Ohio Judge Sylvia Hendon

Interesting custody cases involving transgender-minded teenagers are emerging from family courts around the country. Many of these cases pit the minor children against their parents, and bring grandparents into play.

On Friday, an Ohio family court ruling modified custody of a transgender-hopeful teenager, terminating his parents' rights and awarding custody to his maternal grandparents. Hamilton County Juvenile Court Judge Sylvia Hendon was moved by the high school student's desire to begin hormone therapy; the first step to transforming from the male to female gender.

In this case, known as In re: JNS, the teenager disagreed with his parents about whether he could begin hormone therapy. Eventually, things became so bad at his home over the past year, the teenager reached out via email to a crisis hotline and was admitted to the Cincinnati Children's Hospital. 

From there, the teenager provided details of his home life and mental condition to doctors. The hospital refused to return the teenager to his parents and the matter was referred to the family court.

Over the past two years, the teenager's parents struggled with their son's deep depression. When they sought treatment from Children's Hospital, they were shocked by a diagnosis of acute gender diaspora [strongly identifying with the opposite of one's biological gender]. 

A juvenile abuse and neglect case opened last February and several "best interests" hearings were conducted to determine where the boy should live until he emancipated into adulthood. Placement was an issue because the boy's parents objected to case plans stating that Children's Hospital "would like" to begin hormone therapy consistent with the diagnosis of gender diaspora.

Eventually, and according to the family court judge, inexplicably, the hormone therapy case plan was withdrawn after the abuse and neglect charges were dropped. From there, the boy was interviewed by the judge and a 4-day trial was conducted in January on the maternal grandparents' petition for custody.

During trial, proofs went in detailing the boy's struggle with severe depression; about acute gender diaspora; about the role of the Children's Hospital Transgender Program; and the methods of treatment such as psychotherapy, hormone therapy, and surgical intervention. Judge Hendon expressed concern in her opinion and order that the director of the hospital's Transgender Program testified that 100% of all the patients seen were considered appropriate for continued transgender therapy. 

Therefore, the order changing custody to the maternal grandparents -who purportedly support the 17-year old's transgender ideation- entered last Friday; the order contained a few conditions. First, the teenager will undergo a psychiatric evaluation by a professional not associated with the hospital's transgender program; and the boy's parents were awarded reasonable visitation and were "encouraged to work toward a reintegration of the child into the extended family."

In papers filed with the family court, the boy stated that he fears returning to his parent's home. He claimed his parents are in denial of his gender diaspora and have attempted to reprogram their son by reading passages from scripture for up to six hours at a time.

Judge Hendon carefully articulated her rationale for changing custody:

The parents acknowledged the child expressed suicidal intent if forced to return to their home. It is unfortunate that this case required resolution by the Court as the family would have been best served if this could have been settled within the family after all parties had ample exposure to the reality of the fact that the child truly may be gender nonconforming and has a legitimate right to pursue life with a different gender identity than the one assigned at birth.

The judge's opinion and order also called for legislation to provide a framework for courts to assess a juvenile's request to explore gender therapy. 

We here at the Law Blogger agree with Judge Hendon that many similar cases are "out there". Yet we are perhaps somewhat naively surprised that children have such acute sexual preference awareness and gender nonconformity alienation at such an early age.

Kids these days; they're growing-up fast, that's for sure.

Post #615
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The bodies are hitting the floor in family court this month. And the kerfuffle is over whether a parent can refuse court-ordered vaccinations of their minor children.

Here is a summary of the two media cases exploding in the Oakland County Family Court.

The Matheson Case

This morning Oakland County Family Court Judge Karen McDonald will again address a child custody dispute between parents concerning the vaccination of their children.  The custody hearing on-tap today is the second one this month to receive media scrutiny because the mothers are facing [or have done] jail time as a result of refusing the court-ordered vaccinations.

Lori Matheson opposes vaccination but her ex-husband is seeking to have their daughter vaccinated. Judge McDonald patiently listened to Mom's testimony about various childhood diseases for about an hour before continuing the hearing at a later date. She gave Mom until today to present DNA evidence that her daughter may be predisposed to what Mom characterized as "vaccination injury".

Here's the problem for Mom: when Judge McDonald swung-open her courtroom doors this morning to continue the hearing, there was a "suprise" witness; a physician prepared to offer testimony in "adversomics". Unfortunately for Mom, however, her attorney could not get her qualified as an expert witness on vaccinations under the court rules, much to the exasperation of Judge McDonald.

What Mom needed in this case is an immunologist; a physician specializing in the science dealing with the immune system and the cell-mediated and humoral aspects of immunity and immune responses; preferably in children at that. So the testimony from the physician Mom proffered was limited to that of a general physician on topics of general medicine.

We here at the Law Blogger, however, wonder whether any immunologists out there would actually testify about the benefits of adversomics. Can Mom find a competent expert witness in the antivaxx camp?

The Bredow Case

Earlier this month, Ferndale Mom Rebecca Bredow was warned by Judge McDonald that she now only had seven-days to arrange for the vaccination of her 9-year old son; the judge reminded Bredow that the vaccination had been ordered -through the consent of both parents- back in November of last year.

