The Oakland Press Blogs: The Law Blogger: Boyfriend's Background Check Refusal is Just Cause for Custody Modification

In this modern day, it is very important to know with whom your children are associating. Danger lurks everywhere, including in the home next door, down the street, across town, or across the country.

Earlier this week, the Michigan Court of Appeals issued an opinion for publication [meaning that it now binds all lower courts] in a case from the Newago County Family Court. The case, Mitchell v Mitchell, holds that a Mother's refusal to abide by a family court's ruling to provide a background check on her live-in boyfriend is "just cause" to modify custody.

In Mitchell, the parents divorced and Mother eventually moved to Texas. Apparently, Mom's boyfriend was instrumental in the all-too-common process of alienation directed at the non-relocating parent. Mom did not fire-up the Skype and botched a few Texas to Michigan trips, as ordered by the family court at the time it granted leave for the relocation.

Most importantly, however, Mom and her boyfriend refused to provide the court-ordered background check. This proved fatal to her custody case and now, Dad has the kids. What a mess.

From time to time, our law firm gets cases where one parent, in moving on to other relationships, exhibits risky behavior relative to the selection of his or her live-in partner. In such cases, what can the other parent do; just sit back and wait for the damage to be done?

Now, thanks to the published Mitchell decision, one safeguard that can be requested is for the family court to order a background check of the individual. If used properly, this device will provide some information that would otherwise be unavailable.

A competing concern is, of course, the privacy of the individual. This ruling can, and no doubt will, be used offensively and improperly as often as it is used in the fashion intended by the 3-judge panel of the Michigan Court of Appeals.

All we here at the Law Blogger can say about that is: is he or she really worth it? Best to err on the side of caution for the safety of the children.

In our practice, we routinely counsel clients to take it slow when it comes to introducing young children to the new "significant other". Divorce is unsettling enough; the new person is most often seen by the kids, even when nice, as a threat. They may repress their anxiety in order to gain approval from the relocating parent.

What a mess we can make right in our own kitchens.

The best defense to all of this is to exercise good judgment and to err on the side of putting the kids first; something that Kate Mitchell was found not to have done. In so doing, she has unwittingly handed us family law attorneys a defensive weapon which can be wielded in the protection of the children.

Post Note: Since this post, I learned that my friend and colleague here in Oakland County, Daniel Victor, has been hired by Mom, Kate Mitchell, and has filed an application for leave to appeal to the Michigan Supreme Court. Great case to land on appeal. Of course, an opposing brief was filed by Dad's family court lawyer, Melissa K. Dykman.

While no stranger to the Supreme Court Justices, Mr. Victor will have a tough road convincing four of them to reverse the Court of Appeals. Not so sure I'm wishing him luck on his effort(s) in this one either folks...