Tuesday, August 23, 2011 Court of Appeals Uses Paternity Act to Justify Criminal Sexual Conduct ConvictionIn a decision dated July 26, 2011, People v. Zajaczkowski, the Michigan Court of Appeals determined that the defendant convicted of Criminal Sexual Conduct, 1st Degree, was “related to the victim by blood or affinity to the fourth degree” even though a DNA test showed that he was not the biological son of the victim’s father. The defendant was charged and convicted of Criminal Sexual Conduct under statutory provisions requiring sexual penetration with a victim who was at least 13 but less than 16 years of age and related to the defendant by blood or affinity to the fourth degree. MCL 750.520b(1)(b)(ii) In an unusual twist of events, the defendant, who had been raised to believe the victim was his half-sister, claimed that her father was not his biological father. Subsequent genetic testing confirmed his claims. The defendant had been named an issue of the marriage between his mother and her husband in the Judgment of Divorce in 1979. It was therefore left to the Court of Appeals to determine whether the Judgment or the genetic testing would determine the relationship between the defendant and the victim for the criminal sexual conduct charges.
After defining “by blood” to mean “related by descent from a common ancestor,” the court looked to the Paternity Act and MCL 552.29 to determine whether the defendant could challenge his paternity (who the court believed his father to be). In Michigan, a person who is conceived and born during a marriage is presumed to be the legitimate “issue” of that marriage. That means that it is presumed that the wife is that person’s mother and the husband is that person’s father. Only the mother or the presumed legal father has the power to challenge that presumption under the Paternity Act, and then only during the pendency of the divorce proceedings. Without an affirmative finding by a family court that the defendant was not a legitimate issue of the marriage, the defendant did not have the standing (authority) to challenge the presumption that the man married to his mother when he was conceived and born was his father. Since in the eyes of the law that man was the defendant’s father, the victim, that man’s daughter, was the defendant’s half sister. Therefore, the conviction of Criminal Sexual Conduct, 1st Degree, was upheld.
Interestingly, very little emphasis was placed on the legislative intent behind the statute – “to protect minor children from sexual abuse by persons with whom they have a close relationship.” Even though this legislative intent would permit the broad interpretation of “related by blood” that the court used, it gave the purpose scant mention. That purpose, it would seem, would provide a superior reason to convict in this particular case – to protect the 15 year old victim from the abusive acts of someone she believed to be her much older half brother.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime. Thursday, August 18, 2011 The Legal Effects of Child AbuseThe issue of Child Abuse is a sensitive and serious issue that brings into play in several different parts of the court system. Victims and their families can find help from a number of different sources including (but not limited to) the Michigan Department of Human Services and domesticviolence.org. If you are or know a victim of child abuse you are encouraged to use those resources. This article, however, will focus on explaining the legal effects of Child Abuse.
What Qualifies as Child Abuse?
Child abuse is physical or serious mental harm done to a person less than 18 years of age. Physical harm means any injury to a child’s physical condition. Serious physical harm “seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.” Serious mental harm is any injury to the child’s mental condition or welfare that is visibly observable and amounts to a “substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” Examples of this might include phobias, developmental delays or regression, depression, or serious anxiety. MCL 750.136b.
Criminal Consequences of Child Abuse
In the criminal system in the State of Michigan there are four (4) degrees of Child Abuse. The different degrees count down in severity. Depending on the facts in a given case, a person can be charged with multiple counts of one of the degrees, or may be charged with different degrees of Child Abuse.
Child Abuse 1st Degree can be charged when a person “knowingly or intentionally causes serious physical or serious mental harm to a child.” If convicted of the felony Child Abuse 1st Degree, a person could serve up to 15 years in prison.
Child Abuse 2nd Degree can be charged when a person:
- Fails to act or acts recklessly in a way that causes serious physical harm or mental harm to a child;
- Knowingly or intentionally acts in a way that is likely to cause serious physical or serious mental harm, even if that harm does not actually occur; or
- Knowingly or intentionally acts in a cruel, brutal, inhuman, sadistic or torturous way toward a child, even if harm does not occur.
If convicted of the felony Child Abuse 2 nd Degree, a person could serve up to 4 years in prison.
Child Abuse 3rd Degree can be charged when a person:
- “Knowingly or intentionally causes physical harm to a child;” or
- Knowingly or intentionally creates an unreasonable risk of harm to a child, which actually results in physical harm.
If convicted of the felony Child Abuse 3rd Degree, a person could serve up to 2 years in prison.
Child Abuse 4th Degree can be charged when a person:
- Fails to act or acts recklessly in a way that causes physical harm to a child;
- Knowingly or intentionally creates an unreasonable risk of harm to a child, regardless of whether harm actually occurs.
If convicted of the misdemeanor Child Abuse 4th Degree, a person could serve up to 1 year in a local jail.