When Bredow showed-up in court last week reporting that the boy remained un-vaccinated, Judge McDonald sent Bredow to jail for a week, as promised and expected. For her part, Bredow said she would rather go to jail for her beliefs -both medical and religious- then give-in to something so contrary to those beliefs.

Well, Dad called bunk on Mom's position, asserting that she does not adhere to the tenets of any organized religion. He did point out to the court, however, that she and her husband both had medical marijuana cards.

Oakland County Circuit Court records show that Mom has been twice-charged with domestic violence against Dad. The Freep reports that, for her part, Mom has accused Dad of having a pornography addiction to which their son has been exposed. Yes, custody in this two year split has been messy and contentious.

Mom was sprung from jail yesterday, but then learned that not only was her son vaccinated against her wishes and pursuant to court order, she had lost physical custody of the child. The children temporarily live in Dad's home.

These cases now have the attention of the national press. When this blogger was traveling between courts today, the cases were each profiled on CNN radio.

So what is the general consensus about vaccinations? The American Academy of Pediatrics, the American Medical Association, the Center for Disease Control, and the American Osteopathic Association all recommend careful scheduled vaccination of children. In addition, there is informative literature available -to attorneys as well as the general public- from the CDC, the National Institute of Health and the Food and Drug Administration on this topic.

Often, the folks in the antivaxx camp tend to resort to anecdotal evidence compared to the rigors of scientific experimentation and testing.

So the question involved in both cases is how vaccination -and medical treatment in general- affects custody. Disagreements over health-related issues of the children are common among parents sharing joint custody.

Custody determinations are performed pursuant to the child custody act; the act contains "factors" on which family court judges make findings. The factor relevant to vaccinations states:

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

In these vaccination cases, where the parents disagree on the issue of whether their child should receive a vaccination, the family court judges face a tough decision. On the other hand, the parent in the antivaxx camp has a tough row to hoe from an evidentiary perspective.

We here at the Law Blogger will continue to monitor these cases and report their ultimate resolutions.

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Post #606

For some time now, members of Michigan's House of Representatives have proposed a sea change to the Child Custody Act. Last week, Representative Jim Runestad [R-White Lake] re-introduced a modified version of his seemingly perennial child custody and parenting bill.

The attempt, this time around, is known as HB 4691 and seeks to change the spirit as well as the label of Michigan's child custody law. Runestad's bill proposes a new title to the act: the shared parenting act.

In the spirit of this truly sea changing proposed legislation, Runestad seeks to introduce a presumption into the custody act: spending equal time with each parent is in the best interests of the child. A parent seeking to overcome this presumption would need to introduce "clear and convincing" evidence that such a parenting arrangement is not in the child's best interest.

Sounds simple and reasonable enough. Yet, whenever this bill gets re-introduced each session, it is usually met with firm resistance from the organized family bar.

The Oakland County Bar Association, for example, has published the following statement in opposition to the predecessor bill to this term's attempt:

Mandatory equal physical custody would make the best interest of the child factors irrelevant and treat all families exactly the same.  It would require that both parents live in the same school district or travel distances for schooling, require the children to move frequently from house to house regardless of the child’s preference and allow any parent, including convicted felons, to demand equal parenting time. Requiring a standard of ‘unfitness’ to be found by ‘clear and convincing evidence’ directly contradicts nearly all other provisions of the Child Custody Act.  This bill again attempts to remedy a perceived problem which, in fact, does not exist.  The current custody statute(s) and subsequent case law clearly permits a court to determine when it is in the best interest of a child that joint custody, or equal parenting time, be ordered.

This bill focuses on the needs of the parent instead of the needs of the children. 

The opponents and proponents of the bill will likely be heard over the next few months while the bill is debated in the state house's judiciary committee. In recent hearings conducted in May, Wayne County Judge Richard Halloran, the current chair of the state bar's family law section, testified in opposition to the bill. Judge Halloran, like many other family court professionals, is concerned about the effect the new law will have on the ability to address the intersection of child custody and domestic violence.

Representative Runestad, however, is now the chair of the Judiciary Committee. Perhaps because of this, many family law professionals have the sense that the proposed legislation has traction this time around and could become the new custody and parenting law of the state at some point during this legislative session.

Details are always devilish. The bill also constructs a wholesale replacement of the 11 statutory custody factors -long-used by judges- with a new set of factors for the family court to consider. These new factors, according to the bill's sponsors, are designed to ensure a child's meaningful relationship with both parents.

Our good friend and appellate lawyer, Scott Bassett, a lawyer's lawyer if there ever was one, openly wonders on the state bar's family law listserve why the legislature would jettison nearly 75-years of appellate court custody jurisprudence that has developed and honed the child custody act. Darn good question if you were to ask us over here at the Law Blogger.

Some of our more jaded colleagues have stated to this blogger that the bill does nothing to eliminate custody battles; it simply changes the look of the battlefield. Also, opponents say, it puts the parent's litigation agenda over the child's genuine needs and interests.

