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Eventually, and according to the family court judge, inexplicably, the hormone therapy case plan was withdrawn after the abuse and neglect charges were dropped.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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Judge Joan E. Young

Judges Joan Young and Elizabeth Pezzetti are spending their final days on the bench at the Oakland County Family Court. The two senior jurists will retire in January and, in each case, will be sorely missed.

In 1984, this blogger spent the summer as a legal intern in Joan Young's office. Back then, she was the court administrator for the Oakland County Circuit Court; long before there was a family court division.

A Wayne State Law graduate, Judge Young was first elected to the Oakland County Probate Court in 1988; she was later appointed by Governor Engler to the circuit bench in 1997, where she was elected to three consecutive 6-year terms.

When the Michigan Legislature created the county family courts in 2000, Judge Young served as chief judge of the circuit court and was instrumental in creating the family law division within the Oakland Circuit. Also, Judge Young presided over the adult drug treatment court from its inception in 2002 until just last year.

In 2002, when the circuit court announced the implementation of e-filing and a push toward a paperless electronic court filing system, Judge Young was the one making the announcement. She provided very strong leadership in these key service areas of the court.

Judge Pezzetti (R) with Referee Betty Lowenthal

For her part, Judge Elizabeth Pezzetti also was appointed by Governor Engler, in 2001, to the probate court. Like Judge Young, Judge Pezzetti spent the her tenure on the bench at the dawn of the family court and during the transition to an electronic filing system.

This blogger has had the distinct pleasure to serve along with Judge Pezzetti on the Citizens Alliance Committee, the advisory board for the circuit and probate courts of Oakland County.

Judge Pezzetti has always had a probate component to her docket; even when serving as a family court judge. As such, she is accustomed to resolving disputes involving families that are under great stress, or families that have members at odds with one another.

The principle manner in which Judge Pezzetti has served our local court over the past 16-years has been through her consistent, patient and studied approach to the many many cases that have flowed through her courtroom. Like Judge Young, she will be very difficult to replace.

In Michigan, judges are elected thus, both seats will be filled by the winner of the non-partisan election on November 8th. Don't forget the non-partisan ballot; it is on the back side of the partisan ballot, so be sure to flip your ballot over to vote for judges.

The candidates running for Judge Young's open seat are Oakland County Friend of the Court Referee Lorie Savin and West Bloomfield attorney Victoria Valentine. The candidates running for Judge Pezzetti's open seat are Clarkston lawyer and Public Administrator Jennifer Callaghan and Collin Einhorn lawyer Karen Geibel.

Post #564
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Last week, HBO introduced its latest series Divorce, starring Sarah Jessica Parker and Thomas Haden Church. The show takes a dark comedic look at the divorce process from start to finish.

Parker and Church are perfectly cast for this important tale of woe. An extra-marital affair gets things kicked off, and its downhill from there.

Yes, the doomed couple tries counseling; yes, there are divorce lawyers; and there are minor children; even a dog. None of the professionals, each with their own agendas, can repair the marriage. Thus, Divorce, with its difficult intricate process.

Yet, while the divorce process is difficult, stressful, intricate and often painful, it is necessary for a couple -a family- to repair the damage and to move on to more productive meaningful lives. The HBO series demonstrates that how a person chooses to travel the divorce journey matters.

This show benefits from its pilot and first episodes being aired during the most contentious and vicious presidential election in U.S. history. In some ways, the election, which none of us can escape, sets the table for a show like this. Like the presidential candidates going through the election process, spouses in a divorce can take the high or low road; each spouse, just as each candidate, will have their reasons for which road to take.

With the series broken into half-hour episodes, the writing is taut, with the veteran actors making the most of every precious minute to convey the pain and tension of the divorce process. "I want to save my life while I still care about it," Frances -SJP's character- offers as the reason she elected to divorce her husband of about 15-years.

While not for everyone, this series will no doubt appeal -or at least be of interest- to the half of our population touched by divorce. As the institution of marriage has shifted from an economic basis to one based on emotion and love, so too have the reasons married couples call it quits.

Accordingly, over the span of a quarter century, divorce has shifted from a fault-based to a "no fault" legal procedure in every state; neither party need articulate a reason for seeking divorce other than a conclusory allegation that the objects of matrimony have been destroyed. One extension of making the divorce process "user friendly" has been the creation of specialized "family courts" embedded within the court structure of each state.

