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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Monday, March 30, 2009

Same-Sex "Parenting Time" to be considered in Michigan in the Post-Adoption Context

In an unusual decision by the Michigan Court of Appeals, a lesbian couple who adopted three children in Illinois in 2003, and who are now ending their same-sex relationship, will have the opportunity to present evidence to a family court judge in support of their respective claims for custody and parenting time. The decision is unusual to the extent that the Court of Appeals did not consider the transcript of the arguments made before the lower court because the appellant, representing herself without legal counsel, did not bother to file the transcripts before the appellate court.

Michigan does not recognize same-sex marriages nor can a same-sex couple adopt the same child. This case presents a procedural twist where a family court judge will now have to consider the competing claims of each adoptive parent.

The following link addresses the case in a recent article published in the Chicago Tribune:
http://www.chicagotribune.com/news/chi-ap-mi-gayadoption,0,2545662.story

Invoking 100-Mile Rule Could Cost a Parent Custody

A recent Michigan Court of Appeals decision changed physical custody of the parties' minor child from the Mother to the Father when Mother moved from Ludington to Traverse City. Since the move was less than 100-miles, Mother believed that she did not need to seek the permission of the court to "endorse" the move. She was wrong. At the time of the impending move, Father filed a motion to modify his parenting time due to Mother's proposed move. The family court conducted an evidentiary hearing on the parenting time and custody issues because the move would have unavoidably transformed one of the parents into a "weekend parent", and also appeared to affect the "established custodial environment" which the child had in both households.

The court of appeals affirmed the family court and Father now has custody. Mother could have elected to stay in Ludington, and remain the primary custodial parent of her daughter. Instead, she chose to move to TC and lost physical custody as a result. Thus, sometimes it pays to put more emphasis on the best interests of the children than on your own personal and professional goals. This Mother probably thought she would have no problem in taking her child away from the Father. Michigan law allows the custodial parent to move up to 100-miles without the family court judge's permission.

The case illustrates how legal issues of parenting time and custody blend together and how important the location of the respective parents can be if they cannot agree on these issues and are forced to litigate them in court.

The case can be found at the following link: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20080408_C280622_31_49O-280622OPN.PDF

Republican Criminal Defense Attorneys?

Recently, I came across a humorous query posted on the listserv of the State Appellate Defender Office: is it possible for a criminal defense attorney to be a card-carrying Republican? The short answer is: no way. There are, however, some notable exceptions to this general rule.

While it is largely frowned upon for a Republican attorney to represent persons charged with crimes, exceptions include the lawyer's friends, white-collar criminals, some misdemeanants (depending largely on the relationship of the defendant to the attorney's law firm), business associates, "golf buddies", and in rare instances, a golf buddy's spouse or kid.

An unspoken rule among Republican attorneys is that you should not take more than one criminal client per quarter and fewer than 4 in a fiscal year. If you're unable to persuade your client to plead, then you should definitely not be the lawyer actually trying the case to a jury, as that's really pushing it.

Atonement for the occasional criminal defense can be achieved by maintaining prosecutorial government contracts. Prosecuting civil infractions for municipalities, for example, or serving as a special assistant attorney general, insulates one's credentials from the corrosive effects of defense work.

Some leeway is granted among Republican attorneys for the former county prosecutor. Former prosecutors (who usually lean right) regularly infuriate veterans of the criminal defense bar by sweeping into a county judge's chambers after "switching sides" and walking out of the courtroom with choice appointments, unparalled staff access, and with their party credentials intact.

Opportunities are out there for Republican attorneys to roll with the criminal element and maintain their street cred. As with any area of law, they just have to select the client carefully.

Violation of Probation on an MIP Conviction should not result in Jailtime

Recent discussions between criminal defense attorneys comparing notes about district court judges in Oakland and Genesse counties have revealed that many of their MIP clients are subjected to jail sentences when they subsequently plead guilty to a violation of probation. The law prohibits any jail sentence for a minor that pleads guilty to possession of alcohol. In recent years, some district court judges have gotten around this prohibition by citing the defendant on a "contempt of court" charge, a misdemeanor that carries up to 93-days in jail. Other judges have simply ignored the law, tossing the probation violators in jail despite the protestations of their attorneys.