A person cannot be convicted of Child Abuse if using reasonable force to administer reasonable discipline to a child (such as spanking with an open hand). A person may also defend against a charge of Child Abuse by showing that he or she was acting in reasonable response to an act of Domestic Violence. MCL 750.136b.
If you have been charged with Child Abuse, contact an attorney to discuss possible defenses as well as a possible reduction in the degree and therefore the severity of punishment.
Juvenile Court Consequences of Child Abuse
The effects of Child Abuse in the legal system do not end with conviction. If a person has been charged or otherwise accused of child abuse, that will likely start an investigation by Child Protective Services. If there is “probable cause” to believe the Child Abuse occurred (a low standard of proof), then Child Protective Services may remove the child and any siblings or other minor children in the home and place them with a foster parent. This affects the rights and privileges of both the charged person and the other parent(s) of the children. Once the children are removed and the initial proceedings are completed the case is turned over to the Department of Human Services.
The Department of Human Services may terminate the rights of a parent immediately if there is clear and convincing evidence (the highest standard of proof in the family court) of the following the parent abused the child or a sibling by:
- Abandoning the young child;
- Committing Criminal Sexual Conduct involving penetration, attempted penetration, or the intent to penetrate against the child or sibling;
- Causing severe physical abuse such as battering or torturing the child or sibling;
- Causing life-threatening injury to the child or sibling;
- Committing or attempting Murder or Voluntary Manslaughter, including under theories of aiding and abetting, solicitation, or conspiracy.
If none of the above circumstances apply, the Department of Human Services must provide services toward reunification between the parent and child for a period of at least 6 months. If material improvement is not found after that period, the Department of Human Services may terminate the rights of a parent if there is clear and convincing evidence (the highest standard of proof in the family court) of the following (with respect to Child Abuse):
- The child or a sibling suffered physical injury or sexual abuse by that parent and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
- The parent had an opportunity to prevent physical injury or sexual abuse but failed to do so and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
- The child or a sibling suffered physical injury or sexual abuse by a nonparent and there is a reasonable likelihood of further risk of injury or abuse by that nonparent in the foreseeable future. MCL 712A.19b
A recently published case by the Michigan Court of Appeals, In re Ellis, decided June 14, 2011, allows the court to terminate the rights of both parents after serious physical harm has come to the child and if the parents were the sole caretakers of the child, even if the court is unable to determine which parent actually caused the injury. This is because one parent caused the injury and the other failed to prevent the abuse. The court conditioned its ruling on the fact that the evidence suggested the abuse had occurred over a period of time and would have been noticeable by either parent.
Family Court Consequences
In cases where the Family Court has jurisdiction over a minor child subsequent to a divorce or under the Child Custody Act or Paternity Act, the other parent can file a motion modify the custody and parenting time arrangement reevaluated in light of the charges of Child Abuse. If such a motion is filed, the court will hold a hearing and may reserve (put a stop to) or suspend (put a temporary stop to) a person’s right to parenting time with the child. The court may also require that any parenting time be supervised by either a professional counselor or a mutually agreeable friend or family member. It may also require particular counseling, education, or other treatment for the parent or child before regular parenting time is resumed. A Family Court cannot grant custody to a parent who has been convicted of Criminal Sexual against the minor child or a sibling unless the other parent and the child (of sufficient age) agree to the custody arrangement. MCL 722.25a.
The effects of Child Abuse reach far beyond the legal consequences and the courts take those effects very seriously. However, knowing what is to come in the event of Child Abuse can help you to take the proper protective measures, and can help you to know when is the right time to call an attorney.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue with respect to Child Abuse. Monday, May 23, 2011 How Can I Legally Provide for My Incapacitated (or Disabled) Child?
As anyone with a disabled family member knows, planning for the care of an incapacitated person is a complex and challenging undertaking, but it is very important. While the incapacitated individual is a minor child (under 18 years of age), he or she is protected by the same statutes that protect other children including the Child Custody Act. Under this act, a Family Court judge can order either you or your wife or husband to take custody of the child and pay support including medical bills. However, once your incapacitated child reaches age 18, those protections go away. Michigan is one of the few remaining states that does not under any circumstances permit a Family Court judge to order support for a child after he or she reaches 18 in light of special circumstances (such as college attendance or disability). The only concession in the Michigan Child Custody Act is that jurisdiction over the child can be extended until the child is 19 ½ years old if that child is a full-time high school student living with one of his or her parents on a full-time basis. This limitation in the Michigan Child Custody Act has forced parents of incapacitated children to get creative in planning for the future of their children.
How Can I Get Authority to Make Decisions for My Incapacitated Adult Child?