We will monitor the bill's progress and let our readers know what happens next. Meanwhile, we invite you to post your comments on this hot family law topic. 

Post script: meetings scheduled for Thursday, June 15, were postponed yesterday.

Update: 06/21/2017 - Runestad's bill passed the judiciary committee -no surprise there- and proceeds to the plenary house for further discussion after the recess. 

Post #594

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As the mobility of our population increases while the divorce rate creeps ever-higher, cases involving more than one country or more than one set of laws are becoming common.

Over the years our law firm has represented clients with connections to other countries. International divorces can become complicated, especially when there are minor children.

One such complication is the Hague Abduction Convention, a multi-lateral treaty in which the signatories agree not to allow parents to migrate with their minor children to non-signatory countries. Many countries, however, have not signed the treaty such as Pakistan, India, Egypt and Nigeria to name a few.

Other countries, such as Brazil, although signatory countries, have been determined by the U.S. State Department to be non-compliant, making the return of children very difficult in some cases.

When an international couple divorces, heartbreak can result. One parent typically returns to the country of his nationality or citizenship, sometimes with the children. When the couple divorces, the other parent, depending on the laws of the country, may not be allowed to stay in the country. The expatriated spouse may then be forced to leave the country without her children and with no viable manner of returning for the children.

In one case handled by our law firm, the Mother took a minor child with her on a "vacation" to her homeland, Egypt, a non-signatory country. When the vacation turned into 9-months, Father sent one of his adult sons to collect the boy.

The Mother moved to Egypt and the couple ultimately divorced. The family court judge ruled that Mother could not have custody of the couple's remaining minor child due to her residence in a non-signatory country. She has appealed the judge and we are awaiting the results from the Michigan Court of Appeals.

Another complication is that some wealthy families conduct forum shopping when an international couple calls it quits in a divorce. In such cases, the applicable law acquires critical importance in the determination of the property division.

Some countries have laws that recognize pre-marital assets and pre-nuptial agreements while others do not. The situation is similar to the laws of each of our 50-states. Texas, for example, has very restrictive alimony laws.

If you or a family member are involved in an international divorce, schedule a free consultation with our law firm to thoroughly discuss your options.

Post #581

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Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

The case gained world-wide media attention in the summer of 2015 when Judge Gorcyca held the three Tsimhoni children in contempt of her court and put them in jail for refusing to spend time with their father pursuant to her orders. Judge Gorcyca has since recused herself from the case, but her contempt ruling has burgeoned into a challenge to her professional standing as a family court jurist courtesy of the Michigan Judicial Tenure Commission.

Last fall, a special master made a series of findings regarding how Judge Gorcyca handled the matter; several of those findings addressed Gorcyca's decision to use her contempt powers. Based on the special master's findings of misconduct, the JTC has recommended Judge Gorcyca be suspended.

As is her right, the judge has requested a trial -really an oral argument- before the Michigan Supreme Court; the argument has been scheduled for March. Last week, the Michigan Supreme Court granted the request of the Oakland County Bar Association and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file an Amicus Curiae brief.

In the introductory paragraphs to the Amicus brief, the OCBA states:

It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.

The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

Characterizing the proceedings as a "disingenuous prosecution", the Amicus concluded, and we here at the Law Blogger wholeheartedly agree, that Judge Gorcyca, in the worst case, made an error of law; she did not transgress judicial norms or canons; she did not commit judicial misconduct.

At the heart of the Amicus brief is the rationale that if judges are subjected to punishment based on their substantive rulings, then a chilling effect will seep into the judicial fabric of our county court system like a damp cold fog. This chilling fog will distort the mechanism of justice for many families at the very time they need the county family court the most.

This blogger recently experienced the chilling effect of the Gorcyca case first hand. During argument in a parental alienation case, we represented the target parent, attempting to break through a stubborn wall of parental alienation. In her reluctance to enforce the terms of a previously entered parenting order, the family court judge specifically referenced Judge Gorcyca's case.

For all of these reasons, we here at the Law Bogger sincerely hope that the Michigan Supreme Court is persuaded by the OCBA's amicus brief. Errors of law belong in the Court of Appeals, not before the Judicial Tenure Commission.

Post #577

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Normally stealthy, the Detroit-based Cryonics Institute was in the news world-wide last month. A controversy regarding the remains of a London teenager crossed international lines in a dispute that combined high-profile custody litigation with the cryopreservation debate.

The teenager, unidentified because of her age, suffered terminal cancer and expressed her wishes to be cryonically preserved after her death. She hoped that a cure would someday be discovered for her cancer. Her divorced parents were unable to agree on the process and the matter was resolved in the family division of the British High Court.

So long as the custody dispute raged-on between the teenager's parents, the child's preference regarding cryonic preservation was also a contested issue. Finally, when her cancer became terminal, the child's preference was honored by both of her parents.

Cryopreservation on this scale is not supported by the mainstream scientific community. While scientific advances have perfected the cryogenic preservation of human embryos, there is no evidence that the technology is viable for a human body.

Despite the lack of scientific basis, the Cryonics Institute has 145 human "patients" as well as 125 "pet patients". The cost of freezing starts at $28,000 for humans and $5,800 or more for pets.

