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.

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.

Post-nuptial Agreements

In Hodge v. Parks, the Michigan Court of Appeals looked at post-nuptial agreements, which are a source of (contention? debate?) here in Michigan.  Generally courts will not enforce post-nuptial agreements as against public policy because they're made in contemplation of divorce.  In the Hodge v. Parkes case, the parties signed a post-nuptial agreement after filing for divorce and then reconciling.  The agreement was geared toward saving their marriage; it treated both parties relatively equally by treating "both defendant's premarital boat and plaintiff's premarital house as marital assets" and requiring "both parties to work together to improve their relationship, marriage, and finances .. On balance, far from being inequitable, the overall property division seems quite fair."  Here's a link to the case: http://www.michbar.org/opinions/appeals/2014/010214/56153.pdf

A Sad Case

When one parent asks the court to change a custody arrangement that has already been decided, the first thing the court looks at is where the children have an "established custodial environment" (ECE).  The ECE exists with the parent or parents to whom the children look for love, guidance, comfort, and care.  In this case (view the opinion here: http://www.michbar.org/opinions/appeals/2013/120513/55947.pdf), the court found that the children didn't have an ECE with either parent.  It sounds like the children stayed primarily with the mother, and she had been leaving them with a babysitter more and more until (according to the dad), the babysitter had become the primary caregiver.  The babysitter testified that "[s]he watched [the kids] 12 out of every 14 days and 90% of those times were overnight.  Also, "during one holiday, [the mother] refused to let the children spend extra time with him despite the fact that she had to work; rather than let the children stay with him for a few more days, she had the children spend the remainder of the holiday with a sitter."  I know this makes the mother sound horrible, but why wasn't there an ECE with the father?  Either way, the court found that there was enough evidence to justify a change in custody to make the father the primary custodial parent.

New Mexico legalized same-sex marriage

The seminal quote: "We hold that the State of New Mexico is constitutionally
required to allow same-gender couples to marry and must extend to them the rights,
protections, and responsibilities that derive from civil marriage under New Mexico law."  Here's a link to the case: http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,306.pdf

Dealing with a fresh divorce

This is a really interesting article published in the Huffington Post; "'Because We Both Love You' - New Year's Resolutions for Divorced Parents." http://www.huffingtonpost.com/kate-scharff/new-years-resolutions-for_4_b_4505703.html?ref=topbar

The Pundit - Friend of the Court Bureau Newsletter

http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Pages/Pundit.aspx

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