If your disabled adult child is not able to make important decisions for him or herself, then the Probate Court can determine that he or she is incapacitated and can appoint a guardian. A guardian has the authority to make day-to-day as well as emergency decisions regarding the incapacitated adult in the same way a parent has the authority to make decisions for his or her minor child. Obtaining a guardianship can be tricky, and often involves psychological and physical examinations of the incapacitated adult, so it is a good idea to contact an attorney who can help you complete the necessary forms and get the required evidence in place. It is also a good idea to elect a substitute guardian (who serves if you are unable to) or a co-guardian (who serves at the same time you do) in the event that you are no longer able to serve as guardian at some point in the future. Doing so will avoid a scramble to appoint a new guardian after the unfortunate event has occurred. This person could be your spouse, an adult sibling or family member, or other trusted caretaker as long as that person agrees to be appointed and signs an Acceptance of Appointment.
How Can I Prepare for If Something Happens to Me?
There are several steps that you should consider taking as a parent of an incapacitated child in order to protect and provide for that child in the unfortunate event something were to happen to you.
First and most importantly, keep an updated will naming a successor guardian. If you have not gone through the formal Guardianship procedure (explained above), then the inclusion of a named guardian in your will can give the person you name the authority to make decisions on a temporary basis, and will trigger proceedings in the Probate Court to create a formal Guardianship.
Second, you can create what is called a “Spendthrift Trust” for your incapacitated child’s benefit. This trust can be administrated by a bank or by an individual you trust and can provide money for the care, support, and medical expenses of your child even after you pass away. A spendthrift trust can be created while you are alive (with you as the primary trustee and another person or bank as the secondary trustee) or in your will. If you put it into your will the funds will be distributed out of your estate after you pass away.
Third, you should create a Durable Power of Attorney with respect to your incapacitated child. This document gives some other person the authority to make all the decisions you ordinarily would if for whatever reason you become unavailable or unable to make those decisions. Essentially, it creates a go-to person if you can no longer make the decisions for your incapacitated child. Creating this document will allow a seamless transition between you and the new caregiver in the eyes of the medical institutions responsible for the care of your incapacitated child.
It is a good idea to make these documents early and keep them updated in preparation for the unexpected. A probate attorney can help you decide what steps are best for your particular case and can help you select trustees and successor guardians.
What Can I Do If I Get Divorced?
This may be the trickiest area of the law. Because of the limitations of the Michigan Child Custody Act, there is no way for a Family Court judge to force your ex-wife or ex-husband to assist in the care and support of your incapacitated adult child. It is recommended that you contact an attorney early, ideally when you first discover your child’s disability or incapacity, and request a postnuptial agreement. This agreement is essentially a contract between spouses that outlines how the parties will behave if there is ever a divorce. The postnuptial agreement can specify which party will take primary custody of the incapacitated adult child, can require the other party to contribute to the monetary support of the child, and can dictate how medical expenses will be shared between former husband and wife. The later this contract is entered into, the more suspicious some judges will be of it, and the less likely your spouse will be to agree to it, so take steps early to contact a family law attorney who can help you draft an agreement before you really need it.
It is understandably important to you to make sure that your incapacitated child will be cared for in the event of the unforeseen. It may seem at first as though there is nothing you can do, but with careful planning and a proactive approach, your child can be protected and provided for even after you pass away.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue. Wednesday, April 20, 2011 When is the Right Time to Call an Attorney?
Sometimes it can be hard to tell when it is the right time to call an attorney. Legal services are often expensive and sometimes you do not want to contact a lawyer until you are sure about going forward. Sometimes, potential clients call too soon, before their case has developed far enough for an attorney to help them. Worse, many potential clients wait until it is too late and their window of opportunity has passed. So how do you know when to pick up the phone, or send in an email? The answer depends on the type of case.
Criminal
It is almost never too soon to contact an attorney if you believe that you may be suspected or charged with a crime. Even if you have not yet been charged, having an attorney “on retainer” to represent you can protect your rights and make certain that you are not caught talking to the police alone when you would rather remain silent. Also, in some cases, an attorney can make deals that will keep you from even being charge if, for example, you agree to testify against one of the other people involved in the case. Having an attorney early also improves your chances of getting a fair pre-conviction bond so you will not be held in jail any longer than is necessary. This bond is usually set at the initial hearing, called an arraignment. While your attorney can file a motion to modify or reduce the bond later on, the arguments are often more persuasive at the start, and you can avoid having to wait in jail until the motion can be heard. All in all, there is no reason to wait to contact an attorney in a criminal matter. The sooner he or she becomes involved, the better.
Civil
There are many different kinds of civil cases, each with their own considerations. The Peter J. Johnson Law Office does not specialize in civil law, but there are occasions when the attorneys here can be retained. Civil law is the area where the most clients call too soon or too late. In order for a matter to be heard in a civil case, damages have to be definite. This means that the doctors have to be done diagnosing, if not treating any injuries, the repair shop needs to be done fixing the property or at least have provided an estimate, and all the numbers are in on the cost of the breach of contract. There are, of course, exceptions, but generally, it is not helpful to contact an attorney until you have reached this stage.