Stanford University law professor and bioethicist Hank Greely is not comfortable with the sales pitch of bringing a frozen person back to life. "If you think about this as a health intervention, I think it's ethically problematic," Greely stated. He added that the ethical dilemma could be lessened by treating the process as an alternative to the traditional preservation practice of embalming.

Cryopreservation is not the only example of the pseudoscience of cryonics duping consumers to part with a chunk of cash. Beginning in the 1970s, and finally becoming popular in the US over the last several years, cryotherapy is a controversial procedure that involves standing in a chamber filled with nitrogen gas chilled to between -319 and -166 degrees Fahrenheit.

Cryotherapy reached Michigan in 2015, with a whole-body cryotherapy treatment center opening in Birmingham last year. With its proponents touting benefits that include increased athletic performance, weight loss, speeding up surgical recovery, improving skin conditions, and even treating rheumatoid arthritis, it is hard to not take a closer look at these impressive, although unsubstantiated claims.

Alas, there is no mainstream medical support for cryotherapy. A recent scholarly review of scientific studies was unable to find any data that supported whole-body cryotherapy over more traditional methods such as cold water immersion or ice packs.

The 2015 death of ChelseaAke-Salvacion increased the scrutiny of this controversial spa procedure.  Ms. Salvacion did not freeze to death, but asphyxiated due to the lack of oxygen in the air during her cryotherapy session.

There is no scientific evidence that exposing the human body to extreme sub-zero temperatures has any likelihood of preserving the body in a state of suspended animation, waiting for technology to catch up with the forward thinking Cryonics Institute members. The custody case of the UK teenager further complicates the ethical considerations of this dubious proceedure.

Likewise, there is no evidence that cryotherapy is any more effective than sitting in a bathtub full of ice water. Nevertheless, people continue to be fascinated by the mysteries of the sub-zero and they continue to be willing to pay to satisfy this fascination.

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Post #570

Brad Pitt in the movie Snatch

News of the divorce between Hollywood A-listers Brad Pitt and Angelina Jolie lit-up the 24/7 news cycle last week. While not surprising that another blockbuster couple is calling it quits, the high-priced legal spokespersons on each side promised a pitched custody battle following rumors of allegations of mile-high child abuse on an apparently tension-filled international flight.

Rumors that Pitt is the subject of investigations by the FBI, California law enforcement, and child protective services are not panning out. The rumors attempted to frame the narrative for Jolie to get an edge in the upcoming custody battle.

One fact that has been confirmed is that Jolie filed for divorce seeking "sole custody" in her complaint for divorce. Seeking sole custody is an aggressive move in family court where most legal professionals presume joint custody is in the best interests of the minor child.

Not all cases are suitable for joint custody, however. When spouses cannot communicate for the sake of effective co-parenting, or when one parent is abusive to the other spouse or children, sole custody often results.

While various agencies seem to be deflecting queries about investigations, FBI involvement arose as a routine matter given the circumstances of a private jet entering US airspace from abroad. Acknowledging a role in the incident, the FBI's official line is that they have yet to decide whether they will launch an official investigation.

The real fireworks involve the lawyers the stars hired for this divorce. Jolie hired second-generation divorce lawyer Laura Wasser, the so-called "Disso Queen"; the queen of [marital] dissolution.

Charging $850 per hour, Ms Wasser claims Johnny Depp and a Kardashian [or two] among her clients. Used to clients who value their privacy, Wasser prefers to settle cases privately, outside the courtroom where they belong.

For his part, Pitt hired veteran Hollywood divorce lawyer Lance Spiegel, who has made his bones representing the likes of Charlie Sheen, Michael Jackson, and Heather Locklear among others.

To the extent that this famous split sheds light on the concept of legal and physical custody in a divorce, we will follow-up.

Post #559

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Shying away from items of pop-culture, this case nevertheless caught our attention over here at the Law Blogger. Rochester Hills native and pop superstar Madonna is embroiled in a protracted custody battle over her 15-year old son Rocco with her ex-husband, the British director Guy Ritchie.

Apparently, while on the Rebel Heart tour with her mother in Europe last December, Rocco decided to stay with his father in London. Anguished, but not one to take adversity sitting down, the material girl filed a hasty application in the Hague, a tribunal which deals with kidnapped children; the application has since been withdrawn.

Currently, there are proceedings ongoing in both London and New York to decide the fate of the famous teenager. When his parents quietly divorced back in 2008, the couple had joint custody.

Due to the fame of Rocco's parents, both parties have requested that the details of their dispute be kept to the courtroom.

Regardless how wealthy or famous the parents, custody battles cut deeply into the child's world.

Post #527

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Mom and Dad Tsimhoni

Judges must be fair and impartial despite the intense family emotions that swirl about their case load. The judicial system depends on that bedrock principle.

When you file a case in one of the county family courts here in Michigan, the county clerk that processes the complaint utilizes a blind draw system to assign your judge. This means that litigants cannot select the judge assigned to their case.

