Tuesday, December 10, 2013

The Pundit - Friend of the Court Bureau Newsletter


Many of these contain very useful information and resources regarding Friend of the Court mediation, paternity actions, how the Affordable Care Act affects child support and child support collection, etc.  Here's a link to the most recent, December 2013 edition: http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Documents/Pundits/2013-12-Pundit.pdf


Here's a link to an announcement re: my appointment to the State Bar Committee: http://www.womenlawyers.org/mid-michigan/blog

Revocation of Paternity Act

I'm working on the final revisions to an article I'm writing for the Libraries, Legal Research, and Legal Publications Committee of the State Bar of Michigan about the Revocation of Paternity Act, which was passed in Michigan last year.  I'll provide a synopsis here, but look for it in the family law edition of the Michigan Bar Journal in February 2014.

Thursday, October 31, 2013

Another case from the Michigan Court of Appeals has come down, telling us that a non-biological parent from a same-sex relationship is not a "parent" under Michigan law, and so she was not entitled to custody and parenting time of the child.   The court stated that the parent did not have standing because she wasn't related to the child by blood, and the court refused to expand the equitable parent doctrine.  The court cited the Van case, which limits the equitable parent doctrine to married couples, and stated that because the same-sex parents were not married under Michigan law, it didn't apply.  Here's a link to the case: http://www.michbar.org/opinions/appeals/2013/101713/55613.pdf 

Wednesday, October 9, 2013

Joint Physical Custody - Traditional views vs.reality

I was just told about an article written by Dr. Linda Nielsen and published in the Nebraska Lawyer addressing the ten biggest reasons cited against joint physical custody.  Dr. Nielsen also just published a longer journal article on this topic which was published in January of this year in the American Journal of Family Law.  A copy of the full journal article can be found at http://www.acfc.org/acfc/assets/documents/research_pdf's/ajfl_linda_SParticle_Jan_2013.pdf

The research pointed out by Dr. Nielsen can be summarized in just a few words: having lots of time with both parents is good for the kids.  There aren't very many situations where parenting time for the father should be severely limited because of age, the prior family situation, or anything else.  Good relationships are developed by spending time together.  Sure, parents are going to have communication breakdowns, but when parents are willing to work together to communicate, they can share joint custody and make it work for everyone.  And I think everyone can look at their own families and people they know, and conclude that where divorced parents have roughly equal parenting time, the kids are generally doing all right.  And there's absolutely been movement toward courts favoring joint custody arrangements all around the country.

Here's a link to Michigan House Bill 4120 (2013), which proposes the following language: IN A CUSTODY OR PARENTING TIME DISPUTE BETWEEN PARENTS, THE COURT SHALL ORDER JOINT CUSTODY UNLESS THE COURT DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT A PARENT IS UNFIT, UNWILLING, OR UNABLE TO CARE FOR THE CHILD.  Joint custody under the proposed law means that the child "resides alternately for specific and substantially equal periods of time with each parent.  This would, in essence, force judges to start with roughly 50/50 arrangements, and the parent who is opposed would have to prove to the court, with a considerable burden of proof, that the other parent is basically a deadbeat.  It should be noted that this bill has no support from the Michigan State Bar, the Family Law Section, or the Domestic Violence Committee Section of the state bar. The judges and family law attorneys I've spoken to do not support this. 

The issue is, in situations where both parents have lots of time with the kids, often it's because both parents want lots of time with the kids and are willing to put in the work and really be present with the kids.  There are still many families where one parent is not as involved with the kids because of forces beyond their control or because that's just the way that it works best for the family.  So then what's best for the kids?  Forcing one parent who has not done much child care to do half of the child care?  That might be the best thing sometimes, but other times it would be disastrous. Something to think about.

Thursday, October 3, 2013

Alimony Laws

I haven't heard anything about any suggested changes in Michigan's law regarding spousal support, but changes are happening in several other states.  Here's a great segment from NPR's Here and Now from yesterday, October 2, 2013: http://hereandnow.wbur.org/2013/10/02/alimony-under-review .  The speaker said that figures show only about 15% of divorces include alimony to a spouse.  The reforms that are happening right now are focused on making the reasons for the spousal support clear and scaling back on awards of permanent spousal support.

