Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding.  This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise.  Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property.  The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases.  Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar?  First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations.  Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer?  The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content.   Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.

So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.

Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors.  Therefore, the state regulation of such speech would be subjected to a reviewing court's "strict scrutiny".

Under such a standard, California's video game regulation did not survive.  The SCOTUS decision affirms the 9th Circuit's opinion, reaching a similar conclusion that, like books and plays before them, video games are a valid and recognized form of free expression in our society, cloaked with all the protections of the First Amendment.  Such free speech protections do not vary with a new and different medium of communication.

The High Court was unpersuaded by California's rationale that interactive video games posed a special problem by the child's participation in the outcome of the violence depicted on the screen, and therefore required content-based restrictions.

This is one of those "in your face" moments of Americana.  It seems that, if left to our own devices, our multi-faceted talents and diverse commerce-based culture will unerringly produce this stuff for mass public consumption.

Some of the legistlators on the left coast tried to regulate the content of such expression, at least where minors were concerned.  Well, our babies gotta grow-up sometime; why not inject them at an early age with a serious dose of interactive urban crime or intergalactic slaughter. 

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Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers.  Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

 The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card.  The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy.  An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled.  Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database.  Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

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New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act.  The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics.  This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee.  For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period.  The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Here in Michigan, there are a pair of tie-barred bills in the Senate that were recently referred to the Judiciary Committee.  The bills propose required counseling on the effects of divorce and a longer pre-marital waiting period or premarital counseling.

Many divorcing couples do not have these issues.  Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one.  On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

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As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Here is a piece of scholarly criticism of this SCOTUS decision in the blog Concurring Opinions that has already shown up in the blogosphere.

Bottom line: pay your child support obligations.

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Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

 

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case.  The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details.  For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point.  Physical custody, however, is a more contentious battlefield.  The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment.  Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time.  One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents.  Focusing on the parenting schedule rather than the custody label is the real trend at work here.

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Consumer focus groups often characterize attorneys as overpriced. Combine that conclusion with a lawyer's frequent arrogance, and the overall experience of purchasing legal services can be disappointing.

A recent study cited in The Economist noted that so called “Big Law” [America’s 250 largest private law firms] shed 8% of its work force over the past two years. Many top-tier law school graduates cannot find work in their chosen field.

Local general practitioners have also seen the effects of a tight market for legal services amidst a glut of service providers. Fortunately for them, appearing before the local magistrate or county trial judge cannot be outsourced to India like an e-discovery document review.

Nevertheless, globalization, digitization, and cloud-based data sourcing are driving fees for all legal services downward. Information is coming to the people at a bit-torrent pace. The client is forcing the attorney to re-think how service is measured and purchased.

Although professional pundits have been forecasting the death of the billable hour for the past two decades, it appears to finally be happening. Value-based alternative fee arrangements such as flat fees, performance contingencies, and multiple transaction discounts, are commonplace among competitive firms.

Survival in such an industry depends on a client-focused approach. Adding value to the client’s case, always important, is now imperative.

No one wants to overspend on a lawyer.  Therefore, prior to hiring an attorney, do some research on the Internet; check the reviews; check the electronic profile.  Your digital due diligence will increase the likelihood that your dollars will be well spent.

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Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard.  Sometimes, however, the jury gets it wrong.

When that happens, you have a constitutional right to appeal.  Most convictions, statistically, are affirmed at the intermediate appellate level.  From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.

The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.

Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States District Court.  Hopefully, your state court appellate attorney had the wisdom to "federalize" your brief in the intermediate state appellate court because if not, all your constitutional issues are deemed waived.

If the Habeas petition is denied in federal district court, as most are, there is a constitutional right to appeal even further, to the United States Circuit Court of Appeals.

The United States Supreme Court is the end of the road.  A petition for a writ of certeriorari to the SCOTUS is, well, best of luck to you....

