Blogs > The Law Blogger

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.
For more information email: info@clarkstonlegal.com

Saturday, May 26, 2012

Convicting the Child Support Payor for Non-Payment

In June, the Oakland County Bar Association has asked me to present to fellow lawyers on the topic of felony child support cases.   Like any area of the law, what at first appears simple, really a matter of strict liability, takes on complexity once you start looking at the details.

Over the past ten years, prosecutors began addressing the problem of unpaid child support in Michigan, taking cases from the family courts, and charging the errant payors with felonies in the circuit trial courts.  As a result, millions of dollars have been collected that otherwise would not have been paid.  Also, dozens of payors, both Fathers and Mothers, have gone to jail; some to prison.

During this wave of prosecutions, many delinquent payors have challenged the constitutionality of Michigan's felony non support statute on the basis that it essentially creates a "debtor's prison".  The "inability-to-pay" defense, viable at one time, was removed by the legislature with the passage of the most recent version of the statute in November 1999.

The constitutionality of this version of the statute, particularly the removal of the "inability-to-pay" clause, was tested a few years back in the People v Meldman case; a case from Oakland County.  Defendant challenged the family court's findings on the imputation of his income, and challenged the felony child support statute on its face.  Conviction affirmed.

The Law Blogger covered the basic ground on this subject some years ago, in these earlier posts: 02/15/2010 and 12/14/2010.  These posts covered the UM Law's innocence project and their challenge to the felony child support act's constitutionality.

The case we've been waiting for, People v Likine, also from Oakland County, was fully briefed for the Michigan Supreme Court last April [including amicus briefs from both the Prosecuting Attorneys Association of Michigan, and a powerful group of Michigan Criminal Law Professors], argued in October, and the High Court's opinion deciding the case is expected any day now.

Likine deals, in astounding depth, with the bed-rock constitutional issue of whether you can be jury tried for a crime involving non-payment, without being able to put on a defense of an inability, or even an impossibility, to pay the court-ordered obligation.  Related to this issue is whether a defendant can collaterally attack a statute, introducing evidence from the family court [on issues of payment history, income levels and availability of funds] into a court of general jurisdiction: i.e. the Oakland County Circuit Court.

One more recent development since that post is last June's SCOTUS decision in Turner v Rogers, holding that a child support payor facing incarceration for non-payment is afforded legal counsel under the Sixth Amendment of the United States Constitution.  A rare example of SCOTUS reviewing a state court decision with roots in family law jurisprudence.

Great stuff.  Stay tuned and we will be sure to convey how the Michigan Supreme Court views all this.  Hopefully they will issue their Likine decision prior to the OCBA presentation to my colleagues...

www.waterfordlegal.com

info@waterfordlegal.com





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Monday, May 21, 2012

Your Digital Estate Plan

Do you ever wonder what becomes of a deceased person's Facebook profile?

Increasingly, folks are compiling several digital profiles on the ever-popular social media sites now embedded into the Internet.  Many of us have thoroughly fleshed-out these electronic profiles.

Well, what happens to your digital persona when you die?  How do we assist our family members with the dismantling of these often extensive robust electronic profiles?

Below are examples of typical digital "assets" contained in an average modern person's legacy:
  • Social media profiles such as Facebook, LinkedIn, YouTube and a host of others
  • Professional profiles [I maintain at least a half dozen and counting]
  • Bank accounts, loan accounts, mortgage accounts
  • Investment accounts such as eTrade or Ameritrade
  • Uploaded photos
  • Uploaded articles
  • Education accounts, including alumni account profiles
  • Gaming sites
  • Email profiles and communications [Most people have at least two email accounts these days.]
  • Digital media accounts
  • Cloud computing profiles or accounts
  • On-line store accounts, particularly those with a social media angle such as iTunes and Amazon
There are other examples, to be sure.  Any site that you've had to log-on to, create a profile, and post content, or place orders, is a component of your digital inventory.  That's a lot to keep track of...

If your situation is typical, you have some similar passwords, or a theme running through your accounts, but due to the specifications of the particular site, most of your usernames and passwords are different.  Also, you probably maintain a list of your names and passwords somewhere; perhaps on your computer.

There are, of course, some web-based products and services that assist with the management of your digital profile:
The first step in managing your digital legacy is to list all of your on-line "assets" and list the usernames and passwords associated with those accounts.  You will be saving a family member or friend untold hours on the phone, or on the computer, when they try to figure it out in your absence.

Once you have compiled your all-important digital inventory, the next step is to reference this list and attach it to a power of attorney document.  This will allow your attorney-in-fact to manage your accounts in the event of your temporary absence or incapacity.

Ditto to your will; include an instructional paragraph referencing and attaching your digital inventory.

If no instructions are provided, Michigan does not yet have laws governing the posthumous management of a person's on-line "assets".  So far, only Oklahoma and Idaho have such laws, with Nebraska not far behind.  [Where is California in all this?]