It is more important that you not wait too long, though. The State of Michigan, like most other states, have what are called “Statutes of Limitations” or windows of opportunity within which you can file a claim. The standard Statute of Limitations is 6 years, but particular types of matters, such as medical malpractice or auto negligence have shorter period – some as short as 1 or 2 years. More importantly, sometimes this is measured from when the injury actually happened, rather than when you found out it was a problem. Your best plan of action is to contact an attorney early in the process and find out what the window of opportunity is with respect to your kind of case.
Family
This can be the most difficult kind of case to decide just when it is the right time to get an attorney involved. Often matrimonial discord can be resolved with counseling or informal mediation without resorting to a divorce. Other times, there has already been a divorce, but the question is whether things will get better or worse if you ask a judge to reevaluate custody, support, or parenting time for your children. It is best in these cases to wait until you are certain of the change you want to happen, and you have proof of your claims. If you come in, for example, and tell the lawyer that you thing your wife or husband is cheating on you, it will likely cost you a lot more for the lawyer or private investigator to dig through all the facts than if you are able to show him or her the emails supporting the claim yourself. Also, remember that for child custody issues, the courts look at what is in the best interests of the child, and after a judgment has been entered, will only consider evidence of what has changed since the last order. Document anything you question and bring that documentation to your attorney when it is time. A motion can be started before you have the proof, but without evidence, you are not likely to get the result you want, and after the motion has been filed, your ex-husband or wife is not likely to cooperate nearly as much as he or she would have before.
Probate
Probate matters, including guardianships, conservatorships, and deceased estates can be the most emotionally trying times to contact an attorney, and for that reason many potential clients wait longer than they should to start the proceedings. For probate matters such as wills and powers of attorney, it is best to come in before you believe you really need the document. As a rule of thumb, if you have a house or a child, you need a will, and probably a power of attorney as well. That is because these documents protect you and your estate if something were to happen to you, even unexpectedly. For more complex matters, such as guardianships and conservatorships, an attorney should be contacted as soon as the need arises – that is, as soon as it is clear that the parents will not be able to care for the child or the disabled adult is not able to care for his or herself.
Most importantly, if you have had a death in the family, it is important to contact an attorney within 30 days of the death. If a will is not filed with the court within that time, creditors can initiate proceedings to claim the deceased’s assets. Even if all you can do is get the estate started, it is very important that an attorney be contacted right away. Waiting could threaten the wishes of the deceased as to what is to be done with his or her possessions.
Regardless of the area of law, deciding to bring in an attorney is no small matter. If you are unsure as to whether it is time, the best course of action is to talk to an attorney and see what he or she would recommend. Do not procrastinate. Sometimes the consequences of inaction can be dire, but they can usually be avoided by an early call to an attorney.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue. Thursday, March 31, 2011 Berrien County Trial Court Judge Warns Against Sole Legal Custody
It has been standard procedure in many law offices, including the Peter J. Johnson Law Office to request sole legal custody (that is sole power to make decisions regarding the care and upbringing) of minor children in cases where one or the other parent was not engaged and involved with the children. This has always been particularly true when that non-active parent was in default – when he or she had failed to come to court or answer the pleadings filed by the attorney. However, a few recent court of appeals decisions have led at least one Berrien County Trial Court Judge to hold off on giving one parent sole decision-making power.
A 2009 court of appeals decision, Brausch v. Brausch, has been interpreted to permit a parent with sole legal custody of a child to move out of state with that child without permission of the court. However, a close reading of the Brausch case states that the custodial parent still requires the permission of the court, but that the court need not take into consideration the statutory factors in reaching that decision. With either interpretation, the concern remains that the custodial parent could potentially move far enough away that the court-ordered parenting time becomes impractical. No parent is going to put his or her 8 year old on a plane every other weekend to have parenting time with mom or dad. Thus the rights of the non-custodial parent to have parenting time could be significantly inhibited.
On top of these concerns, the Michigan Court of Appeals recently published a decision in Dailey v. Kloenhamer that explains that sole legal custody is appropriate when the parents have demonstrated an inability to agree on significant legal issues of the child. In that case, the parties were unable to agree whether their daughter had asthma, and whether she should be tested for allergies. Other significant legal issues might include the proper treatment for a condition of the child, whether the child should see a therapist or counselor, whether the child should be placed in public, private, or home schooling, whether special education or extra-curricular educational assistance is appropriate, or other similar disputes. While the court does not specifically limit the award of sole legal custody to where such demonstrated inabilities exist, the case has been interpreted to require such a showing.
What does all this mean to clients looking to get custody of their minor children? It means that, from at least one Berrien County Trial Court Judge, the clients and their former partners had better get used to the idea of compromise, because the judge is not going to risk losing control of the parenting time situation by granting one party or the other sole decision making power. Without a “demonstrated inability to agree” clients and their former partners will be destined for a long and potentially contentious struggle to agree on what is best for their children.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a custody matter. Wednesday, March 09, 2011 How does the court decide which parent gets custody of the kids?
In almost every domestic matter that comes through the doors at the Peter J. Johnson Law Office, one of the client’s primary concerns is how he or she will get custody of his or her children. The procedural steps to getting custody of the children are addressed in a previous post, but once the papers are filed and the motions are heard, how does the judge decide whether the kids live with mom or dad?
