Friday, August 8, 2014

Household Chores vs. "Forced Labor"

The Court of Appeals produced an opinion on August 4, 2014 reversing a man's prior convictions for forced labor, a federal crime (Here's a link to the statute.)  The opinion discussed how forced labor differs from the normal act of making children perform household chores.  In this case, Unites States v. Toviave, the defendant had brought four young relatives from Togo to live with him in Michigan.  He had them do various chores like laundry, cleaning, and cooking.  He also engaged in physical punishment, including hitting "the children with his hands, and with plunger sticks, ice scrapers, and broomsticks, often for minor oversights or violations of seemingly arbitrary rules."  Toviave also took care of all their material needs; he worked two jobs to provide for them, and they had adequate clothing, food, and shelter.  They had an English tutor and Toviave made sure they were receiving an education.  The children's teachers reported the suspected abuse, which led to an investigation and Toviave being charged with visa fraud, forced labor, and human trafficking.  He pled guilty to visa and mail fraud, and the trafficking charge was dropped.  After a trial, he was convicted of four counts of forced labor, one for each child.  

The appeals court disagreed with the trial court's conclusion, stating "An American parent has always had the right to make his child perform household chores. That right is codified in Michigan: “parents . . . are . . . entitled to the custody, control, services and earnings of [a] minor.” Mich. Comp. Laws § 722.2; see also Rohm v. Stroud, 194 N.W.2d 307, 308 (Mich. 1972). A person standing in loco parentis, or “in the place of a 
parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities” also has that right."  The court went on to state that this interpretation of the forced labor statute would make many things that parents do into federal crimes.

Wednesday, July 23, 2014

Corporal Punishment

A colleague of mine just pointed out this CNN article entitled "Spanking the Gray Matter Out of Our Kids," by Sarah Kovac.   It's worth a read.

Monday, June 30, 2014

Stepparent Adoption Just Became More Difficult in Michigan

On June 25, the Michigan Supreme Court handed down an opinion in the case of "In re AJR," where a minor child's new stepfather wanted to adopt the child and terminate the parental rights of the biological father.  In this case, according to the stepfather's petition,  the father had "ailed to provide support or comply with a support order and 
failed to visit or contact the adoptee for a period of 2 years or more," which is required by MCL 710.51(6)(a) and (b) in order for a stepparent adoption to go through.  Following a two-day evidentiary hearing, the lower granted the stepparent adoption and terminated the biological father's  parental rights pursuant to MCL 710.51(6).  The biological father appealed, and the Court of Appeals reversed the adoption, after looking at the statute, which refers to "the parent having legal custody of the child," which implies that the statute only applies to situations where one parent has legal custody and the other parent does not.  In the case "In re AJR," the parents had joint legal custody of the child under their 2009 divorce judgment.  

The Supreme Court of Michigan, in its June 25 opinion, affirmed the Court of Appeals' decision.  The Court stated  that "petitioners must follow the statutory procedures to obtain sole legal custody before seeking termination of the respondent-parent's parental rights under MCL 710.51(6)."  "Michigan has long recognized that the concepts of legal custody and physical custody are distinct and allocable between parents." The Court also discussed the distinction between legal custody and physical custody under Michigan law, noting that even if a parent has sole physical custody, they do not necessarily have sole legal custody, especially if an Order of Judgment states that the parents have joint legal custody.  This distinction was present even before the enactment of MCL 710.51(6). According to Michigan case law, "physical custody and legal custody were distinct concepts, allocable between parents, well before 1980." 

In this case, since the divorce judgment clearly awarded joint legal custody to respondent and the mother, she was not "the parent having legal custody" and thus, MCL 710.51(6) did not apply here. The court noted that petitioners were free to seek modification of the custody arrangement under MCL 722.27, meaning that's what the petitioners have to do in order to successfully get a stepparent adoption.  What this means for future stepparent adoption cases is that if the other parent has joint legal custody, the custody order needs to be changed to state that the custodial parent has full legal custody in order for the stepparent adoption to be started.  I guess this is good news for attorneys who charge by the hour, but not good news for people who are in a situation similar to the one of the mother and stepfather in this case, where the biological father had been basically absentee and the child looked to the stepfather as his father.

Monday, April 28, 2014

Grandparenting Time

It is very common for grandparents to have a substantial role in raising children, and often when parties get divorced or break up, grandparents get less time with the kids than they did before the split.  Grandparents do have legal options, but it can be very difficult to get a court order for grand parenting time.  In Porter v. Hill, the Court of Appeals ruled on June 11, 2013  that the parents of a deceased man did not have standing to seek a grandparenting time order becuase their son's parental rights had been terminated before he died.  On April 23, 2014, the Michigan Supreme Court reversed this decision, stating "The Court of Appeals erred in holding that the parents of a man whose parental rights to his minor children were involuntarily terminated before his death did not have standing to seek grandparenting time with the children under the Child Custody Act, MCL 722.21 et seq., when, under the circumstances of this case, a biological parent is encompassed by the term 'natural parent' in MCL 722.22(e) and (h), regardless of whether the biological parent’s parental rights have been terminated."  Here's a link to the Michigan Supreme Court's Order.