Divorce, the series, demonstrates, however, that no-fault is never really "no-fault"; especially when there are minor children. There is always plenty of fault to apportion within the confines of a disintegrating marriage; there is often a lack of introspection and self-awareness; plenty of spouses behaving badly.

We here at the Law Blogger cannot help but sense that the divorce process will only become more prevalent. Regardless of the recent innovations designed to streamline and simplify the process, the most significant factor in any given divorce is the actions of the participants: the judge, lawyers and, most importantly, the litigants.

Post #563

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Like here in the West, the once-solid traditional concept of family and the institution of marriage has been placed under great stress in China; a country where, for centuries, marriage was universal and mostly permanent.

Social trends affecting the family have been directly engineered by the modern communist state in China [like the one-child policy] as well as indirectly [as in the massive urbanization push of the past five years]. Add Internet access for over a billion people and, watch the infidelity rate, along with the divorce rate, increase significantly.

Until 1994, the Chinese divorce petitioner was required to produce an employer's or community leader's endorsement before a decree would issue. Community leader translates as: the local apparatchik.

In modern China, the lid is now blown-off the divorce process. Today, if husband and wife agree, it is nothing more than a brief administrative detention.

Divorce is handled in China at the district government bureau level. Some cases only take a half hour at the dingy bureau offices and cost the equivalent of a buck and a half. Yes, that's one dollar and fifty cents.

No lawyers, of course. Property has always meant something different in communist China; property is always handled by the government in China. When it comes to divorce, China's separate property laws favor men who more often take advantage of property gifted to them by their parents, even during the marriage; such property remains the husband's separate estate under Chinese divorce laws.

America has the highest divorce rate among developed Western countries; China's divorce rate is fast-approaching ours, with 3.6 million million Chinese couples calling it quits in 2014.

The Chinese government's internal migration effort has been characterized as the largest and most profound in human history. This massive displacement has put a lethal amount of stress on millions upon millions of marriages in modern China.

Another factor related to China's increasing divorce rate is the effect of the Internet and social media on women's awareness of their rights in a divorce; not ever a topic for consideration in Mao's era and through the 1980s. Today, women initiate over half of all Chinese divorce filings.

Let's not forget, however, that China still has a component of its population adhering to Confucian-style family values and the multi-generational family structure. Divorce and separation are seen by the more mature generations as a moral failure, often caused, at least in part, by creeping Western influences.

For the young and recently urbanized, infidelity is a new-found freedom and [possibly arranged] marriages are left behind, along with their parents' village. Another factor to consider within the urbanization context is that men still cannot legally marry in China until age 22, the oldest such restriction on the planet.

So the immediate outlook is that China, along with the United States, will lead the world in the rate of divorce. This is probably not a good thing; it is a seemingly inescapable fact of life in the developed world.

Post Scripts: Apparently, we are not the only ones thinking about this topic; take a look at Helen Gao's article in the Sunday NYT from October 16, 2016. And another on the topic courtesy of The Economist from November 30, 2016.

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Post #519

Maya Tsimhoni

Children's Village is not the place you want to be as a child, especially if you come from a background of relative privilege. You'll see things there that your mom and dad never explained; for the first time in your life, you'll need to check your six.

Yet that is where three young Oakland County siblings wound-up over the past two weeks when they refused to comply with Judge Lisa Gorcyca's ruling that they spend parenting time -a lunch- with their father. The three minors were housed among the unruly teens that have seriously run afoul with the law at a very young age.

The case is a headline-grabber and we here at the Law Blogger expect that it will acquire some national media legs by the weekend now that Fox2 News broke the story on their evening newscast last night.

The facts are simple enough: after a series of protracted court hearings to litigate parenting issues, the children were ordered to spend time with their father; when they refused, they were confined to the Village for civil contempt of court. Family law judges do have powers over all those folks under their jurisdiction, including both parents and all the children in a divorce proceeding.

This case is different because it features putting the children, rather than the recalcitrant parent, into confinement. Judge Gorcyca, no doubt frustrated when the siblings became obstructionist -perhaps with their mother's encouragement- elected to exercise some of that power as a sanction for the contempt shown for her parenting order. Were other options available on the family judge's menu? Yes, of course there were; but this is the one she chose.