As the practice has spread among some judges in both Oakland and Genesse counties, members of the Criminal Defense Association of Michigan have began to organize a coordinated defense to the wrongful jailings.

If you or your family member is faced with a violation of probation charge and the underlying conviction was an MIP, contact a criminal defense lawyer before going to court. You could very possibly save you or your family member some jail time.

Study Finds Correlation Between ADHD, Divorce and Alcohol

A recent study referenced in the Washington Post suggests the divorce rate among parents with ADHD children is almost double from the norm. The study also correlates an increase in alcohol consupmtion for the same group.

This conclusion will come as no suprise to any parent or professional that has dealt with this disorder. Difficult children, such as those that are hyperactive, inattentive and oppositional, often drive a wedge between their parents; particularly when those children reach the mid-elementary school years.

The study, published late last year in the Journal of Consulting and Clinical Psychology, is covered in more detail in the attached article from the Post. Click on the link below:


http://www.washingtonpost.com/wp-dyn/content/article/2009/03/02/AR2009030201787.html?sub=new

Macomb Woman Attempts Divorce from her Grave

In a recent case originating from Macomb County, the Court of Appeals held that a woman scorned by her long-time, but absentee husband, could not effectively divorce him from her grave. In the case, the wife became ill and died of breast cancer after nearly three decades of marriage. Although the long-married couple was estranged at the time of wife’s death, they never filed for divorce or legal separation (known as separate maintenance in Michigan).

Because her husband had abandoned her during the 18-months she battled breast cancer, the wife executed a trust and will which left him nothing and appointed her sister as personal representative of her estate. When she died in 2002, the wife had spent years maintaining the “marital home” as well as a vacation property near West Branch. She paid all the property-related expenses without contribution from her husband.

Six-months after his wife’s death, the husband filed a petition in the Macomb Probate Court to set aside his deceased wife’s will and trust and to remove the cloud his wife placed on their properties. In the resulting court battle, the wife’s sister, relying almost extensively on out-of-state caselaw, asserted equitable contribution and abandonment theories, arguing that allowing husband to posthumously reap the benefits of his deceased spouse’s labors amounted to an unjust enrichment.

The Court of Appeals was not persuaded, deciding that a married person cannot execute an estate plan that effectively acts as a “posthumous divorce”. The appellate court’s ruling keeps the sanctity of marital property intact and declined to “invent a claim” from which a decedent spouse can reach her surviving husband from her grave.

We are interested in what you think about the Court of Appeals ruling. Please post your comments.

Oakland Circuit's Most Prolific Jurist Retires After 32-years on the Bench

The official word is "retirement". Tell that to his law clerk, seen recently busting down the corridor of the Oakland Circuit Courthouse at a brisk clip, no time to talk; or to the attorneys on an aging civil case hanging around the docket that was just re-assigned to the new "visiting judge".

As long-time circuit judge Steve Andrews' retirement loomed toward the end of last year, I wondered how he would fare in retirement. His outstanding research attorney has been reassigned to another judge, as have his courtroom and chambers, but his presence remains a strong force in the Oakland Circuit Court.

Along with fellow-retiree Fred Mester, Andrews is the newest "visiting judge" at the Oakland Circuit Court. Visiting judgeships are common for judges forced to leave the bench via the age-limit statute, sometimes prematurely. They are often assigned to the court's unruly PPO dockett.

A visiting judgeship, however, means something different to Judge Andrews. In his first month on the visiting judge docket, he knocked-out five jury trials, including a medical malpractice trial and a complex contract matter. Thus, history will record Steve Andrews as Oakland Circuit's most prolific jurist for the sheer number of his completed jury trials. Using this criteria to measure his public service, Judge Andrews has no peer.

