anybody who has been through it or watched another go through it knows that conflict and stress can negatively affect everybody. What is a parent to do to help kids through this stress?

Sometimes parents feel like they will never be able to talk to the other parent again, and often a “no contact rule” seems like the only answer. But if parents aren't communicating about the kids--health issues, school issues, scheduling arrangements such as extra-curricular activities or doctor appointments--then no effective co-parenting is going to happen.

The Uncooperative Co-Parent

Today's guest author is Donna Ferber, an award-winning writer and psychotherapist from Farmington, CT.

When going through a divorce, keeping your children’s well-being in the forefront of your mind is critical. Whether the children ultimately have an experience that is traumatic or manageable is a direct result of how well their parents’ behave. Some parents even stay together “for the sake of their children” but their behavior is so appalling that the kids beg their parents to split up. Whether you stay together or not, your children learn from and emulate your behavior. You are role models for healthy relationships.

How Narcissists/Batterers Abuse Children During Divorce

A client sent me a link to this article about abuse of children during divorce proceedings by a narcissistic parent. Here's a preview:

The emotional abuse by a narcissist is pervasive and insidious. It impacts not only the narcissist’s spouse but his or her children as well. Once divorce proceedings begin, the narcissist’s abuse will likely escalate. Narcissists will use any means possible to gain control of the situation or to make themselves look better. Children become perfect pawns for narcissistic parents to use against their spouses. Identifying how narcissistic parents abuse their children is the first step to devising strategies to minimize abuse and help children cope.  Read more here on Parenting News Network.com

Christmas and High Conflict Divorces | Putting the Children First

Bud Dale, Ph.D., J.D., of Topeka, Kansas shared a wonderful true story about high conflict divorce and Christmas on the American Bar Association's Family Law Listserv. I asked for permission to share this story with my readers. It is my hope that family lawyers reading my blog will send this on to some of their clients and that parents reading it will benefit and will share with friends who may be in a similar situation. Bud's story involves Janey, a mother in a high conflict divorce, who attended a parent education class for high conflict families. Bud wrote:

"Janey attended as a result of a court order.  Despite the court order, her ex-spouse did not attend.  Janey stubbornly sat through the first 2 of 6 3-hour classes, before becoming engaged in what we (my colleague and I) were teaching.  She listened intently for the remaining sessions. She asked to come back to speak to the next class and has done so for each group of parents for almost 2+ years. To each group of parents, Janey tells the following story about Christmas:  

How Divorced Parents can Help Children Survive the Holidays

It's time to run that Christmas post again. For those who may be new readers of this Blog, here are suggestions about how to make Christmas better for children. At the end is a link to Donna Ferber's Blog in which she suggests gifts that may help children through the divorce process.

Many children of divorce feel caught in the middle of their parent’s battles during the holiday season. Holidays should be a time for kids to experience the love, joy and magic. Instead, many children are confused, frustrated, sad and angry.

The stress divorce causes children during the holidays: The holiday season may be more difficult than usual for children of divorced or separated families. The excess chaos may cause children to feel anxious. Children may feel caught in the middle if their parents fight about who spends what time where. They may feel resentful when they must leave friends and family to stay with a non-custodial parent.

Deployments | May Service Member Leave Children with Step-parent?

        I've had several cases this year involving deployed parents who have sought to maintain family continuity for their children during deployments. Spiteful ex-spouses in each case have sought to limit contact between the children and their step-parent and/or the children and the service member's parents.

        Frequently, the inability to be with a step-parent or grandparent will deprive the children of contact with the deployed parent through Skype or even telephone. My patience wears thin when I see mean-spirited parents (usually mothers) refuse to permit the children to keep building memories of the absent parent. In 2007, however, a Colorado appellate court held that a deployed parent had the right to leave the children with his new spouse during his deployment.  According to the court, this isn't much different from a custodial parent leaving the children with a daycare provider, a friend, etc. So long as both parents are fit, the court ruled, each can make day-to-day decisions during his or her allotted parenting time. Wouldn't it be great if other service members in other states could get similar relief from their family courts!

Zero to Three: Parenting Issues and Parenting Plans for Young Children

Richard Gould-Saltman, Esq. esteemed family lawyer from Los Angeles, CA will moderate and
Aaron Robb, M.Ed., NCC, LPC-S, Professional Counselor and Doctoral candidate at University of Texas at Arlington’s School of Social Work in Keller, TX will participate in an online CLE about devising appropriate parenting time plans for very young children. This CLE is sponsored by the American Bar Association Section of Family Law and the ABA Center for Continuing Legal Education.