Over the years, we have seen the dynamic of older children faced with court-ordered parenting schedules they deem onerous. The well known rule-of-thumb in the industry is that the older the child, the more difficult it is to get him or her to comply with a distasteful court order.

But the Tsimhoni children are relatively young [ages 14, 10 and 9]; apparently, they banded together in defiance of the judge. This defiance has been honed from protracted disputes between the parents for the past five years.

The Tsimhoni case, grinding on since December 2009, features a long-list of family court professionals well-known in the industry, brought into the divorce proceeding to assist with the deep-seated and seemingly irresolvable parenting disputes. The case has featured pitched allegations of parental alienation and kidnapping.

Here is a copy of the GAL William Lansat's report to the family court judge, posted online as the story was breaking. The GAL report sets out the context within which the judge made her decision.

When an emergency motion to readdress the children's incarceration was denied by Judge Gorcyca, an appeal was lodged and a petition for a writ of habeas corpus was filed Monday by the mother's new law firm. A petition for habeas corpus alleges that a person is being incarcerated by the state in violation of a constitutional right.

Even though Judge Gorcyca, obviously frustrated by the children's defiance of her parenting order, placed the children into the Village until they emancipate at age 18, we predict they will be released shortly. The question here is whether their inevitable release comes at the hands of Judge Gorcyca or through some other jurist.

Family court judges have vast powers at their disposal. This case will stand as an example of the measured limits of those powers.

July 9th Post Script: As we predicted, a two-hour hearing was conducted by Judge Gorcyca yesterday, which concluded with her ruling that all three children should be released from the confinement of Children's Village.

For those among our readers that are students of the family court and for the family law professionals, here are two comprehensive articles in the Detroit News that provide a more detailed context for the judge's decisions in the Tsimhoni case. Take a look here, and here. Of course, the two top writers for the Freep joined in: Brian Dickerson and Mitch Albom. The Observer published an interview with the father.

The case, now making huge traction on the State Bar of Michigan's family law listserv, features articles that have posted large chunks of the critical hearing that led to the children's commitment to the Village. Here is an example from the Daily Tribune.

September 9th Post Script: Continuing to deliver headlines, this case featured a hearing today that resulted in the Court being advised that the Tsimhoni children successfully completed their court-ordered stint in a summer camp, have completed intensive therapy for parental alienation, and have been reunited with their father. The court has scheduled a hearing for October to determine whether Mother's physical custody of the children should be switched to Father. The court file remains sealed.

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Oakland Family Court
Judge Joan E. Young

Over the years, our law firm has supported a privacy policy developed by veteran Oakland County Family Court Judge Joan E. Young. This policy involves restricting sensitive private information, usually taking the form of exhibits attached to a motion, to a "bench memorandum" that only gets filed with the judge; not with the clerk of the court.

Normally, when an attorney files a motion in family court, just like in any adversarial proceeding, all motions, briefs and attachments are included in the court record which is available to the public. Members of the public can then obtain [for a fee] any of the documents filed with the Court.  These documents are even available through the Internet via the Oakland County Court Explorer.

Like other adversarial proceedings, motions filed in family court result from conflicts that are irresolvable through informal means. In family court, motions can get particularly viscous and personal, depending on the skills, experience and decorum of the attorneys involved.

Recently, there has been some discussion among local family law professionals about sealing family court files from the public and making them available only to the parties and their respective counsel. A private divorce filing system was adopted in New York which now serves as a model for other states.

There are several examples of normally private matters that are subjected to the public eye in a family court proceeding when lawyers, paid to advance their client's agenda, are less than discreet:

• Income and employment information;
• Valuation and other disclosures regarding assets;
• Business records;
• Estate planning information;
• Embarrassing conduct detailed in an affidavit or other sworn testimony;
• Police reports and witness statements in unrelated cases;
• Therapy or counseling information;
• Children's academic records;
• Statements about children's conduct;
• Medical or mental health information about the parties or the children;
• Sensitive information about other family members.

The list could be much longer given the diversity of situations presented to the family courts on a daily basis.

A motion is a vehicle in litigation whereby a specific legal issue is decided in the case. Attorneys routinely attach all manner of documentation to a motion in support of their legal position and factual assertions.

Once these documents are attached to a motion, they become part of the record in the case. This is critical because, if one party appeals the lower court's decision, only the documents contained in the record can be considered on appeal.