Sometimes, family court litigants are viscerally dissatisfied with the judge assigned to their case, especially when the judge makes decisions adverse to their interests. In every case, the family court judge will upset one of the two parents embroiled in a custody or parenting battle.

Judges are required to remain neutral, unbiased finders of fact; these judges are charged with determining the best interests of the minor children in every case. From time to time, a parent believes that the judge has lost their impartiality and claims that their judge is personally invested in their case to the point of bias.

When these allegations surface, one option available to family court litigants is to file a motion to disqualify the judge. If a family court judge denies such a motion, then the offended litigant can file the motion with the chief judge of the circuit court.

Recently, this procedure played-out in the high-profile, high-conflict Tsimhoni divorce. The mother attempted to disqualify Judge Lisa Gorcyca after her three children spent their summer in Children's Village and at a court-ordered juvenile camp, and more-recently, after she lost custody of the children to her ex-husband.

After these adverse rulings, and after she changed lawyers for about the 10th time, mother filed the motion to DQ the judge, and Judge Gorcyca denied the requested relief, refusing to step down from the case. Among the thousands of cases on the open family court docket in Oakland County, this one stands-out due to mother's severe parental alienation against the father.

Mother's new lawyer filed an appeal with Oakland Circuit's Judge Nanci Grant, the chief judge of the court.

Now, as this parental alienation case blew-up in the national media because both parents refused to work together as co-parents, they tossed it into the lap of the Oakland County Family Court where Judge Nanci Grant has recused herself from hearing the appeal of mother's attempt to disqualify Judge Gorcyca.

This was a very strategic move by the veteran Oakland County chief judge. Now that she has recused herself, the case goes before the plenary court to determine whether any of the remaining judges wish to take the case.  We don't think there will be any takers.

If none of the judges on the Oakland County Circuit Court want this steaming pile of horse dung, it goes to the family court judges of an adjacent county like Wayne, Genesee or Macomb County Circuit Courts.

The parents now need to bury the hatchet and regain control of their family for the sake of their children.

One of the best kept secrets of the family court is that the judges are powerless if the parents agree on a plan going forward. If they cannot agree, then they judges have the power to control every aspect of of their family life.

It is exceedingly difficult and rare to successfully bring a motion to disqualify a judge. For the most part, family court litigants are stuck with the "luck-of-the-draw" where judicial case assignments are concerned.

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Post #502

Judge Kathy Viviano

Our lawyers appear in front of Macomb County Family Court Judge Kathy Viviano on a regular basis. Her father was a long-serving family court judge from Macomb; her brother sits on the Michigan Supreme Court.

Earlier this summer, a father with a custody case before Judge Viviano began emailing threats to court staffers that he was going to blow-up her car with a pressure cooker bomb. The 55-year old man, Keith Rebar, also made threats to shoot the judge if things did not go his way in the child custody proceedings.

Rebar's threats came to light a few weeks ago when they were renewed and, ultimately reported to the sheriff.  Atta boy Keith; now your children will get to read about their loose cannon father and may even be deprived of your company while you pay your debt to society for your threats.

Over the years, we have had our share of litigants, both clients and opponents alike, who have taken a dim view of the family court system. These folks talk a lot about taking matters into their own hands when they feel helpless within the system.

Often, such folks have visceral disagreements with the family court professionals assigned to their case. These people feel that no one can decide matters, or can make parental decisions, better than they can.

When they see their case taking a few turns in a direction they do not support, they tend to overreact. In the case of Judge Viviano, Macomb County Prosecutor Eric Smith took Rebar's threats seriously, charging him with making a false report or threat of terrorism; a 20-year felony.

Because family court judges make decisions that hit so close to home, they are faced with situations on a daily basis where one party in every case views the judge's decision as a vital threat to the very existence of their family.

A trip through family court is a rough road for the hot head. Good legal counsel is the best bet to keep things moving in the right direction.

Making threats to the family court professionals is never a good move. It amazes us here at the Law Blogger how often that occurs.

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Recently, we came across an interesting editorial in the Detroit News that addresses how family courts approach the issue of custody in a divorce or family court proceeding. The editorial points-out that Wisconsin is one of only two states with a statutory presumption of joint custody.

Michigan's Child Custody Act does not contain this presumption; it does, however, have language stating that joint custody must be considered. For years, however, there has been legislation proposed that would adopt a true joint custody presumption.

The organized family law bar [the Family Law Section of the State Bar of Michigan] has long-opposed the statutory presumption of joint custody. The argument is mostly based on the theory that custody must be decided on a case-by-case basis, and that frequent cases of domestic violence and abuse make the operation of the joint custody presumption too risky.

While the organized family law bar's opposition has never let the above-referenced House Bill 4141 see the light of day, there is always some opposition to the opposition.  But there is no "trend" or rush to a joint custody presumption.

In Wisconsin, the family courts are now bound to follow the "shared parenting" model; in Michigan, it is known as "co-parenting". As we always advise our clients, the custody label [joint, sole, legal, physical] is less important than the court-ordered parenting schedule and, whenever possible, maintaining communication between two parents that are willing to make parenting compromises that are in the best interests of the minor children.