Therefore, if you die "digitally intestate", what happens to your digital profile is up to the particular service provider.  For example, Facebook has long taken the position, based on its robust operating agreement that you agreed to when creating your account, that FB owns all of your posts and content.  When you die on Facebook's watch, they memorialize your account; restricting views and posts to friends and family.  Also, the account is closed if requested by your next-of-kin.

Some folks, however, do not have any next-of-kin.  What then?

Here are some options for the proactive among our readers.  Some posthumous services will send an email composed by you, or by your designated personal representative, to a designated list of contacts.  Here is a sample list of such services:
Call it another characteristic of our modern life; once we are gone, our digital profile lives on for a time.  In this fast-paced era, however, it's amazing how fast such a profile will become outdated.

Taking the right steps will allow you to manage that profile from the grave...







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Thursday, May 17, 2012

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...

www.clarkstonlegal.com

info@clarkstonlegal.com



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Saturday, May 12, 2012

POTUS and Same-Sex Marriage

This week, President Obama [POTUS] grabbed big headlines by endorsing same-sex marriage as a personally held belief.  He admitted to changing his views on the subject [again] after discussing this issue with his wife and daughters, and perhaps, after Vice President Biden threw down the gauntlet, esssentially forcing the issue by asking, publicly, "what's wrong with it?"

Another Biden gaffe; or a script from the West Wing?  Hard to tell when the Chief keeps changing his position on the issue...

Meanwhile, as this post is being written, the GOP nominee for November's presidential election, Mitt Romney, is preparing to give 39th commencement address at Liberty University; the Lynchburg, VA, conservative Christian college founded by the Reverend Jerry Falwell in 1971.

You have to wonder if Romney will take the opportunity to either: criticize President Obama's newly-held endorsement of the freedom to marry between two consenting adults; or to espouse his own view that a marriage must be between a man and a woman; as stated in the Bible and codified in the DOMA [the federal Defense of Marriage Act, ironically signed into law by President Clinton back in 1996].

Neither man has a choice at this point; the political battle lines are drawn.  Obama cannot alienate a solid chunk of his core supporters by holding any other view than an unequivocal support of same-sex marriage.  Similarly, if Romney, in addressing the marriage issue today, does not roundly criticize same sex marriage, he is done among moderate and conservative Republicans.

Executive branch politics aside, however, there is a group of interesting cases percolating through the federal court system on their way to the SCOTUS.  These cases involve challenges to the DOMA or to state laws that define marriage to the exclusion of same-sex couples.

We here at the Law Blogger have been following this issue over the past few years; here are some of our earlier posts tracking the subject:
There are three cases in the same-sex marriage pack that seem to be headed toward SCOTUS for their ultimate resolutions; two of those cases present direct constitutional challenges to specific provisions of the federal DOMA; the other case [Perry] challenges the constitutionality of a state law ban on gay marriage.

Here are the Justia links for these leading cases:
Pedersen, et al -v- Office of Personnel Management  [pending in Connecticut, but involving couples from that state as well as Vermont and New Hampshire]; 

Gill, et al  -v-  Office of Personnel Management  [post-post-note: 1st Circuit declares DOMA, section 3, unconstitutional, case will surely go to SCOTUS]; and, of course,

Perry  -v-  Schwarzenegger  [9th Circuit Court of Appeals recently -Feb 2012- affirmed lower court's ruling  overturning California's ballot proposal ban on same-sex marriage].

Executive branch politics on this state-law issue will, of course, continue to play out in the media.  The same-sex marriage issue could be the 21st Century version of the "abortion" bell weather with regard to a presidential candidate's personally-held beliefs.   

Legalities of same sex marriage, however, will continue to be determined on a state-by-state basis, with the larger constitutional issues being determined by the SCOTUS, not by what a sitting President thinks.  

On the other hand, Perry or one of the DOMA cases will most likely reach the SCOTUS at some point during the next presidential term.  Therefore, the next President's opportunity to appoint a justice to the closely divided High Court will have a significant impact on the ultimate resolution of the issue.

Constitutional law experts compare this issue to the one decided by the High Court in the 1967 case of Loving -v- Virginia, striking Virginia's ban on inter-racial marriage as unconstitutional.

All we can do is to stay tuned on this...








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Wednesday, May 9, 2012

Medical Marijuana: The Feds Strike Back

Even as Connecticut became the 17th state to legalize marijuana for medicinal purposes last week, the DEA continues to bring the heat on some of the more visible pot crusaders across the country.  The latest to be busted is Richard Lee of Oaksterdam University fame in Oakland, California.

Despite assurances from the U.S. Department of Justice early in the Obama administration that enforcement of the federal Controlled Substances Act would not be a law-enforcement priority, in April the DEA capped a mounting campaign to arrest dispensary owners across California, Colorado, and Montana.  Many dispensary owners claim to have received letters from the DEA threatening criminal prosecution if the businesses do not cease and desist.