Custody disputes are governed by the Michigan Child Custody Act, MCL 722.21 et seq. That statute says that all determinations of custody and parenting time of a child should be governed by the “best interests of the child.” The statute also lists 12 factors that must be considered by the court in determining what the best interests of the child are. Those 12 Best Interest Factors are:
a. “The love, affection, and other emotional ties existing between the parties involved and the child.”
Under this factor, the court is likely to consider with which parent the child is more closely bonded. If the child is young, this might be the parent to whom the child would run if he or she fell and scraped his or her knee. For older children, it may be the parent that is more likely to hear about troubles at school or a new girlfriend or boyfriend. The court will consider which parent is better able to communicate with the child and who knows the child’s interests and preferences better. It is the factor of which parent is more closely bonded with the child.
b. “The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.”
This factor covers which parent is more actively involved in making sure the child is educated and raised appropriately. The parent who makes arrangements with teachers for extra help, or who attends parent-teacher conferences will be favored, as will the parent who drives the child to weekly bible study or Sabbath services. The court may also consider how each parent disciplines the child and what rules are set down in each parent’s household. It is the factor of which parent is more in charge of the direction and nature of the education and guidance of the child.
c. “The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.”
When considering this factor, the court’s primary focus is on who is able to provide for the material needs of the child. One aspect of this is which parent has more financial resources available to spend on the child, but remember that the court also has the power to order child support to be paid to a less-well-off parent. The court will also consider which parent generally takes the child to doctor’s appointments, and who stays home when the child is sick. Generally speaking, this factor looks at who has been the primary caretaker of the child up to the point of the present domestic matter.
d. “The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”
This factor addresses the physical residences of the parents. The court may consider whether the child has his or her own bedroom at each parent’s home, the size and quality of the home, its state of repair, and its geographic location. The court may also address any other people living in the household including siblings, significant others, and relatives. While there is a general tendency to prefer not to uproot a child, if the court finds that the child’s present living conditions are not in the child’s best interest, the court may decide that continuing the present situation is not desirable given the other option. This is the factor that addresses where the child will live, rather than with which parent.
e. “The permanence, as a family unit, of the existing or proposed custodial home or homes.”
This factor addresses more directly with whom the child will be living. If there are siblings involved (including half or step-siblings), the court will consider the relationship the child has with those siblings. The court will also, to an extent, consider the romantic tendencies of the parents. For example, if one parent has a history of dating a new person every few months, the court may determine that this could be detrimental to a young child who may become bonded to that parent’s partners. The court may also consider evidence that one parent has remarried, thus providing a more stable family unit. This is the factor of with whom the child will live in addition to the parent.
f. “The moral fitness of the parties involved.”
Under this factor, the court has the ability to consider the past and present poor choices of either parent. However, case law specifically limits these considerations to what will affect either parent’s ability to adequately parent the minor child. Therefore, just because one parent had an extra-marital affair, it does not mean that the court will find that the parent should never have custody of the child. Instead, the court will likely focus its attention on the decisions the parties have made that have a direct impact on the child. Examples of these decisions are drug and alcohol use, romantic interactions in the presence of the child, the use of excessive foul language in front or directed at the child, physical, emotional, or mental abuse, poor driving records, and poor criminal records. Generally, this factor addresses which parent will be a better role model to the child.
g. “The mental and physical health of the parties involved.”
When considering this factor, the court may look at any significant mental or physical disabilities the parents may have. As with the previous factor, case law limits this inquiry to those disabilities that will affect the parents’ abilities to parent the child. While asthma or poor eyesight may exist, it is not likely to interfere with a parent’s ability to be a parent, so the court is not as concerned with these kinds of infirmities. However, if one parent is physically unable to care for a child’s needs, perhaps because they cannot lift the child to change a diaper that is something that the court may consider. The court may also look at the mental health history of the parents. Disorders such as bi-polar disorder and major depression often have a drastic effect on how a parent treats a child. This is the factor that asks which parent is better physically and mentally capable of giving care to the child.
h. “The home, school, and community record of the child.”
This is one of the few factors that look directly at the child him or herself. It addresses how well the child has adjusted to the status quo. The court may consider whether the child is doing well in school, if he or she has many friends, and whether he or she is involved in extracurricular activities. The court will also consider whether the child acts out in the home or has had any difficulties with law enforcement. This factor addresses how the child is doing where he or she is living now.
i. “The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.”
This factor asks the child directly, with whom he or she wants to live. The court will give some weight to this preference, but judges often say that they do not give the child carte blanche to decide where he or she wants to live. In order to determine the child’s preference, if the court deems it appropriate (generally if the child is 12 years old or more), the judge will hold an in-camera review with the child. This is an informal interview solely between the judge and the child. The child will generally not be asked to testify, nor will either parent be present to influence or pressure the child. The court has many safeguards in place to try to shelter the child from the fact that domestic proceedings tend to bring out the worst in both parents. In the end, this is one factor among many, but it allows the child (who is old enough) to express a preference as to his or her future living arrangements.
j. “The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.”