It is true, however, that in some cases, the co-parenting model is simply not possible. Any divorce lawyer worth her salt can tick-off half a dozen recent cases where one parent or both refused to cooperate with any form of co-parenting, adopting a scorched-earth policy instead.

When this happens, the children pay the price; usually for the rest of their lives. So regardless of whether a state has a joint custody presumption, in all cases, without exception, it is the
p-a-r-e-n-t-s that have to get it together.

If you have a parenting or custody issue, contact us for a free consultation to discuss your options.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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By: Timothy P. Flynn

Sometimes, in the post-judgment phase of a divorcee's life, things can go haywire.  The divorce process can push good parents "off-the-grid".

There is a statute in Michigan that provides for the termination of a divorcee's parental rights if that parent neglects to pay child support and fails to communicate with the children for two years.  For this to occur, the other parent must re-marry and the new spouse must petition for the termination of parental rights as part of a step-parent adoption proceeding.

In a case just recently accepted for briefing and argument by the Michigan Supreme Court, the concept of legal custody within the context of the step-parent adoption statute will be decided.  It could come down to the High Court's interpretation of how the legislature used the words, "a" and "the".

The Kent County case, In Re: ARJ, takes a look at whether the re-married parent must have sole legal custody in order for the step-parent adoption petition to be granted.  The case is significant to the extent that it will interpret this important statute as well as possibly provide additional meaning to the phrase "legal custody"; a phrase over which many a battle have been fought in the family courts throughout Michigan over the decades.

The Kent County Family Court terminated the father's rights after a two day trial.  This termination was reversed by the Michigan Court of Appeals which basically held that the parental termination was done in error because both parents had joint legal custody.

So here we have a parent that has basically disappeared for the requisite two years  -no support, no contact-  but who clings to his parental rights through the label in the judgment of divorce awarding him joint legal custody.

In its order granting leave to appeal the Court of Appeals' decision, the Supreme Court specifically identified one of the issues to be briefed, argued and decided as:

Whether the phrase 'legal custody' in [the step-parent adoption statute] is synonymous with the concept of joint custody in the Child Custody Act, whereby 'the parents share decision-making authority as to the important decisions affecting the welfare of the child...

Our High Court also expressly invited the State Bar of Michigan's Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in the case.

Stay tuned to see how the Michigan Supreme Court interprets this crucial phrase; we will track the case for you.  The decision will likely have important implications for divorce proceedings that involve the custody of minor children.

www.clarkstonlegal.com
info@clarkstonlegal.com

By:  Timothy P. Flynn

Tampering with digital evidence in a criminal trial can get you into big trouble.  Although rare, a perjury charge often carries a higher potential prison term than the underlying crime.

Last summer in Traverse City, a woman testified on behalf of her boyfriend at his child abuse trial.  The victim in the boyfriend's criminal case was the woman's teenage son.

Problems arose in the TC household when the woman's boyfriend tossed the teen out of the woman's home.  When the boy returned a short time later to retrieve some of his personalty, a physical confrontation between the teenager and the boyfriend ensued [we've seen this movie before], resulting in criminal charges of 4th degree child abuse.

At the man's trial, the Mom brought printouts of her son's Facebook page and testified that her son was actually engaged in a FB conversation at the time of the alleged beat-down.  The prosecutor wasn't buying it, and questioned the witness about whether she had altered the documents she brought into court in any manner.

When the Mom responded "no" to the prosecutor's line of questions, the proffered evidence was subjected to a forensic examination which revealed that the computer's time zone setting was altered to line-up the FB posts with the time of the beating.  A simple but effective "gotcha" moment that prosecutors live for.

Apparently, this woman must now answer to a felony warrant for perjury and tampering with evidence.  The woman's exposure in her criminal case is 15-years in prison; a much steeper penalty than the one faced by her violent boyfriend.

This case illustrates the principle that, when digital evidence is involved, every key stroke can be verified.  Perjury is rarely charged due to the inherent difficulties with proofs.  In this case, however, the digital evidence supports the charges, and the accused does not garner any sympathy; at least not from us over here at the Law Blogger.

www.clarkstonlegal.com
info@clarkstonlegal.com

Law Professors should know better.  In what has to be one of the longest-running open cases in U.S. history, the divorce proceedings between two law professors continues to rage in Hamilton County, Ohio.

The two now-adult children produced from this ill-fated union have never known anything other than their parents locked in an epic divorce battle during which each parent has alternately won, then lost custody.  How utterly embarrassing.

The judge currently presiding over the matter recently chastised both parties for their non-exemplary behavior in the latest hearing conducted in the matter last month.  Over the years, several of the family court judge's rulings have been appealed by both parties; this, no doubt, has gobbled-up some of the years this matter has been pending and active in the courts.

Michigan Connection:  Law Professor Sharlene Boltz, one-half of this divorce disaster, is a graduate of the University of Michigan Law School.  We here at the Law Blogger wonder whether she ever took a family law course.

Here in Michigan, county family court judges are under a directive of the Michigan Supreme Court to complete all divorce proceeding within one year.  While this is a good rule-of-thumb, it is difficult to accomplish in some cases.