Therefore, sealing a family court file may create problems relative to appellate review. Also, sealed records may make abusive or unreasonable conduct more difficult to prevent unless the malfeasor knows he faces exposure.

The state courts in New York work around this by enumerating a comprehensive list of professionals in the procedural rules that have access to the family court records; they include those needing the documents for an appeal, and those involved in the prosecution of a distinct but related criminal matter.

Judge Young's policy on the privacy of family court filings has evolved over the years. At first, she made it known among family court practitioners that we should be attaching exhibits to the judge's copy of a filing only.

Over the years, however, she has come to adopt an "all or nothing" approach given the difficulty in arriving at a list of items, even a comprehensive one, that are to be afforded privacy.

At present, the bottom line is that disclosure of sensitive information is up to the discretion, skill and experience of the lawyer. If a lawyer reacts emotionally to an emotional issue, attaching emails, screen shots, pay-stubs, mental health assessments, or affidavits to documents that are filed in court, then this sensitive information becomes part of the permanent record in the case, subject to public scrutiny.

Unless or until the law changes, parties facing such public exposure can only avail themselves of the court rule that contemplates sealing a court file. In cases where a party seeks to seal an otherwise public record, the matter rests with the discretion of the family court judge assigned to the case.

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Former Judge Wade McCree, Jr.

Generally, judges have broad immunity relative to their decisions from the bench.  Judges cannot be sued and held liable for how they decide a case.  Such sweeping immunity is necessary to maintain a fair and impartial judiciary.

This week, the concept of judicial immunity is being put to the test in various courts.  One case involves a disgraced Wayne County trial court judge; the other involves a sitting Michigan Supreme Court Justice.

There are two types of decisions to which judicial immunity applies: decisions in a case on the judge's docket, and administrative decisions made "off the bench", such as hiring or firing personnel.  The former is protected by judicial immunity while the latter is not.

An illustration of judicial immunity is playing out in the civil lawsuit against former Wayne Circuit Judge Wade McCree; he had an affair with a woman who had a custody case in his court and the father is now suing McCree.  The now-disgraced [and married] judge had the bad judgment to preside over the case, when he was secretly involved with the mother of the minor child; the entire family was subject to McCree's jurisdiction in the case.

The case against McCree was tossed out of federal court and appealed to the Sixth Circuit Court of Appeals which held that, although reprehensible, Judge McCree's conduct nevertheless fell within the scope of judicial immunity.  How far is too far then, if having sex with a litigant in your chambers is still protected?

Although Michigan has no case on record where a judge is held liable for his decision or conduct while on the bench, Tennessee has a rare example of a juvenile court judge held liable for violating the civil rights of three women by sexually assaulting them under the threat that he would take away their children if they did not comply with his demands.  So there you have it; having consensual sex is not sufficient to attach civil liability to the judge, but sexual assault may get a plaintiff some money damages.

Not all of a judge's decisions involve litigants on their docket.  In the case of Michigan Supreme Court Chief Justice Robert P. Young, Jr., the former administrator of the Michigan Attorney Grievance Commission is suing him in the Wayne County Circuit Court for an allegedly wrongful and retaliatory firing.  The former AGC administrator, Robert Agacinski, reported a series of bizarre staffer emails he discovered to the Attorney Grievance Commission and, he claims, instead of looking into it, the members of the Commission went to the Chief Justice of the Michigan Supreme Court [the High Court is charged with oversight of the Commission] to have Mr. Agacinski, a 14-year veteran of the AGC, very unceremoniously dumped.

Agacinski alleges that Justice Young's decision to terminate his employment violates Michigan law.  For its part, the Michigan Supreme Court merely noted that Agacinski was fired through a court order signed by all seven Supreme Court Justices.

Both the litigant suing former Judge McCree and Mr. Agacinski have hired Detroit lawyer Joel Sklar, who claims in both cases that his clients are merely seeking to hold those in positions of power accountable for their actions.

We shall see how it all turns out for Mr. Sklar's clients.

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By: Timothy P. Flynn

Last Tuesday, Governor Rick Snyder signed a new adoption law designed to accommodate a biological father's standing to establish his parental rights and suspend pending adoption proceedings.  In such cases, the child is returned to the Mother, and remains under the jurisdiction of the county family court.