The Michigan Child Custody Act expressly states a presumption that a child is best served by having a strong relationship with both parents (absent evidence to the contrary). This factor asks which parent is more readily willing to facilitate the child’s relationship with the other parent. In deciding this factor, the court may consider each parent’s tendency to cooperate with or discourage the parenting time of the other parent. The court may also consider evidence that either parent is speaking negatively to the child about the other parent. Generally, this factor addresses which parent will be better able to cooperate with the other parent with respect to the child.
k. “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”
The court and the Michigan State Legislature take very seriously the impact of domestic violence on children. For this reason, the Michigan Child Custody Act specifically addresses the presence of domestic violence in either of the lives of the parents. This is a broadly defined factor and can include violence against the child, siblings, or even against the parents. The court may consider the tendency of the child to assault his or her parents as well. The impact of domestic violence upon the children who witness or are exposed to it cannot be overstated, and this factor allows the court to give the presence of such a circumstance serious consideration.
l. “Any other factor considered by the court to be relevant to a particular child custody dispute.”
Every custody case is different. There may be additional information that is very relevant to the best interests of a child that does not fall neatly into any of the above factors. Or there may be circumstances that could be considered in a number of different factors. One example of this is if the child has special needs. If the child has some physical, mental, emotional, or educational disability, this can drastically affect the court’s determination of which parent is better equipped to deal with such a challenge. The court may also consider the employment hours of the parents. If you have a custody matter it is important that you talk openly with your attorney about the circumstances surrounding the child. There may be additional factors that could swing the custody determination in your favor.
After the court considers the 12 Best Interest Factors, it is likely that some factors will favor one parent, and some the other, and that there will be some factors that do not favor either parent. The court will then fashion a custody and parenting time arrangement that it feels addresses the best interests of the child. In making this decision, the Michigan Child Custody Act says that a judge should not favor a mother over a father or vice versa based solely on gender, but should evaluate the circumstances in light of the above factors. It will then fashion a parenting time schedule in line with those 12 Best Interest Factors.
So what if the circumstances change? What if one parent gets a job that keeps him or her away from home when he or she was supposed to have parenting time, or a parent gets remarried or moves into a better home? The court has what is called “continuing jurisdiction” over custody matters until the child is 18 years old. This means that either parent can come back to the court and ask the court to reevaluate the best interests of the child if there has been a “material change in circumstances.” This must be something more than just the everyday changes of life (such as the child growing older and changing schools), but courts are often willing to work with parents to find a new arrangement that best suits the parents and is in the best interests of the child. If things simply are not working out, talk to your attorney to see whether there has been a change of circumstances sufficient to allow the court to take a second look at the arrangement.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a custody matter. Friday, January 28, 2011 Can My Ex-Wife’s Boyfriend Take Away My Kid?
A recently published case from the Michigan Court of Appeals, Pecoraro v. Rostagno-Wallat, has supported previous court rulings that a “putative” or suspected biological father generally cannot bring a suit to establish paternity or custody over a child that was conceived and born while the mother was married to another man.
In the case, the mother and her boyfriend had an intimate relationship while they were both attending law school, and while the mother was married to her husband. After the boyfriend finished school he moved to New York. The mother visited the boyfriend in New York, and shortly thereafter was found to be pregnant. DNA tests on the child confirmed that the boyfriend was the father. However, the mother and the husband never got divorced, and more importantly, never asked the court to determine that the child was not the husband’s. The boyfriend got a court in New York to issue an “Order of Filiation” stating that he was the father, but the court had no jurisdiction (that is no authority or power) over the husband. The boyfriend then tried to enforce that Order of Filiation in Michigan.
The Michigan Court of Appeals said this just simply would not work. In Michigan, if a child is conceived and born while the mother is married, the courts are required to assume that the husband is the father. The mother or the husband may request that the court make a finding to the contrary based on, among other things, DNA evidence, or lack of access at the time the mother became pregnant. A third party (particularly the boyfriend) cannot ask the court to ignore the assumption that the husband is the father and award him paternity or custody rights over the child unless some court has already made a judicial finding at the request of the mother or the husband.
All of this may seem a little complicated, but the court’s ruling boils down to this: a child cannot have two legal fathers. Because the mother and the husband had not asked the court to decide that the husband is not the father, the boyfriend could not bring a suit to have a court determine he was the father.
But what about that ruling by the New York court? Ordinarily, a court in Michigan must enforce valid rulings made by other courts in other states. In this case, though, because the New York court admitted that the husband was considered the legal father under Michigan law, and because the New York court did not have jurisdiction (that is authority or power) over the husband, the New York court’s ruling was not valid and the Michigan court did not have to enforce it.