Most would agree that the incarceration of wrongly convicted individuals is one of the true horrors of our criminal justice system; a less than perfect system that sends people to prison from time to time who did not commit the crime for which they were convicted.

The State Bar of Michigan's blog recently posted some fresh literature addressing this troubling subject.  We think it's worth a look.

Over the weekend, for example, the Detroit Free Press profiled its first in a series of articles detailing a West Bloomfield family's plight following criminal sexual conduct charges.

In addition to the case profile in the Freep, a more detailed study by the Campaign for Justice and the Michigan ACLU is included in the post, tracking 13 wrongly convicted individuals in Michigan; this piece also impugns Michigan's court-appointed counsel system.

The SBM blog post also includes a link to Reason Magazine's nation-wide study featuring UM Law Professor Sam Gross who concludes that wrongful convictions are far more common than most of us believe.

We are not sure what the solution is to this problem.  Many folks in our free society seem hell-bent on breaking the law in major ways, committing "crimes against the person", to use a classification phrase from Michigan's sentencing guideline manual.  No doubt, prosecutors often have a full plate.

But when the accused is innocent, we all lose some of our individual rights, liberties and freedoms.

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There is a bill pending in the Michigan Senate which, if passed, will require bars and restaurants that serve alcoholic beverages to make self-operated breathalyzers available to patrons.  The bill, sponsored by Senator Bert Johnson of Highland Park, was submitted to the Senate Committee on Regulatory Reform on June 1, 2011.

Presumably, the legislative wisdom associated with such a law would be to provide bar patrons with some immediate feedback relative to their blood alcohol level.  There is a large body of published analysis, however, impugning the accuracy of these devices.  For example, if any alcohol or a variety of other agents are present in your breath sample, the results will be distorted.

One advantage of this law is that if patrons discovery they are "Super Drunk", with a blood alcohol in excess of .17, they would presumably not risk the enhanced penalties by venturing onto the roadways.

In a court of law, the preliminary breath test (PBT) results generated from such devices are not deemed admissible in court.  Like field sobriety test results, the PBT can generally only be used to demonstrate whether there was probable cause to support a drunk driving arrest.

These machines cost anywhere from $250 to $950.  Every bar, restaurant, or entertainment venue will have to purshase a series of these devices.  Resources will be devoted to operating and maintaining the breathalyzers by the waitstaff at each speakeasy.  Liability steming from this legislative requirement will result in lawsuits.

On the other hand, the more awareness that is raised about drinking and driving, the better.  The question is whether the costs imposed on restauranteurs, then passed on to patrons, is worth it.

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John and Tanya Skelton
in Lenawee County Circuit Court

I remember having a bad feeling about this story as it broke over the news during the Thanksgiving weekend last year.  Three young boys missing; clueless father.

Fast forward seven months and now we have the Skelton divorce in the Lenawee County Family Court making headlines.

In those intervening months, the three Skelton brothers have not surfaced.  For his part, their father simply states that he gave them to "an [unnamed] organization".

He stuck to this story, forcing his wife into a divorce trial where he represented himself in the proceedings before family court Judge Margaret Noe.  Accordingly, Judge Noe awarded custody, such as it is under the circumstances, to thier mother, Tanya Skelton.

As each month passes without any trace of the boys, the case grows ever colder.  The Lenawee County prosecutor has charged John Skelton with parental kidnapping; a capital offense with a potential life sentence. 

Regardless whether this case highlights the depth and horrifying scope of mental illness or, perhaps more ominously, it is a barometer of our post-modern culture, there will be no happy ending to this carnival side-show.

Only in America does a depraved father, who [at best] gave his three sons away to unknown individuals, seize headlines by insisting on a divorce trial where he represents himself; for the headlines, no doubt.  Alas, even his suicide attempt was botched.

Stay tuned, as our next debacle can only be moments away.

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They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer.  The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail.  One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs.   Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts.  If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense.  Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem. 

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC.  On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer.  If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

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