 Most family court professionals will recognize this procedure as the path to take in nearly all cases.  A recent case from Ottawa County, however, resulted in a 13-page published [and thus binding] appellate opinion that resulted in awarding Father full custody of an infant when he challenged Mother's adoption petition. In Johnson v Byron, Father successfully utilized the "she was giving-up the baby anyway" argument, a commonly un-persuasive assertion, but one that prevailed in both the Ottawa Family Court and the Michigan Court of Appeals, presumably due to the unusually dysfunctional parental dynamics [i.e. a concealed pregnancy, expedited adoption, heroin, marijuana, pills, booze, the works].

The new law calls for the child to be returned to the Mother upon Father's filing of a timely challenge to the adoption proceedings.  In such cases, the temporary adoption placement is terminated and Mother's petition is dismissed; custody of the child is then determined by the county family court, with Father's parental rights intact.

The local Friend of the Court then gets involved in the custody determination through the application of the Child Custody Act, rather than through a "best interest" hearing under the now-revised adoption law.

Members of the Republican caucus in the Michigan House were apparently sufficiently moved by outcomes in Byron and cases like it to reach out to the Adoption Committee of the State Bar of Michigan's Family Law Section; the Committee authored HB 4648.

In the wake of the new law's passage, many family law professionals commented in the legal news media that the amended adoption law removes a potential trump card from the hands of a previously disinterested and perhaps irresponsible biological father; it levels the field for both parents, giving the Father a voice in lieu of punishing Mother for her decision to seek adoption.

We here at the Law Blogger believe that this law makes good sense.

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Veteran Research Attorney
Karen Geibel

Well, the the field is now set.  In November, it will be Lisa Langton vs Karen Geibel for the open seat on the Oakland County Circuit Court.

Ms. Langton is a deputy court administrator for the Oakland Circuit Court.  Ms. Geibel is the long-serving research attorney for Oakland Circuit Judge Rudy Nichols.  Incidentally, Judge Nichols is also up for re-election, running with a block of six other sitting judges.

Last month, this blog speculated that Ms. Langton could wind-up with the seat unopposed, unless someone else filed the requisite 5000 signatures.  That someone is Karen Geibel.

Normally, a half-dozen candidates vie for any open seat on the Oakland Circuit bench.  The top two vote-getters advance from the August primary to the general election in November.

Because this year's non-partisan election has a paucity of candidates, the judicial hopefuls will not have to ruin their summer with endless campaign appearances since they will both automatically advance to the November ballot without spending a dime.  Nevertheless, you will probably see the judicial candidates at various farmers' markets, municipal gatherings and parades over the next six months.

As the new judge will be installed in the family court division, the divorce lawyers out there will slowly begin to take note of the now-official judicial candidates.  For our part, we will be monitoring the election to inform our readers of any relevant developments; stay tuned.

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Mary Nolan: the lawyer with her lawyer

This episode comes to us from Northern California.  Full disclosure: this divorce lawyer was not only convicted of eavesdropping; multiple counts of tax evasion as well.  The latter is really what landed the attorney in federal prison; the former simply sensationalized her case.

Until recent months, Mary Nolan was a veteran family lawyer in the Bay Area.  Her career and her reputation lay in ruins on Monday as she stood before a federal judge at a sentencing hearing on eavesdropping and tax evasion [guilty plea] convictions.

Ms. Nolan admitted to exercising the incredibly poor judgment of hiring a private detective to plant a recording device in the vehicle of her client's ex-husband.  While she was practicing law within that illegal context, she was cheating the IRS out of nearly half a million dollars in unpaid taxes over the span of the last several years.

A true spectacle for disaster; lawyer-style.  While the eavesdropping component of her case garnered some left-coast headlines, the sentencing judge focused more on the tax evasion component of Nolan's sentence stating that, as a lawyer, she was held to the higher standard of knowing the tax code, however complex, and charged with following those laws.

The sensationalising of Nolan's case, on the other hand, was heightened by the plight of the investigator she hired to perform her dirty work on this and other cases.  The investigator, doing an 8-year bit himself, was convicted in a series of unrelated cases along with several Bay Area law enforcement officers.

We are not making this up.  Here's how the investigator's sting worked: he would hire attractive women to flirt and drink with men at bars that were followed because they were going through a divorce.  Once the poor schlub consumed a few cold screamers with the hottie's encouragement, local law enforcement would be tipped-off and wait for the unsuspecting divorce litigant to drive-off.  Then, kerblam; a niftily arranged drunk driving conviction to toss into the family court like a grenade.