To make a long story short, the boyfriend was not allowed to take the child away from the husband, who was assumed to be the legal father under Michigan law.
Read the original court opinion on the State of Michigan website.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a divorce. Friday, January 21, 2011 I Want a Divorce! Now What?
A lot of clients come in to the Peter J. Johnson Law Office knowing that they need a divorce, but not knowing what the process is going to be to get one. This is intended as a very basic overview of the procedure for getting a divorce. Of course, every relationship is different, so there may be something about your case that will cause it to vary from this procedure, but in general a divorce follows a certain order of steps.
Step 1: Gather Your Information
Even before you come in for an initial consultation with an attorney, it is often a good idea to get your important documents in order. Divorces are emotional things, and when either you or your soon-to-be-ex moves out it can be easy for these important papers to get lost.
For minor children (under 18 years of age)
Birth Certificates
Social Security Cards
Medical Insurance cards
For your home (Real Property)
Deed
Mortgages & Notes
The most current invoice showing the balance you owe on the home
Any appraisals that have been done on the property
Invoices for any unpaid or overdue utilities
A list of who paid what in the maintenance and upkeep of the home
For your motor vehicles (cars, trucks, motor homes, boats, ATVs, etc.)
Title
Registration
Proof of Insurance
Loan contract
The most current invoice showing the balance you owe on the vehicle
A list of who paid what in the maintenance of your vehicle
For your “stuff” (Personal Property)
A list of any property you owned before the marriage
A list of any property your soon-to-be-ex owned before the marriage
A list of any property you specifically want (or don’t want) after the divorce
Any appraisals that have been done on the property
For your accounts (bank, credit, debit, etc.)
The most current statement showing the balance in the account (or how much is owed)
Whose name the account is in
A list of who paid what in the maintenance of these accounts
For your investments (401(k), Pensions, IRAs, Insurance, stocks, bonds, etc.)
The most current statement showing the balance in the investment
The name of the Plan Administrator for the investment
Whose name the investment is in
When the investment was opened
(For 401(k)s and Pensions) What employer the investment is through
Step 2: Initial Consultation
Meet with the attorney. At the Peter J. Johnson Law Office the initial consultation is free. Be prepared to answer questions and/or fill out a questionnaire with much of the important information contained above. You may wish to bring copies of the documents to speed up the process.
Be truthful. Tell your attorney the truth, even if it’s ugly. Your attorney is your advocate. It is his or her job to fight for your position and to put your story in the best light possible. It is much harder to do that if you are not up front with potential problems. Think of it this way: what is the worst thing your soon-to-be-ex might say about you? That is what your attorney probably needs to hear about.
Be thorough. Ask all your questions, even if they seem trivial. Sometimes what seems like a small thing can provide a clue that will become important later on.
Be prepared. At the end of the initial consultation, your attorney may want you to sign a Fee Agreement and put up a retainer fee to get the case started. Know what you can afford to pay. Work often cannot start on your case until you put some money down.
Step 3: Initial Pleadings
After you meet with your attorney, he or she will begin drafting the initial pleadings. These may include:
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Summons and Complaint (in every case) – Gives your soon-to-be-ex that you have filed for a divorce
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Complaint for Divorce (in every divorce case) – States the basic claims about what has happened and what you want out of the divorce. Because Michigan is a no fault state, the Complaint for Divorce does not go into details. That will come later.
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Temporary Motions – Motions that help to set how you and your soon-to-be-ex will interact during the divorce proceedings, such as:
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Temporary Custody and Parenting Time – Who will have the children and at what times
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Temporary Child Support – Who will pay for the children’s expenses
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Temporary Restraining Order as to Marital Property – Prohibits either you or your soon-to-be-ex from getting rid of marital property
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Temporary Spousal Support – Who will provide for your (or your soon-to-be-ex’s) expenses
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Temporary Attorney Fees – Who will pay for your (or your soon-to-be-ex’s) attorney
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Exclusive Use of the Home or Vehicle – Who will get to keep possession of the marital home or use particular vehicles.
There are many different kinds of temporary motions. If there is something you feel should be addressed right away, talk to your attorney about it. There may be a temporary motion that can be filed to address your concern.
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Verified Statement and IV-D Application – A form filed with the Friend of the Court (an administrative department that assists with family law matters) and contains confidential information not included in the public file (like social security numbers)
Once these documents have been prepared, your attorney should call you to come in and sign the documents. Then they can be filed with the court. When the documents are filed, a case number and presiding judge are assigned.
Step 4: Service of Process
After your attorney files your initial pleadings, they must be personally delivered to your soon-to-be-ex. This is done by designated “process servers,” many of whom are retired police officers. Be sure to give your attorney a physical description of your soon-to-be-ex, so that the process server will be able to recognize him or her when serving the papers. Let your attorney know when and where is the best place to find your soon-to-be-ex. Should he or she be served at home or at work? Is it better during the day or evening? What about weekends?
