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Jayne E. Mackowiak, PC

I am a lawyer in Escanaba, MI. I presently represent the non-custodial mother. The father was just deployed 3 weeks ago. We filed a motion for extended parenting time before he was deployed. The father through his attorney is asking for a STAY and is also sighting SSRL and MCL722.27 stating that the court cannot change placement of the child.

We are not asking for change of custody....only extended parenting time while father is gone.

Is there case law to support my position?

Please advise. Thank you.

Jayne Mackowiak
100 South 8th Street
Escanaba, MI 49828

Jeanne M Hannah

Ms. Mackowiak:

I suggest that you carefully read the Holmes case and the recent amendment to MCL 722.27.

That amendment says that:

"If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination."

Thus, the court may enter a temporary custody order (or a modified parenting time order) if there is clear and convincing evidence that it is in the best interest of the child.

Although you do not state this, I assume that the father is attempting to leave the child with a grandparent or a step parent. I would cite Troxel v Granville and Helzel v Heltzel, 248 Mich App 1 (2001) for the proposition that a fit parent has the right to extended parenting time during this deployment rather than to have placement of the child with a third party. For more references regarding the rights of third parties, see section 12.22 of Michigan Family Law (Hon. Marilyn Kelly et al eds, ICLE 6th ed 2006)

In particular, note in that section, the role of the parental presumption and the burden of proof issues when the other contestant is, in reality, a third party.

Megan Pagan

I am a military wife. My husband has custody of his children who ( obviously ) live with us. If he gets deployed, will I be able to keep the children here with me? Does we need to draw up a certain type of legal document for me to do so. Also note that the mother has not seen her children for four months and in those past four months she has only called twice.
Please let me know.

Thank you,

Mrs. Pagan

Jeanne M. Hannah

Mrs. Pagan,

You should review the cases and law I cited in this post so that you and your husband fully understand the importance of the recent amendment to MCL 722.27. This law doesn't allow a court to enter an order modifying or amending a previous custody order (the one that placed your husband's children with you, for example) after your husband is deployed unless there is clear and convincing evidence that it would be in the children's best interests to do so. Since the mother hasn't seen the children in four months, it would be difficult for her to prove her case by clear and convincing evidence.

Your husband needs to do two things to protect the children from a change in their custody in the event of his deployment. First, he needs to postpone notification of the deployment as long as possible to avoid a motion being filed prior to his departure, which allows the statute to protect the children's placement. Second, he needs to execute a letter of intent nominating you as the children's guardian during his deployment (See my website www.traversecityfamilylaw.com/Articles2.htm in the Military Family section for a sample letter of intent.)

Susan

I currently reside in NC and have joint legal and physical custody of my daughter while her father retained primary physical custody. The court order was issued in Michigan as that is where my daughter resided with her father when the motion was filed. My daughter is currently staying with me for the summer and her father entered into a 4 year active duty military contract. He was transfered to NC (the same town where my husband and I reside)and will be deploying for a year to Iraq. We had a verbal agreement that our daughter would stay with me during his deployment and attend school with her brothers as his wife had opted to stay in Michigan until he returns from deployment. Today I received a phone call from him stating that his wife does not want both of them gone for a year and that my daughter should return to Michigan for the school year. While I understand their difficult situation it seems unfair that I should be left out of the decision when I have joint legal custody. He had previously stated that if my daughter was not with me then she should be with him (not with grandparents, etc). I feel that if she is not going to reside with him then she should be with me and her brothers until he returns from deployment. He has already moved to NC and we have joint legal custody so what are my options at this point?

Jeanne M Hannah

You have an absolute right to custody of your daughter while your ex-husband is deployed to Iraq. What your ex-husband and his wife propose is nothing more than "third-party custody." Since the decision of the U.S. Supreme Court in Troxel v Granville, 530 U.S. 57 (2000) and in Michigan of DeRose v DeRose, 469 Mich 430 (2003), it's more clear than ever that for a third party to have custody of a child, the third party (this would be the step-parent in your case) must show the parent unfit. Said another way, for your ex-husband lawfully to deprive you of custody of your child during his
deployment, he would have to go to court and prove that you are an unfit mother.

Obviously, he doesn't believe that you are an unfit mother or he would have been in court opposing your summer parenting time.

The quickest strategy, and least expensive, is for you to tell him what I've told you above. Tell him that it will be expensive to institute legal process, but that you're willing to go there if he wants to do so. He cannot prevail.