The private dick followed his targets apparently at the behest of some of the less ethical members of California's family law bar; two of the investigator's marks had spouses that were client's of Nolan's.  Just sayin; we here at the Law Blogger invite you to draw your own conclusions.

Here in Michigan, it is generally illegal to record conversations in which you are not a participant.  We sometimes have to turn away evidence of serious fault supplied by a divorce client.

Lawyers must always follow the law or the whole system breaks down and becomes a sham.  When lawyers don't follow the law, this case illustrates that punishment in the form of incarceration and disgrace await.

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A Florida judge has been disqualified from remaining on a case in her family court docket after sending a party in a pending divorce a friend request on Facebook.  According to the appellate panel that reviewed the matter in Chase v Loisel, the family court judge's social media activity has led to her disqualification in other cases.

In the Chase divorce, the wife received an ex parte communication from Judge Linda Schoonover in the form of a friend request on Facebook.  The wife did not take the bait, conferred with her attorney, and ignored the request.

In the subsequent judgment of divorce, the wife took great offense to the manner in which Judge Schoonover decided the case, complaining that she was apportioned with too much marital debt.  When the family court judge denied the inevitable motion to recuse herself from the divorce proceeding, an appeal followed resulting in the afore-linked decision.

In disqualifying the family court judge, the Florida appellate court was troubled by the judge's attempt to reach out to a litigant in a pending case in a jurisdiction where judges are prohibited even from "friending" attorneys involved in the judge's caseload.   The appellate court held:

The trial judge's efforts to initiate ex parte communication to a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge's neutrality.  The appearance of partiality must be avoided.  It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case. 

We here at the Law Blogger think that this is a pretty darn good idea.  In the past few years in Michigan, this blog has detailed many of the transgressions those elected to the judiciary have made through the social media.

Quite simply, judges must rise above the urge to participate in social media.  Perhaps a judge can lurk on social media sites, but active engagement is probably not the best idea.

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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.

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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. 

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With so many folks, er, "medicating" themselves with prescription pot, you just had to see this one coming: the collision between medical marijuana and the family courts.

A California appeals court has ruled that a medical marijuana using father of a toddler is no longer required to exercise his parenting time under supervision.  The lower court found that father's use of pot placed the child at risk of "serious physical harm or illness".

The family had long been on the radar of Los Angeles County's Department of Children and Family Services.  During their investigation, DCFS interviewed father, a cement mason, who admitted to using medical marijuana for his pain and arthritis, but also stated that he never used marijuana around his toddler son.

DCFS authorized a case in the LA County family court alleging that father's legal use of marijuana rendered him occasionally incapable of  providing care for his then 18-month old child; the family court  agreed.

But not the California Court of Appeals, which held that the DCFS presented a mere scintilla of evidence, relying on inferences that amounted to speculation and conjecture regarding the correlation between the safety of the child and father's pot use.  Further, the intermediate appellate court found that DCFS failed to provide any evidence that father was unable to care for his son due to substance abuse.

The Court of Appeals' opinion is legally significant as it makes a distinction between substance use and abuse, defining the latter pursuant to the DSM-IV-TR, which defines substance abuse as:

[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household); (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use); (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct); and (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights). (See DSM-IV-TR, at p. 199.)

In the California case, the DCFS simply did not make this showing.  In fact, the appeals court noted that the opposite was the case; the father was gainfully employed, had a legitimate reason to use pot, and controlled his use, keeping the substance and his use of it away from his child.

We here at the Law Blogger wonder how long it will take before such a case percolates through the court system here in Michigan, resulting in a  published and thus binding decision.  We have had the occasion to represent parents accused by the other parent of using medical marijuana during their parenting time to the detriment of the children.

In Michigan, the medical marijuana act provides some guidance in this regard:

A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated

This is a drama-laden issue to be sure.  Stay tuned for guaranteed future developments.

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We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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The original "double-dip".

Many of us, when we think of “double-dipping,” immediately envision George Costanza nonchalantly eating chips and dip at a boring party. He bites the chip, dips, bites again, dips again, oblivious and happy.