If you are concerned about how your soon-to-be-ex may react to being served, talk to your attorney to arrange a particular time when he or she will be served. That way, you can make arrangements to be elsewhere when it happens.
Step 5: Answers
Once your soon-to-be-ex has been served, he or she has 21 days to file his or her Answer to Complaint for Divorce, as well as answers to any temporary motions that have been filed. He or she may elect to contact an attorney, in which case that attorney will file an appearance and draft the answers. Otherwise, your soon-to-be-ex may choose to represent him or herself. In either case, the law treats your soon-to-be-ex the same and assumes that he or she will abide by all the court’s rules and procedures.
Step 6: Mediation Orientation
After you have filed your initial pleadings (in Berrien County), the Friend of the Court will contact you gather some information about any minor children you may have, your income, your home, and so on, as it relates to those children. The Friend of the Court will use that information to create a recommendation as to issues related to the children and to spousal support, which it will provide to your presiding judge.
The Friend of the Court (in Berrien County) will also set up a Mediation Orientation date for you and your soon-to-be-ex. This is a one-on-one mediation session between you and your soon-to-be-ex. No attorneys are involved. It serves as a first chance to resolve who gets what after the divorce. There will be many more opportunities to come to a resolution, so do not feel that you need to give in to anything on that day.
Step 7: Preliminary Hearings
After the Mediation Orientation date (in Berrien County), the Friend of the Court will set a hearing date for any temporary motions that were filed relating to children or spousal support. The initial hearing is short and is designed to see if a settlement resolution can be reached. If not, then the Friend of the Court will set a contested hearing. Both of these hearings will take place in front of a Domestic Relations Referee.
The Contested Hearing may take a half or even a whole day. Each side will have an opportunity to present evidence and to cross-examine the other side’s witnesses. It is kind of like a mini-trial. At the end of the hearing the Domestic Relations Referee will issue a ruling. If either side disputes the ruling made by the Referee, they may request that the presiding judge hold a “De Novo Hearing” and review the decision made by the Referee.
Step 8: Waiting Periods
The Michigan Legislature has stated that before a couple may get a divorce, they must wait 60 days if there are no minor children, or 180 days if there are minor children. This waiting period starts the day the Complaint for Divorce is filed. The purpose of this waiting period is to make sure that the parties will not reconcile before a Judgment of Divorce is entered.
This is not wasted time. It provides an opportunity for both sides to gather important information (discovery), file any necessary pre-trial motions, obtain experts to appraise the home or marital property, or to address any other relevant issues (such as psychological examinations or DNA testing), and to prepare for trial.
Step 9: Mediation
Most cases (in Berrien County) are referred to a Mediator prior to trial. A Mediator serves as an unofficial go-between with the parties and attempts to come to a resolution that both sides can agree to. Attorneys for both sides attend the mediation. If the parties are able to resolve all the issues, then no trial is necessary, but if not, then at least the Mediator may be able to narrow down which issues are disputed and provide a focus for the scope of the trial.
Step 10: Trial
This is your chance to present your case to the presiding judge. Your attorney will likely put on witnesses and present evidence, and may even call you to the stand to testify. The other attorney will have a chance to cross-examine all of the witnesses, including you, and to review all the evidence, as well as put on any of his own.
Testifying can be a big deal, and can be intimidating to some people. Talk to your attorney before the trial. Try to find out what kinds of questions he or she plans to ask you, and think about your answers ahead of time. Maybe jot down a few notes to review right before you take the stand. Ask the attorney if you can see the courtroom ahead of time. Most importantly, try to relax. Remember that the judge is a person just like you, and he or she will forgive you if you slip up or stutter, or need to take a break.
At the end of the trial, sometimes on a separate day or in a written “Opinion” the presiding judge will make his or her ruling. This is the final order of the case. What he or she rules will be binding on you and your soon-to-be-ex unless and until it is overturned in some later order or appeal.
Step 11: Judgment of Divorce
After you and your soon-to-be-ex reach an agreement on all the disputed issues, or if you are unable to, after the judge has made his or her ruling, then the attorneys will put all of the terms together in one document called the Judgment of Divorce. Often there will be attachments, like a Uniform Child Support Order or a Uniform Support Order (for spousal support). You may be asked to come in and sign these documents before they are filed. Read these documents carefully and make sure you understand them. The Judgment of Divorce is your reference to what you and your soon-to-be-ex are supposed to do after it is entered to resolve your divorce.
Step 12: Pro Confesso Hearing
If you did not have a trial in your case (because you and your soon-to-be-ex came to a settlement), you will have to go before the judge and provide proof that the statements in your Complaint for Divorce are true. This is a short and relatively painless hearing. At the end of this hearing (or after the Judgment of Divorce is prepared following a trial), the judge will sign the Judgment of Divorce and any attachments and you will be officially divorced.
Divorce cases can be long and complicated processes. Make sure you keep in touch with your attorney and understand what is going on. It may seem like a long time, but in the end, hopefully, you will be much happier for it.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a divorce. |