You can show him the Blog article you were reading that describes Michigan's statute that protects his custodial rights upon his return from Iraq. He's been listening to too many deployment horror stories. The two of you can get together and fashion a workable Family Plan that provides for your child to be returned to him upon his return from Iraq.

Please contact me if you have any problems with this and we'll talk about whether I can personally help you or whether I need to refer you to one of my esteemed colleagues.

Best to you. Jeanne Hannah

Tara

I have full physical custody of my daughter and we have joint legal custody. When the divorce was granted, my ex was physically in Colorado as that was where he was stationed at. He is active service member. She was actually born in Colorado also. He is not close with my daughter at all or even really practice his right to the parenting time. He has never lived with her in her life. My daughter and I moved from Colorado back in March of 2006 when she was 3 months old. He saw her once in Michigan after we moved from Colorado. He saw her once in Colorado when his mom took her to Colorado with her. He has not seen her once since the divorce was granted October of last year.

My daughter and I are trying to move to Florida from Michigan and I have filed motion to change the domicile.
Problem is that he is currently deployed to Afghanistan and we have not been able to serve him yet although we tried through Military Police and Rear Detachment...so we do not have proof of service at this point. We are trying for temporary change of domicile as he comes back in about 5-6 months.
I do not have any family members in Michigan who can help me with her other than my ex's family. My financial situation is not that good at this point and there is a very high possibility of me losing job soon. I am engaged to someone from Florida and there is better job possibilities in Florida.
It is obvious that "there is clear and convincing evidence that it is in the best interest of the child" in us moving to Florida than staying in Michigan as it will benefit both me and my daughter emotionally and financially. Also us moving does not interrupt the parenting time either. The current parenting time in ther judgment order is liberal.
Would it still be possible for the court to grant the temporary order when we are unable to serve him based on the fact that there is the evidence it is in the best interest of the child?

Thank you.

Tara

I posted a question over the weekend regarding my ex being deployed and proof of service while filing a motion for change of domicile but do not see the post on here.
Is there a reason why it's not being approved...? :(

Thank you.

Jeanne M Hannah

Tara, you haven't given me enough details to work with. It appears that the judgment of divorce may have been granted in Michigan, but it's not all that clear. So I am not sure what you are asking. Are you asking if a Michigan court needs to enter an order for relocation?

Clearly, you have several problems. Service of process. How can you get personal service over someone who is a service member in Afghanistan?

The right to relief from civil process. A service member has the right to seek an adjournment from any action in a state court if he or she is on active duty. See the Judge's Guide to the Service Members Civil Relief Act. http://tinyurl.com/yc7jc9m This means that you might not be able to get a court order to move until your child's father returns from Afghanistan.

In addition, your post raises two other issues. Why would you put your life ahead of that of someone serving our country? What would a "Dear John" letter mean to your child's father? Would his emotional distress at receiving such a letter affect his performance and endanger him? Endanger members of his service group? Think about that.

Also, in the five years I have been blogging, I have never received, until yours today, an email asking me why I had not posted a comment and responded to it. What is it about you that makes you think you are so special that you deserve free legal advice? Think about that.

Think, too, about the fact that this is not just "your daughter" (as in your repeated "my daughter" above). Your child has two parents. I suggest you may wish to consult a counselor about the effects on a small child when one parent deprives the child of access to the other parent.

Tara

First of all, I am sorry if you thought I was talking about your response. I didn't mean about your free legal advice. I was talking about my comment that I posted as a question.
Secondly, you mentioned "dear john" letter. We were married, divorced because he cheated on me when he came back from Iraq. I did not cheat or try to do anything. I waited while he was in Iraq, saved money, building a family. When he came back, he went out partying and cheated on me while I was pregnant with his baby. He then took my money so he could go out. He didn't give any child support, including diaper money either. He took money I had for the baby and went out for new years eve party, when the little baby was being discharged from NICU. He never watched her either. Therefore, I couldn't go to work or anything either to have money for the baby. I am not trying to deprive MY daughter the access to the other parent. As a result of his own choice, she doesn't know about him other than his name. He was just on vacation from Afghanistan and he or his new wife didn't want to come to see her because they wanted to go on vacation to Arizona.
I appreciate your free legal advice. But you should also watch what you have to say when you do not know all the details behind.

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