Program description:     Infants and very young children pose challenges in the best of circumstances. Structuring parenting plans that meet children's needs for security and consistency in order to foster healthy long-term relationships with both parents provides a critical foundation for young children and parents who often struggle with what is 'good' for their babies.

Daddy, Read for me

Connecting—perhaps for the first time—with their children, eight men at the Eric M. Taylor Center, one of nine jails on Rikers Island, completed a five-week literacy course this fall called "Daddy and Me." They learned to read with expression, to fine-tune their voice to the story and then, satisfied with their story-reading skills, they recorded themselves reading children’s books for their sons and daughters at home. Although such programs have been tried with female inmates in prisons across the country since at least 1996, this was the first time such a program had been tried at Rikers.

After practicing the stories, the men recorded them onto DVDs. Each DVD has a photo image of Daddy burned into the top, together with the name of the book. What a cool thing. What a great way to help a man's young child or children keep Daddy's memory alive.

Is re-marriage of a parent grounds to change custody?

In a recent unpublished case, Michigan's court of appeals ("COA") held that the marriage of the parties' custodial parent to a man with a past criminal record was not a proper cause or a change in circumstances that would give the father a right to a change in custody of the parties' two minor children.

The parties have two children. The parties, who were never married, were awarded joint legal and joint physical custody in 2001. In 2007, after a hearing, the mother was awarded primary physical custody, but the parents continued to share joint legal custody. Apparently in that hearing, the father claimed that the criminal history of Mom's boyfriend warranted a change in custody and he tried to prove the boyfriend was a danger to the children. 

Boston Globe takes stand against presumption of joint custody

While supporting the goal of giving fathers a large presence in their children’s lives, the Boston Globe took exception Massachusetts House Bill 1400, which promotes the concept of “shared parenting.’’ The Glove argued that the bill, pending in the MA Joint Committee on the Judiciary, is “too broad an approach to a challenging issue that demands nuanced, case-by-case decisions based on the best interests of the child,” and rejected the bill as a solution to the argument that fathers aren’t getting fair court hearings.

Like other shared parenting legislation pending in other states, the MA proposed legislation would create a legal presumption for joint custody unless there is evidence of child abuse or neglect. The MA legislation would not eliminate a judge’s right to award sole custody to one parent, however it would require judges to give written justification to support decisions rejecting an automatic grant of joint custody. 

A new day coming? Lesbian has standing to seek co-parenting in Wayne County

Wayne County Circuit Judge Kathleen McCarthy ruled last Friday--a ruling that could have broad and precedent-setting legal consequences--that a Downriver woman has standing in her suit to get joint custody of three children she says she raised with the biological mother. The biological mother's attorney says he will ask for a stay and will appeal. If the decision stands up on appeal, it would be the first time gays, lesbians and unmarried heterosexuals in Michigan would have legal standing to obtain joint custody.

Dana Nessel, Renee Harmon's lawyer, said Friday that "This is a historic moment . . . Judge McCarthy's ruling really ushers us into the 21st Century."

Unaccompanied minor flights | Tech tools for parents

Many family lawyers assist their clients in learning more about long distance parents and about how major airlines unaccompanied minor programs work. While researching the David and Sean Goldman case, I learned about a very helpful Internet tool that allows parents on both ends of the flight to keep track of where their children are in the journey. See Flight Aware at http://flightaware.com/live/flight/XFL5

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.

Significant increase in unwed births reported by CDC

An alarming statistic was revealed on May 15, 2009. According to the Center for Disease Control, about 40% of all babies born alive in the United States are born to unmarried mothers.

The CDC report highlights are these:

• Childbearing by unmarried women has resumed a steep climb since 2002.
• Births to unmarried women totaled 1,714,643 in 2007, 26% more than in 2002. Nearly 4 in 10 U.S. births were to unmarried women in 2007.
• Birth rates have risen considerably for unmarried women in their twenties and over, while declining or changing little for unmarried teenagers.
• Non-marital birth rates are highest for Hispanic women followed by black women. Rates for non-Hispanic white and Asian or Pacific Islander women are much lower.
• Most births to teenagers (86% in 2007) are non-marital, but 60% of births to women 20–24 and nearly one-third of births to women 25–29 were non-marital in 2007.
• Teenagers accounted for just 23% of non-marital births in 2007, down steeply from 50% in 1970. [This is significant because it means that the initiatives to reduce teen pregnancy are really working!]

How divorced parents can help children survive the holidays

Many children of divorce feel caught in the middle of their parent’s battles during the holiday season. Holidays should be a time for kids to experience the love, joy and magic. Instead, many children are confused, frustrated, sad and angry.

The stress divorce causes children during the holidays

The holiday season may be more difficult than usual for children of divorced or separated families.