What has changed since the Ogden memo of October 2009, when Obama's DOJ signaled it would leave marijuana enforcement to the states?

One explanation is that when it came to dispensing marijuana, medicinally or otherwise, some folks started to make money; big money.  This led to the DOJ's so-called Cole memo last spring, which sought to "clarify" the previous memorandum, and which provided a mandate to U.S. Attorneys to vigorously prosecute marijuana distributors and to "follow-the-money".

Strong voices in the pot lobby are crying foul, suggesting that operators within the DOJ [particularly in California and Colorado] are acting on their own, ignoring the official White House script on this issue.  For their part, some of the medical marijuana states are seeking an end to this chaos; bi-partisan legislators from five of those states signed an open letter to President Obama requesting that the DEA not interfere with their respective medical marijuana laws.

Well folks, because this is a presidential election year, don't look for the Chief to weigh in decisively on this one anytime soon.  For a glimpse into the mind of the voting public, you can peruse the 100+ comments to an article in the Economist on this subject.  Some excellent points on both sides of the issue are made in the forum.

No wonder Mr. Lee is calling it quits out in California at Oaksterdam; he obviously doesn't want to do a dime in the federal penitentiary as all this gets sorted out.  We here at the Law Blogger will, of course, keep you posted; we've been tracking this issue since 2008.

www.clarkstonlegal.com

info@clarkstonlegal.com

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Tuesday, May 8, 2012

When Dementia Renders Your Spouse a Stranger

Richard Webber & Adele of Grey's Anatomy
Dementia, always a sad development for any family, is particularly cruel in long-term marriages where one spouse is afflicted, and the other is left to pick-up the pieces.  In such cases, marriages are often stressed to the break-point.

This issue has received national attention lately, courtesy of the hit television series, Grey's Anatomy, where Dr. Webber's character is losing his wife, Adele, to Alzheimer's.

Alzheimer's disease is the most common form of progressive dementia.  Recent scientific findings, however, suggest that there may be many sub-types of dementia.

For example, frontotemporal degeneration [also known as Pick's disease] manifests itself much earlier than Alzheimer's and progresses faster.  Frontotemporal degeneration is believed to afflict between 50-60 thousand adults in the United States, compared to the 5 million Americans afflicted with Alzheimer's.

Frontotemporal disease is particularly threatening to a marriage due to the swift onset of symptoms which attack a spouse's personality directly; not just with the onset of memory loss, as in much older Alzheimer's patients.  The non-afflicted spouse often feels ignored, snubbed or maligned because of the most common characteristic of the disease: silence.

Like many diseases, frontotemporal degeneration progresses differently in individuals, taking on a life of its own.  Most cases feature a prominent and swift deterioration of the patient's overall personality; a complete breakdown in the patient's ability to communicate with and care about others.

Obviously, the patient's ability to hold down a job, or to hang onto their marriage, is put to the test.  This is because frontotemporal degeneration attacks the frontal temporal lobe of the brain; the region responsible for decision-making and judgment.  The frontal lobe actually shrinks.

Sometimes, one disease is mistaken for the other, leading to confusion among the family care providers and a confusing series of hospital stays, doctors visits and testing.

Dementia, in general, highlights the need to secure a solid estate plan early in a marriage, before the onset of any incapacity.  Once a dementia sets in, an individual could lose their mental capacity and have a guardian and conservator appointed to manage their affairs.  While this fiduciary could be, and usually is, a family member, no estate planning is possible while a loved one is under such legal incapacity.

I you or a spouse have been diagnosed with dementia, here are some local support groups that may be of use:
In the meantime, if you are enjoying the fruits of good health, do not take it for granted.  Be proactive and get an estate plan executed.

                                                           info@clarkstonlegal.com

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Tuesday, May 1, 2012

Practicing Lawyers Embrace Social Media

This Thursday, I will be presenting in Seattle, WA to a group of lawyers from around the country on the topic of social media.  Not considering myself an expert in the field, I was surprised to get the invitation to join an esteemed panel.

Here's the catch; the good folks at Avvo.com, a website designed to interface consumers of legal [and health care] services with the providers of those services, wanted a panel made of practicing attorneys; not just the usual "social media marketing" consultants.

Lawyers are not just dabbling in social media these days.  For most, getting connected and developing a robust electronic profile is now a "catch-up" exercise.

So I will be addressing conference attendees on how, as a busy practicing attorney, I have utilized social media in my law practice.  Along with the other panelists from around the country, I will be sharing my experience with utilizing social media to get our law firm message out to our target  audience.

Thanks, in part, to the followers of this blog, I can point to sustained search results placing us near the top of hyper-local searches for legal services in Northern Oakland County.

As a preview to this presentation, I was interviewed by Colin O'Keefe [from the Seattle area] of LXBN TV.  Here is a link to Colin's interview.

www.clarkstonlegal.com

info@clarkstonlegal.com

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