Tuesday, October 1, 2013

Separate Maintenance

Curious about the difference between separate maintenance and divorce?  There really isn't much difference.  Michigan Legal Aid has a nice succinct explanation: http://www.michiganlegalaid.org/library_client/resource.2006-03-07.5354082527

Monday, September 23, 2013

"Servicemember Family Protection Act", or house bill H.R. 4201 will now migrate through the Senate and House for vote

Custody issues for those serving in the military has always been an interesting topic for me.  A recent Martindale post discussed the problem well: "[U]nder family law, the best interests of the child controls whether a parent will have custody. In addition, the mother or father cannot be said to be acting in the best interests of a child when he or she is unavailable to take care of his or her child.  So, as it sits now, when a parent is vacant for longer than a certain amount of time, his or her custodial rights can be removed.  Moreover, he or she cannot allocate these custodial rights to the child's grandparents or other family."  Here's a link to the full post: http://community.martindale.com/legal-groups/practice_area1/family_law_group/f/4067/p/33576/47914.aspx#47914

Wednesday, September 18, 2013

Here's a really interesting opinion article from today's Detroit Free Press, written by Brian Dickerson: http://www.freep.com/article/20130918/OPINION/309180020/gay-marriage-same-sex-adoption-Michigan-legislature-adoption-Brian-Dickerson  It's about two bills that have been proposed in Michigan that would, according to Dickerson, "license faith-based adoption agencies to discriminate against gays seeking to adopt hard-to-place foster children."  Here's a long quote:

Jeanne Howard, a former member of the state of Illinois’ adoption advisory board and codirector of the Center for Adoption Studies at Illinois State University, says discouraging gays who seek to adopt or become foster parents would strand many hard-to-place children with no families at all.
“I’m not approaching this from an equal protection or parental advocacy perspective. I’m approaching it from the perspective of what children need,” Howard told me. “I know opponents of gay adoption think they’re protecting kids by not allowing them to be raised in such a family. But a lot of these kids have no family.”
For three decades, Howard notes, studies comparing children raised by straight parents with those raised by gay or lesbian parents have discovered no differences in psychological adjustment, gender identification, academic achievement or self-esteem. Other research suggests that gay and lesbian parents are disproportionately open to adopting the older and special-needs children who are hardest to place.
“We want to have every break go in favor of the kids who need help,” Howard said. “When you create obstacles that limit the supply of adoptive parents,” Howard said, “you are abandoning some of the most fragile children in Michigan to the vagaries of an overburdened foster care system.”

Wednesday, September 11, 2013


I know this is old news now, but the effects of the United States Supreme Court striking down DOMA are still being sorted out all over the legal community.  Of course this is a big deal for family lawyers; it potentially raises a set of new issues and highlights existing issues about getting a divorce for same sex couples who don't meet jurisdictional requirements to get divorced in the state where they were married, but whose marriage is not recognized in the state where they currently reside.  More on that later.

Here's a great article about the DOMA decision from the New York Times in June, written by John Schwartz: http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme-court-decision-on-doma.html

Monday, September 9, 2013

My associate, Andy Rodenhouse, has been in the news over the weekend for a Calhoun County appeal he's been working on.  The Calhoun County Chief Circuit Court Judge ordered a new trial after overturning Mr. Ackley's criminal conviction.  This isn't family law related, but I had to share:



Thursday, September 5, 2013

The Wall Street Journal published an article in today's paper about a study conducted by researchers at the University of Pittsburgh and the University of Michigan which concluded that yelling at children can be just as damaging as hitting them.   Here's the link: http://online.wsj.com/article/SB10001424127887323623304579055302147114522.html

The study, published on Child Development's website (here's a link to their website: http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1467-8624 ) followed 976 two-parent families with children in their early teens, and found that children of parents used more harsh verbal discipline were more likely to experience aggression, behavior problems and symptoms of depression.  The study found that increases in behavior problems in families using shouting as a punishment were very similar to families where physical punishment was used.  Dr. Ming-Te Want, who co-authored the study, stated that "adolescence is a very sensitive period when [kids] are trying to develop their self-identities.  When you yell, it hurts their self image.  It makes them feel thy are not capable, that they are worthless and are useless."

This is just another reminder that we need to treat our kids like the people that they are.  If it's not okay to yell at or hit your employees or cashier, it's not okay to do it to your child.  There are many more constructive ways to teach, and we have to constantly remind ourselves that we're setting an example for how our children are going to behave and how they're going to raise their children.

Tuesday, August 13, 2013

Basic Divorce Information

The Basics: A person wanting to end his or her marriage must have the circuit court in the county where they reside enter an order ending the marriage. To grant the divorce, the court must find that there has been a breakdown in the marriage relationship to the extent that the parties cannot live together as husband and wife. At least one of the parties must appear in court to show that this breakdown really does exist. In Michigan, a divorce can be granted even if one of the parties does not want the divorce. A divorce ends the legal relationship between a husband and wife. Where there are children, the divorce does not end the family relationship, even though the relationship will change.  Parents need to continue to work together and communicate to figure out how family life will work while the divorce is pending and after the divorce is final.  Most of the details will have to be worked out before the court will issue a judgment of divorce. These details may include:

  • Who will make decisions, provide daily guidance and take care of the children? (Custody) 
  • What contact will children have with a parent they don't live with? (Parenting time) 
  • How should the property gathered during the marriage be divided? (Property settlement) 
  • How will financial responsibilities for the children be divided? (Child support) 
  • What amount, if any, should one party contribute towards the support of the other, either permanently or temporarily? (Spousal support/alimony) 
  • How will the children's medical, dental and other health care expenses be paid? (Health care coverage) 
  • Will the wife take back her maiden name? (Restoration of maiden name) 
  • Will children be allowed to move from the State of Michigan? (Domicile) 

The Process: The first step in the process is filing a complaint.  There are specific rules about what the complaint needs to contain and how it must be served to the other party.  The other party will most likely need to file an answer, and a temporary order should be obtained early on to set ground rules while the divorce is pending.  The temporary order will often set out a parenting time schedule and resolve immediate issues like who will stay in the marital home, and whether either party should pay child support or spousal support. The parties can agree to a temporary order, or they can ask the court to decide after a hearing. Often this hearing will be conducted by a referee, who makes a recommendation to the circuit court judge. If a party is unhappy with a referee's recommendation, there are options for objecting to the recommendation, but often circuit court judges will give great deference to a referee's decision. Sometimes the judge will ask the Friend of the Court to do an investigation and give the court a recommendation, and the court will often follow that recommendation. The court will set dates and deadlines for different aspects of the case, like a deadline for discovery (see below), a date by which mediation must be completed, and a date by which a final order should be entered.

Resolving the Case: Divorce issues may be resolved by the parties reaching an agreement by themselves or through their attorneys.  Courts also encourage and often require mediation.  Free mediation is available through the Friend of the Court where the parties can show there is a need, or a private mediator will be used.  Usually the court will schedule a pretrial or settlement conference before there is a trial in the hopes of settling the issues; settlement is usually encouraged because parties, especially when they share children, need to be able to deal with issues outside of the courtroom in "real life."  But if the parties can't agree on all the issues, the court will hold an "evidentiary hearing" or trial for unresolved issues.


  •  Ex-Parte Orders - Sometimes a court may enter a custody, parenting time or child support order upon the request of one of the parties before the other party has received notice and without giving the other party a chance to explain his or her side of the story.  This happens in emergency-type situations, where the court is convinced that "irreparable injury, loss, or damage will result from [a] delay." Often this is relevant if one parent is planning on moving to a different country, the custodial parent is incarcerated or mentally unfit, or if one party wants to sell or dispose of marital property without the permission of the other person.  If a party disagrees with an ex-parte order, they must request the court to hold a hearing to change the ex-parte order by filing a motion within 14 days after they receive the order. If a motion is not filed within 14 days, the order automatically becomes a temporary order. 
  • Personal Protection Orders (aka PPO's) - It is not uncommon for one party to a divorce to obtain a personal protection order while a divorce or custody issue is pending.  If there was domestic violence in the relationship, it is a very good idea to get a PPO at the beginning of divorce proceedings because it is such a stressful time and emotions can run very high.  Here are instructions for getting one in Michigan: http://courts.mi.gov/Administration/SCAO/Forms/courtforms/personalprotectionorders/p02.pdf  PPO's are free to get, but the procedure varies by county.
  • Reconciliations and Dismissals - Not every divorce matter that is started ends in a divorce. If the parties are attempting to work out their differences and wish to have enforcement of their court orders suspended, they must provide the court and the Friend of the Court with written notice of their reconciliation. A reconciliation notice does not dismiss a divorce action or suspend a court order. If the parties have resolved their differences and wish to stop the divorce action, they must file an order of dismissal with the circuit court and provide a copy to the Friend of the Court. 
  • Judgment - A judgment contains the orders of the court, which address support, parenting time, custody, property and other related issues. From the date of filing the complaint there is sixty-day waiting period for divorce cases without children and a six month waiting period for divorces where there are minor children. After the waiting period is over the judge may grant a divorce. Some of the sections in the divorce judgment can be changed by the judge after it has been entered. (See Modification of Judgment). Once a judgment has been entered, parties must comply with its terms. If a party is dissatisfied with the judgment, he or she may wish to contact an attorney. Once an order has been entered, a party has 21 days to file an appeal. 
  • Modification of a Judgment  - After a judgment has been entered in a divorce, there are some orders that can be changed, such as custody, parenting time, support, and domicile. A change can only occur if both parties have signed an agreement (stipulation and consent agreement which, if approved by the court will be entered as an order; or a motion has been filed, a hearing has been held and the court enters an order granting a change. The Friend of the Court has a responsibility to petition the court in certain circumstances for child support and parenting time modification. 

Getting Started

Here are some helpful links to get started if you're completely new to the process of divorce, custody, or adoption.  The Friend of the Court can be very helpful; its whole purpose is to assist you with custody and child support issues.