During his tenure as a Circuit Judge, Andrews presided over a constantly advancing docket. He had absolute control of his courtroom, insisting that lawyers be prompt and, above all else, prepared. Although his sentences were sometimes viewed as harsh, such criticism did not come from crime victims. Judge Andrew's courtroom was a place where justice prevailed.

In the future, some judge may eventually unseat Andrews as the trial champion of Oakland County, but they would be well advised to take the bench at a very young age. In the meantime, if you are an attorney with an old case on the Oakland Circuit dockett, you might just want to want to dust off your file and get it ready for trial in case it gets assigned to the "visiting" judge.

International Marriages Disintegrate with Global Economy

International marriages that often thrive with money, may wither as the global recession takes hold and deepens. Divorce lawyers in metro-poles such as New York City and London are noting an upswing in their international clientele.

International marriages and their attendant transnational families complicate the divorce process, especially when marital assets are in a country other than the marital domicile, and one or both spouses come from a pair of "old countries". In many such families, one or both spouses are professionals. Their marital estate, even if modest, is spread out. Oakland, Macomb and Wayne Counties all have their share of international marriages due to a significant Arab population and the presence of multinational corporations in the automotive industry.

With layoffs in all sectors of the automotive industry, some of these marriages are predictably coming under stress. Others are failing. When this occurs, one of the first issues is where, which country, to file the divorce complaint. Some countries have legal systems that favor one gender over the other on a series of common issues such as property rights, custody and parenting time.

For example, Michigan has followed California in requiring full and complete disclosure of all assets. Japan and Austria, on the other hand, require very little disclosure of a spouse's property interests. While Japan favors quick "no-fault" style property divisions, convenient for the often-male members of the international elite, the Japanese courts are resistant to fathers seeking joint custody and equal parenting time. Japanese family law reflects the more traditional Japanese culture in this regard.

One of the more significant issues likely to arise in an era of decline in the nuptial-international, is parental abduction and removal of the minor children to third countries. Both the United States and the U.K. have reported increases of international parental abduction. According to The Economist magazine, the kidnappers are the children's mothers in 68% of the cases. According to the Hague Abduction Convention (an arm of the World Court in the Netherlands), the U.S. currently has the largest number of incoming and outgoing abduction cases, followed by England. An overwhelming majority of these cases involve transnational families.

Parental kidnappers believe they are merely getting the drop on their spouse by "forum shopping" the available legal systems; often feeling entitled to assert preemptive custody along with their choice of law. Lawyers in Detroit, Chicago, New York, Miami and elsewhere, are specializing in advising clients on issues of choice of law and international comparative family law. Divorcing spouses are counseled on which legal systems provide the most benefit, given their particular circumstances.

Over the past 20-years, legal developments in the United States have reshaped the contours of the international marriage. Chief among these developments has been the passage of a series of uniform statutes addressing issues such as adoption (the Uniform Adoption Act in 1994), child support and custody (the Uniform Child Custody Jurisdiction Act in 1999, and the Revised Uniform Reciprocal Enforcement of Support Act in 2001), and abduction (the Uniform Child Abduction Prevention Act in 2007).

Intercountry adoption is also a fast-developing area of international family law regulated by a Hague Convention and with guidelines currently under development. One of the cutting-edge problems here is the adoption of children without parents from less developed countries and the human rights concerns such adoptions raise.

Developments in reproductive technology and medicine have also given rise to international disputes involving child custody and property rights. For example, infertility clinics in India or China are not bound by U.S. regulations and can thus attract large numbers of clients from the U.S. and Europe desperate to have children. If disputes arise among the genetic contributors (biological parents, surrogates, etc...) and the "rearing parents", international treaties are ill-equipped to resolve the dispute, or non-existent.

Depending on the country of origin and the respective nationality of the spouses and children, there are a wide variety of options in international family law. One of the first issues is the selection of the forum state pursuant to the legal principles of "choice of law". At every stage, the interests of the minor children must be considered. Parents and interested third parties should take care to keep the interests of the children at the forefront of their deliberations and refrain from resorting to drastic measures such as a preemptive custody move based on “choice of law” concerns. The world is a very big place for a child. All children deserve both parents to help them find their way.