• The excess chaos may cause children to feel anxious.
• Children may feel caught in the middle if their parents fight about who spends what time where.
• They may feel resentful when they must leave friends and family to stay with a non-custodial parent.

Parenting Plan Calculators, Planners, and Trackers

Family lawyers are often challenged to help clients work out parenting-time plans that allocate time with the child (or children) between the parents.  Ten years ago, Stephen J. Harhai described the problem like this: "The fundamental problem in working out time-sharing issues is that it is hard to visualize or calculate the effect of a given plan without a lot of grunt work. We have spent untold hours marking calendars, counting days, writing explanations, and generally driving ourselves crazy getting a handle on complicated time-sharing arrangements." ["Tools of the Trade" column in the Family Advocate (Vol. 20, No. 3)]

Unaccompanied minor rules: Children traveling alone

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

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

Parenting time | parent with same-sex partner

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

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

Parental Kidnapping | Prevention and Response

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

Lap babies | Safety for infants on airliners

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

New tool to help children cope with high-conflict divorce

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

Mandatory joint custody? Here we go again . . .

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

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

From Scott Bassett: Family Law Appellate Lawyer:

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

Home Alone: Part III

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

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

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

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

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

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

    You can read Dumm v Brodbeck here.

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

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

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

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

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

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

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

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

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

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

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

See also links below to posts in this frequently accesses series: Home Alone

See also links below to earlier posts: Home Alone Parts I, II, III, IV and V.

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 October 12, 2007

Home Alone Part VI Assessing Readiness July 20, 2011

Home Alone Part VII | Leave your children home alone while you vacation? November 7, 2017

Need help with a custody or parenting time modification motion?

e: Part VII

Are you entitled to a full trial after a referee decision?

Litigants often ask what their rights are to a judicial review of a Friend of the Court referee's decision and order after a referee hearing.  In a recent case, the Court of Appeals approved the trial court's refusal to conduct a whole new trial.

The father appealed the trial court's denial of his motion to modify custody. He challenged the trial court's adoption of the Friend of the Court's recommendation and findings of fact  after his timely filed objections. He also challenged the trial court's refusal to conduct an evidentiary hearing.

The court of appeals addresses the application of MCR 2.315 and its impact on a litigant's right to a full evidentiary hearing. The COA also addresses MCL 552.507, particularly the 2004 amendment that allows the trial court to consider an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g) as long as the trial court also allows a party to present live evidence.

Litigants need to be aware that they will likely not get a full trial by the judge and that reasonable restrictions upon evidence may be imposed.

Decided on July 19, 2007, Dumm v Brodbeck, Docket No. 274600 is unpublished.

Do you need help with a divorce or custody case? Find a Michigan Family Lawyer near you.

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

 

Transportation issues: Children flying alone

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

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

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

Do you need help with a divorce or custody case? Find a Michigan Family Lawyer near you.

 

Technorati tags: parenting time, visitation, unaccompanied minor, airlines

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

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

 

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

 

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

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

 

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

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

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

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

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

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

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

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

Need help with a post-judgment relocation motion?

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.

Do you need help with a child custody case? Find a Michigan Family Lawyer near you.

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

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

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

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

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

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

The 100-Mile Rule, the Acknowledgment of Parentage Act, and the Parental Kidnapping Statute: Are Unmarried Fathers at a Disadvantage?

Many of you know that I've always had a special interest in paternity or parentage issues. Research shows that children need a good relationship with both parents in order to grow up as healthy, productive adults. Unfortunately, that doesn't always happen. Yes, high-conflict issues sometimes occur in divorces. But I most frequently see disruption of normal parent-child relationships within the context of paternity / parentage cases.

There are some ways in which the statutes governing parentage and custody issues act to disadvantage unmarried fathers who want to protect and foster their parent-child relationships.

The 100-Mile Rule

Section 11 of the Child Custody Act, MCL 722.31, called "The 100-Mile Rule, deals with the legal residence of a child. Subsection (1) states that a child has a legal residence with each parent and it says that a parent cannot move a child’s legal residence more than 100 miles from the child’s legal residence at the time a custody action is filed.

There are several instances in which the 100-mile rule does not apply:

Subsection (2) states: This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.

Subsection (3) states: This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart.

How Unmarried Dads are at a Disadvantage: The Acknowledgment of Parentage Act

What about cases where the parents are not married? If a father has not signed an acknowledgment of parentage, he has no legal right to custody until he’s been adjudicated as the father. Therefore, if Mom wants to do so, she can move anywhere – across the country even – disrupting the father-child relationship. To learn more about how a biological father can protect himself from this type of interference with the father-child relationship, see Jeanne Hannah's website.

Do you need help with a paternity or child support case? Find a Michigan Family Lawyer near you.