Meanwhile, a fellow party-goer and disgusted onlooker cannot contain the impulse to put a stop to this obvious dip-contaminating behavior and confronts George. Inane hilarity ensues; check it out here.  [Note: Post-Seinfeld generation and long-time Seinfeld enthusiasts – you’re welcome.]

Double-dipping, in the world of family law, typically refers to the way assets are valued in the division of a marital estate.  A recent Michigan Court of Appeals decision, Loutts v Loutts, addresses this issue of “double-dipping” in the spousal support context.

This divorce case originated in the Washtenaw County family court.  One of the main issues in the case was how to determine an appropriate spousal support award where the marital assets included a business valued at more than a quarter million dollars.

The husband started, owned, and operated the business. When the family court awarded half of the business value to his wife, the question became: what income should be imputed to husband now that half the value of the business had been conveyed to wife?

When determining spousal support, the parties’ incomes must be determined so that the family court may decide how to equitably balance the incomes. The Michigan Court of Appeals has articulated a balancing test such that:

the primary purpose of spousal support is to balance the parties’ incomes and needs such that neither party will be impoverished, and spousal support must be based on what is just and reasonable considering the circumstances.

The family court can only perform this balance test on a case-by-case basis – typically unwilling to follow any bright-line rules for determining the rate and term of a spousal support award.

The family court in Loutts, after awarding wife half the value of the business, imputed approximately $130,000 income to husband.  This imputed income was utilized to “equitably balance” the incomes of the parties.

In doing so, the family court judge relied on case law to determine that “the value of a business may be used for the purpose of either property distribution or spousal support, but not both.” On appeal, wife argued that the court should have used the full-value of the business in determining her spousal support award.

The Court of Appeals disagreed, remanding this issue back to the family court for a re-determination of spousal support based upon the specific facts and circumstances of the case.  In their opinion, the Court of Appeals stated that the trial court’s reliance upon the Heller v Heller case was misplaced to the extent that, “the appellate court stated that its determination that a double-dip was inequitable was based on the facts of that case alone and was not a determination that double-dipping is never permissible.”  [The emphasis is ours.]

The obvious "take-away" from this recent case is that, when it comes to determining spousal support, bright-line rules simply do not apply. Rather, the family court judge should consider a variety of factors, including: the conduct of the parties, their ability to work, their ages, needs, health, present situation, prior standard of living, ability to pay alimony, and general principles of equity.

Double-dipping might be ok – given specific factual and equitable circumstances.  Exactly what those circumstances are remains a fuzzy, mutable, arguable enigma, ripe for the art of legal persuasion.

The one constant is that each case before the family court is unique and should be considered so by the judge.

Also of note in the Loutts decision is that the Court of Appeals wasted no time in upholding a 3-year non-compete provision that applied to the business and to which wife agreed, but appealed.  The Court held that you get what you bargain for.

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This case from Vermont displays some of the worst features of a parent taking family law into her own hands.  It is one thing for a parent to denounce her same-sex union and her lesbianism; it is entirely another to then plunge into a "born-again" culture, kidnapping her child to Central America and removing her from the other legal parent.

The case of Lisa Miller, Janet Jenkins and their 10-year old daughter, Isabella, is in the headlines as the Mennonite pastor that assisted Miller in fleeing the country goes on trial today in federal court in Burlington, Vermont.  No one knows where Miller and Isabella are today; Jenkins has not seen her daughter in over 3-years.

The civil union between the two women began to deteriorate 8-years ago when Miller denounced lesbianism in favor of her born-again conversion into a conservative Christian sect known as the Beachy Amish Mennonites.  Miller moved with Isabella to Virginia to be near church headquarters and tried to terminate Ms. Jenkins' parental rights.

The resulting protracted family court battle, waged in two state courts, resulted in an order of the Vermont Supreme Court granting custody to Jenkins; the Vermont ruling was honored and upheld by the courts in Virginia, where Miller tried to plead her cause.

Apparently, Miller had a change-of-heart regarding the family she created with Jenkins, and the lifestyle to which the parents belonged.  Once Miller "found God" within the conservative Christian Mennonite sect, she saw lesbianism as an "addiction" and found her partner to be an unfit parent who would not be allowed into heaven because she lived, in sin, with women.

At that point, as is so often the case with folks who find religion later in life, no laws of man or high court rulings could hold her back from her religious convictions.  In Virginia, Miller was employed for a time at Liberty Christian Academy, a school with close ties to Liberty University, the conservative christian college founded by Jerry Falwell.