One of the ways we attempt to reduce protracted delays in the divorce matters we handle at our law firm is utilization of the collaborative divorce approach.  In a collaborative divorce, the spouses communicate directly about the ultimate settlement in the case prior to actually filing the initial pleadings.

Once a divorce is filed, the spouses and their minor children are subjected to the public jurisdiction and the timetable of the local family court.

The negotiations in a collaborative divorce proceeding, on the other hand, are conducted privately, often with the assistance of at least one lawyer and, if necessary, a counselor or therapist.  A team approach is used with an emphasis on cooperation and without concern for court-imposed deadlines.

Unfortunately, this divorce model does not suit every family.  For the collaborative divorce model to work, both spouses must commit to on-going communication and mutually reasonable objectives; if one of the spouses insists on the adversarial process, the collaborative model will not be possible.

If you are contemplating divorce and believe you have a rational cooperative spouse, perhaps you should give the collaborative divorce model a try.  To learn more, contact our law firm for a free consultation.

www.clarkstonlegal.com
info@clarkstonlegal.com

We here at the Law Blogger [the attorneys of Clarkston Legal, also known as Karlstrom Cooney] would like to thank our loyal readers and those that follow this blog.

This is our 300th post.  Three hundred: a perfect game in bowling; an excellent batting average in the bigs; the length of Noah's Arc, in cubits, and one of this blogger's favorite movies.

We started this blog with our first post back on March 30, 2009, on the topic of a lesbian couple litigating their right to adopt a child here in Michigan.

In the four years that we've been up and running with the Oakland Press, there have been almost 160,000 page views and we've received 438 published comments.  Minor league stats in the overall blogosphere, but hopefully relevant to our local readers.

In these years we have attempted to post interesting law-related information that our readers find useful and informative.  Some of the more important topics we've covered in our posts include:

• cell phone use and texting while driving, especially where teenagers are concerned;
• the "Superdrunk" driving law;
• same-sex marriage cases from their initial filings through the recent oral arguments at SCOTUS;
• privacy laws in the Big Data era;
• Second Amendment cases at SCOTUS;
• Obamacare at SCOTUS and now that the new laws are scheduled to take effect in the workplace;
• divorce and family law developments, especially child custody matters;
• the juvenile lifer laws recently decided by SCOTUS;
• significant developments in the criminal law; and
• occasionally, high-profile cases and local personalities that have intersected with the legal system or criminal justice system.

Before we begin work on our next 300 posts, we would like to also thank the Oakland Press and its editorial staff for their support and encouragement over the years.

www.clarkstonlegal.com
info@clarkstonlegal.com

Over the past several years, we here at the Law Blogger have noted several catchy marketing schemes involving divorce lawyers, especially from New York.  These schemes involve a bait and switch by promising a quick result for cheap, or just offering a divorce for an impossibly low fee.

Key word: impossible; at least in most cases. 

The first campaign we noted was touted in Manhattan as the "one-hour-divorce" for about $500.  For the low fee, clients meet with a paralegal and lawyer at the NYC firm to provide their personal information.  The details of their settlement are also, briefly, discussed.

The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the canned document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you extra. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A standard judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

Hopefully nothing changes during the statutory wait period, or all bets are off. Also, under general rules of legal ethics, the firm could not represent both parties to the divorce; but they've apparently figured out which one is their "client".

If the divorcing couple has children, property, or needs support, these issues can be handled in an hour; but will cost more than double. A Prenuptial agreement would all but disqualify the client from the discount program, although a "conventional" divorce would still be available.

Not to be outdone, there is a storefront in Brooklyn that has a sign advertising divorce for $399.  It turns out that this storefront is not a law firm, but rather the office of a paralegal that merely acts as a scrivener for the divorce forms required by New York state laws. 

For the stated fee, the paralegals will assist you in the completion and filing of the forms which are then filed with the court.  Then, it's "up to the judge".  Translation: you are on your own.

This advertised fee is also a classic bait and switch.  Not only are there extra fees for just about everything, you also need to pay filing costs and court fees. 

Apparently, the idea behind the sign is to get you in the door for the advertised low fee.  Once inside, then you learn that you, like 99% of the rest of the population, do not qualify for the low fee, but for a few hundred more bucks, they will take care of you.

It is "buyer beware" for these outfits for sure.

Here in Oakland County, we here at the Law Blogger and at Clarkston Legal, believe that the most important asset of any divorce lawyer is their reputation.  If the attorney is experienced and gets good results, it will be reflected in their fees.

www.clarkstonlegal.com
info@clarkstonlegal.com

The Sixth Commandment proscribes adultery unequivocally: "Thou shall not commit adultery".  Many people consider the Ten Commandments to be the laws of God.  The subsequent laws of man, however, do not always follow suit.

In 2011, the Michigan Legislature amended [rewrote] the Paternity Act to open the door, slightly, for an unwed biological father who sires a child with a married woman.  The bachelor's parenting rights, however, are contingent upon the consent of the mother.  

