State Senator Ron Jelinek (R - Berrien County) has introduced a bill in Lansing to repeal adultery as a crime. The bill, which has a companion in the Michigan House, has been referred to the Senate Judiciary Committee. The bill, expected to be presented for the Governor's signature sometime during this legislative session, could become law in 2009.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute was codified into the penal code back in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case coming out of Senator Jelinek's own Berrien County. The case, People v Hendrickson, stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union can supply the requisite evidence to support a conviction.

In the here and now of 2009, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

Senator Jelinek's proposed legislation seeks to align the penal code with the unfortunate reality of post-modern society. Immoral, but all to common, adultery has always posed the biggest threat to the traditional family unit. Adultery is a rarely charged felony, however, thus, it's persistent inclusion within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family courts.

In a highly controversial ruling from the Iowa Supreme Court, same sex couples received a green-light for marriage when a state law banning such marriages was determined unconstitutional. In a 63 page decision (the first 6-pages of which listed a series of opposing amicus groups that had legal representation in the briefing of the case), the Iowa Supreme Court held that the state law banning gay marriage violated the Equal Protection clause of the U.S. Constitution by treating same-sex couples differently than other couples without a sufficient government interest justifying the classification.

The full decision of the Iowa Supreme Court is attached in the link below:
http://graphics8.nytimes.com/packages/pdf/us/20090403iowa-text.pdf

The case moved the battle over same sex marriage from the coastal metropolitan centers of the U.S. to its heartland. To date, only Massachusetts and Vermont allow same sex marriages; California did so for about six-months until that law was repealed by voter initiative in the last election in November.

The case also comes on the heels of an unusual ruling by the Michigan Court of Appeals which allowed a same-sex couple to present evidence to a family court judge relative to the partners/parents parenting time requests once their homosexual relationship terminated following their mutual adoption of three children. That case, itself the subject of an entry in this lawblog, is discussed in the attached article from the Chicago Tribune:
http://www.chicagotribune.com/news/chi-ap-mi-gayadoption,0,2545662.story

One of the most significant (and often painful) events in divorce proceedings is when a parent seeks a change of domicile; a relocation of the children beyond the 100-miles allowed by the Legislature in the Child Custody Act. These motions often result in hearings that can be more traumatic to the parties and children than a full-blown divorce trial.

The losing parent often appeals the result thus, the Michigan Court of Appeals issues a steady diet of relocation decisions. The most recent is the case of Skeins -v- Mead and can be read in its entirety by clicking on the following link:

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/
20090317_C287426_49_287426.OPN.PDF

In that case, the parents shared joint physical custody of their child and exercised an alternating weekly parenting schedule. The evidence from the trial court in Crawford County was that each parent exercised their respective parenting time. The domicile issue arose, however, when the Mother re-married and her new husband located a better-paying job in Texas. The Mother claimed she too had employment prospects in Texas.

The Father in this case is employed by the Michigan National Guard. The evidence demonstrated he was a good father, engaged in the proper rearing and discipline of the child.

The Crawford Circuit Court nevertheless found that an "established custodial environment" existed with the Mother only, and granted her motion based on a finding that she satisfied the critical factors of the domicile statute by a "preponderance" of the evidence. The Father appealed the trial court's decision.

In reversing the lower court and remanding the case for an additional hearing, the Court of Appeals, recognizing the difficult economic times faced by all Michiganders, held that the lower court erred by failing to apply the "clear and convincing" evidentiary standard to not only the domicile statute factors, but to all the "best interest" factors set forth in the much broader Child Custody Act. The Court of Appeals also held that the lower court erred by concluding that an "established custodial environment" existed only with the Mother. An established custodial environment is a legal term defined by the court to mean:

if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian
and the child as to the permanency of the relationship shall also be considered.

Since the case is "unpublished", it does not have binding effect on local family courts faced with similar fact-scenarios. This case does, however, offer a solid guide for a parent opposing a relocation motion.