Miller was represented in the family courts in the two states by lawyers from the Liberty Counsel, affiliated with the Liberty University's School of Law.  Her lawyers took the position that Virginia law, not Vermont law, should apply to the custody dispute in this case on the basis that the latter state "recognized as a parent a person that is not a parent", contrary to "biblical truths."  Virginia does not recognize same-sex unions as Vermont does.

Nevertheless, the Virginia family court and appellate courts ultimately ruled that Vermont properly had jurisdiction of the case.  When the Vermont family court judge ordered a parenting schedule that Miller refused to follow, he changed custody of the child to Jenkins in Vermont.

Shortly after this custody ruling, Miller disappeared with her daughter to Nicaragua.

Stay tuned to see how the federal jury that is being selected today in Virginia decides the fate of the local pastor that assisted Miller with fleeing the country, and whether Miller and her daughter will ever turn-up.

Clashes over child custody, lifestyle and religion; this case features all that and then some.  But we here at the Law Blogger must insist that it is never a good idea to take the law into your own hands.  That principle holds true whether you are the parent, or the pastor.

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This is the second post in our series on the topic of military divorce.

Jurisdiction

Every court in the United States has its own laws about jurisdiction meaning rules regarding what cases the court is allowed to hear. One form of jurisdiction is personal jurisdiction—does the court have the right to compel a person or organization to appear before it and pass judgment? Another form is subject matter jurisdiction—does the court have the right to hear this particular case about this particular topic?

A court of a state where either spouse legally resides, or where the service member is stationed, can have jurisdiction over the divorce.

Retirement Pay/Benefits

As was discussed before, the state court is what decides the extent of benefits the former spouse of a service member is entitled to receive. Depending on the state, marital property from a divorce can be divided equitably (i.e., what the court considers “fair”) or it can be divided equally (a 50/50 split). The Department of Defense though, places a ceiling on benefit awards to former spouses.

No more than 50% of a service member’s benefits can be paid out to former spouses, even if a) the divorce decree states otherwise or b) the service member has more than one ex-spouse. It’s first come, first served, so if the first ex-wife was already awarded 50% of the member’s benefits, then any subsequent ex-wives will be denied a portion of the service member’s pay, regardless of what her divorce decree says. This can come as a shock to many and is an important thing to be aware of if your spouse is on his or her second marriage.

One more jurisdictional wrinkle should be addressed. In order for a court to issue an enforceable order regarding a service member’s retirement pay, it must have personal jurisdiction over the service member. By way of example, if a spouse files for divorce in her home state of Georgia, but Georgia has no personal jurisdiction over the service member spouse (no domicile, no residence or no consent), then the Georgia court is not able to enforce any order over the disposition of the military benefits.

Garnishments and Child Support

Each of the military services have regulations which require members to “provide adequate support” to family members. The problem comes with implementation; no branch of the military has the authority to force an individual to pay such support against his or her will.

There is no court martial equivalent to Michigan's felony non-support.

The best way of ensuring you receive the child or spousal support that you are due is by obtaining a court order from the family court in your county. This includes “temporary support orders,” that a court can issue pending a final resolution of your divorce. If a civilian court has issued a formal order and a member of the military still fails to pay, you are then permitted to return to court and obtain or garnishment of your spouse’s wages.

42 USC § 659 is the federal law that gives state courts jurisdiction to order garnishments of wages from military salaries and benefits. Though state law determines the procedure for how to obtain a garnishment order, federal law dictates how the garnishment order is applied to military pay.

Unless state law specifies a lesser amount, federal law provides a limit of 50% of the member’s total disposable earnings for any workweek if the member is currently supporting a second family (spouse or child) and 60% if the member is not supporting a second family. The percentage may be increased by 5% if the child support (or spousal support) arrearage is 12 weeks or more.

42 USC § 665 gives jurisdiction to state courts over military members for child support proceedings. Section 665 has the added provision of requiring that no action shall be taken regarding the garnishment of wages of a service member until the member subject to the child support proceeding has either consulted with a Judge Advocate General, or until 30 days have passed after the service member was given proper notice of the child support proceeding in instances where such a consultation was not possible.

In the last post of this series, we will address adultery and other common divorce-related problems in the context of the active soldier.

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