The new paternity laws have given rise to a few cases that have garnered media attention.  Fathers that have availed themselves of the new law in order to correct one of the more painful gaps in our tranditional family laws; denying standing to any putative father who's baby-momma was married at the time of birth. 

The new paternity leglislation basically thanks the bio-dad for his sperm donation, but does not afford him any substantive parenting rights without the mother's consent.  If the bachelor can offer some proof to the family court that he was clueless about the baby momma's marital status, he has standing to bring a claim under the paternity act.

Aaron Grimes filed a case when his relationship blew-up.  Grimes conducted a two-year relationship with a woman he knew was married.  The couple took trips together, attended family functions, and otherwise held themselves out as a couple.  According to Grimes, she never wore her wedding ring.

When the baby was born, the mother had a change of heart according to Grimes; she reconciled with her husband, hired a lawyer, and has dened Grimes any contact with his son. 

Father's subsequent paternity cause of action was immediately dismissed by the Wayne County Circuit Court.  Dad is considering challenging the provisions of the new paternity act.

Compare Grimes' situation with Daniel Quinn, who, unlike Grimes, was able to claim cluelessness about his baby mamma's marital status; she was [secretly] married to a man doing time in prison.  Under the present legislative scheme, the bachelor's knowledge of the marriage is the deciding factor.   Unless the alleged father is in the dark, the baby momma is driving the bus.

So the difference goes to the heart of modern adultery.  To commit the sin, indeed, the felony, of adultery, one must presumably have the "mens rea"; the proverbial guilty mind.  If you do not know if your woman is married, are you nevertheless comitting the sin of adultery in the eyes of God; in the eyes of the law?

This is what the Michigan legislature has recently contended with; an imperfect piece of legislation, to be sure.  We here at the Law Blogger wish that the new act was more direct in advising the court to consider the best interests of the child rather than the relative standing of the parents.  Also, the paternity act should first "disestablish" the rights of the baby momma's husband prior to allowing an alleged father to proceed on a paternity claim.

The one-year limitation for a claim to be filed seems quick and too arbitrary; often, an alleged or putative father would have no reason to suspect his baby's momma is married.  Closing the door so fast on a bio-dad seems harsh.

Thus, the drama is destined to continue.  To men: the best course of action is to be very sure of the marital status of your partner prior to beginning the procreation process.  If you are in the position of Mr. Grimes, however, and you know that your partner is married, you need to also know that the current paternity act allows her to drive the bus when the baby comes.

To women: be sure to keep your child's best interests in mind and ask whether it is better in the long-run for your baby to know his or her true paternity. 

www.waterfordlegal.com
info@waterfordlegal.com

Dr. Jonathan Sporn & Leann Leutner

This is a sad tale, yet a sign of our times.  The case illustrates how, despite the oft-progressive status of our modern family laws, and the family law bar, there remains a stubborn bias in the family court that favors the bloodlines of a traditional family unit.

In New York City, Pfizer executive Dr. Jonathan Sporn (54), a divorced man, was in a committed relationship with Ms. Leann Leutner (40), also divorced.  A couple since 2010, the two were inseparable and intent upon starting a family.

According to a petition Dr. Sporn filed in the New York State Supreme Court in Manhattan, the couple resorted to in vitro fertilization following difficulty conceiving; they met with success by using donated sperm for fertilization.  Their baby, Lincoln Sporn, was born last July.

The family law dispute arose, however, when Ms. Leutner, a New York City lawyer and Yale Law grad, retreated to an apartment in New Jersey following an acute bout with postpartum depression.  She discharged herself early from the Mount Sinai Hospital, where she underwent psychiatric treatment, and committed suicide on New Year's Day by jumping to her death from the 14th floor apartment.

Dr. Sporn's custody petition alleges that Ms. Leutner, long-afflicted with mental illness, had stopped taking her prescribed Prozac at the time she was beset with acute postpartum depression.  Ms. Leutner also made prior unsuccessful attempts to take her own life according to the custody petition.

This grim Manhattan custody battle now pits Dr. Sporn against Ms. Leutner's sister from Illinois, who is also seeking custody of Lincoln.  At present, the infant has been placed into foster care somewhere in Gotham in accord with the applicable statute which characterizes the parent-less child as: "destitute".

Like every same-sex couple that splits-up, Dr. Sporn occupies the same position as the partner that lacks any biological connection to the child.  Without that connection, traditional family law says, "you lose" in the inevitable custody war following the split.

Next month, Justice Laura Drager must decide which custodial environment is better for infant Lincoln: the Upper West Side with "Dad", as Dr. Sporn refers to himself, or in Illinois with Lincoln's aunt.  The case is expected to be remanded by the appellate court to the family court for an evidentiary hearing; meanwhile, months will grind by and the infant will become a toddler while in the foster care of strangers.

We here at the Law Blogger wonder, if the aunt was not contesting Dr. Sporn's custody petition, whether he would nevertheless be engaged with a custody battle with the New Jersey Child Protective Services. 

Also, is the aunt's claim thwarting a potential adoption bid for Dr. Sporn?  If so, what a shame.

The case has been tagged here at this Blog, and we will report the outcome.  Let's see just how progressive our family courts can be...