Thursday, March 6, 2014

International Moves With Kids - New U.S. Supreme Court

Yesterday, on March 5, 2014, the United States Supreme Court issued an opinion In Lozano v. Montoya Alvarez, Docket Number 12-820.  A copy of the opinion can be found here.  The parties in this case had a daughter together and lived together in the United Kingdom until November 2008, when the mom and child went to a women's shelter.  In July 2009, the mother (Alvarez) and the child moved to New York.  Lozano didn't find them until November 2010, and then he filed a Petition for Return of Child (to the UK) pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.  The Hague Convention provides that if such a petition is filed within one hear of the move, the court has to order the return of the child.  If it's been more than a year, the court is supposed to order the return of the child unless the child is "settled in its new environment."  Here, the court found that it had been more than a year and the child was settled.  Basically, end of story. 

Wednesday, February 26, 2014

Acknowledgment of Paternity and the Revocation of Paternity Act

In an opinion which can be found here, In the Matter of E.R. Moiles, the Court of Appeals agreed with the Mecosta County trial court which had  revoked an acknowledgement of paternity of a child.  In that case, the man who signed the affidavit of parentage (Moiles) had reason to know that he might not be the biological father, but signed the affidavit anyway.  The actual biological father (Weeks) requested that the court revoke the acknowledgment, stating that Moiles knew he might not be the biological father.  A paternity test found that Moiles was not the biological father, and the court revoked the acknowledgement and found paternity with the true biological father.  This was done under the Revocation of Paternity Act.  That Act has several requirements to revoke an acknowledgement of parentage; in this type of situation, it requires that the acknowledged father must have committed fraud or misrepresentation when he signed the acknowledgement.  MCL 722.1437(2).  The court decided that Mr. Moiles had done this because he had reason to believe he wasn't the biological father and signed the affidavit anyway.  The court of appeals affirmed the trial court's decision.

Recently, the case was appealed to the Michigan Supreme Court.  They issued an order in lieu of granting leave to appeal, remanding the case to the Mecosta County trial court.  Here's the text of the order:   The Court stated that the Court of Appeals was wrong when it stated that signing the affidavit of parentage equated to fraud or misrepresentation, stating that under the Acknowledgment of Parentage Act, "an acknowledging father is not required to attest that he is the biological father."  

I don't know where I stand on this yet; on one hand, the whole purpose of the affidavit is to establish who the father is, but no father can know with 100% certainty that he's the father of the child, right?  Obviously, there is greater doubt in some situations than in others, but there's a strong interest in keeping families stable.  It will be interesting to see how the cases regarding the Revocation of Paternity Act continue to play out.

Also, see my recently published article on the Revocation of Paternity Act in the February 2014 edition of the Michigan Bar Journal, Family Edition.  See it here.

Friday, January 31, 2014

Tax Season

Many divorced or separated parents have to decide who gets to claim the tax exemption for the child or children.  Sometimes it's easy: two kids, 50/50 custody split - they each get to claim one.  Or if there is only one child, the parents may alternate years claiming the exemption.  But it can get difficult where there's an odd number of children and/or the physical custody is not evenly split.  Often parties agree how they're going to arrange the exemptions as part of a final custody order or divorce judgment, but the first year filing separately can be difficult if the case is ongoing and an agreement hasn't been reached. It's also important to note that the Internal Revenue Code controls over and above a family court order.  The rule is that the parent who has the child 50% or more of the time (the custodial parent) is entitled to the exemption.  That is a hard and fast rule: the person with the majority of the parenting time is automatically entitled to the exemption. If the parties agree that the parent with less than 50% of the physical custody will claim the  exemption, the non-custodial parent still has to get an IRS Form 8332 signed by the custodial parent in order to be able to claim the exemption.

My own two cents: Often parents who are not in agreement about this will feel like it's a race to file their taxes first, but this is a bad idea.  If the parent who is not entitled to the exemption files first and claims that exemption, they're just creating more work for themselves because they'll have to file an amended return and possible return some money they've already received.  Also, newly divorced parents who have never filed taxes on their own before or who separated partly through the previous tax year should really see a CPA.  If you have a divorce attorney, seek a recommendation for a good CPA from him or her.  Ask your coworkers if they know a good CPA.  It might seem like a big expense, but it's almost always worth it to pay $100-$200 up front so you know you're following the law correctly and taking advantage of any credits to which you might be entitled.