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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This post takes a look at two bloggers that are on the radar of their respective court systems by blogging as participants in litigation; one is a family practice doctor and criminal defendant, the other a parent embroiled in a family court custody dispute.

Dr. Linda Sue Cheek is charged with over 150 counts of distributing pain medications such as oxycodone, methadone, and morphine without having a valid drug license from the DEA.  She is scheduled to go on trial in Roanoke, Virginia this morning.

Since her indictment back in May of last year, Dr. Cheek has maintained a steady commentary about her case on her blog.  Her comments have included things like: she has been unable to practice medicine due to government collusion; that she and other pain management physicians are being treated by the federal authorities like Colombian drug lords; and that her trial will be "the beginning of the end of government persecution for doctors treating pain."

These comments were deemed sufficiently vitriolic by the local U.S. Attorney, a gag order was sought last week on the basis that Dr. Cheek's posts could pollute the jury pool.  U.S. District Judge Glen Conrad declined to enjoin Dr. Cheek's speech, stating that her First Amendment right to free speech is not suspended because she is on trial.  We here at the Law Blogger could not agree more.

In the family court matter, Daniel Brewington of Indiana has been blogging about his custody case for some time.  Like Dr. Cheek's blog, Brewington does not mince words but rather, takes the direct approach.

Brewington's 2007 divorce proceeding turned ugly early on, resulting in a court-ordered parenting evaluation performed under seal by a clinical psychologist.  The psychologist concluded that, due to the communication breakdown between the parties, sole physical custody should be awarded to Mother.

Dan Brewington took great offense and began to send the psychologist correspondence demanding that he withdraw from the Brewington's divorce case, retract his custody evaluation and report, and that he turn over  his entire file to the Father.

When none of his demands were met, Brewington next filed a complaint with the psychologist's state licensing body and started a blog which contained posts about his case, and his deep disappointment with the psychologist.  Father also posted on other websites, frequently referring to the  psychologist as a "very dangerous man who abuses his power."

Although some of Brewington's conduct was allegedly criminal, his case is noteworthy to the extent of examining his right to free speech in the context of family court litigation.  After Father lost custody of his child in the Indiana family court, he was prosecuted and convicted in a separate proceeding on two counts of "intimidation", attempted obstruction of justice, and perjury.

In the criminal case against Brewington, he was alleged to have characterized the family court judge on his blog as corrupt, unethical, and engaged in illegal behavior.  He also repeatedly referred to the judge as a child abuser.

Brewington was sentenced to 5-years in prison for his deeds.  The 44-page opinion of the Indiana Court of Appeals affirming his conviction and sentence has drew the attention, and criticism, of First Amendment scholars.

The problem that Brewington's case illustrates is that one can be imprisoned in Indiana for what one says, or blogs, so long as the speech is perceived as a "threat".  The First Amendment scholars have issued a call to action, led by UCLA Law Professor Eugene Volokh.

Both cases also point to the multi-faceted threats to free speech that surface again and again in our post-modern, Big Data culture.  You would think that by now, here in America, speech is protected.  As these cases demonstrate, guess again.

We here at the Law Blogger promise to be ever vigilant relative to such threats, reporting them as we see them arise.  Now get out there and express your bad-ass self!

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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.

www.clarkstonlegal.com

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Daniel Quinn

This story flew under the radar for most media, and even some attorneys.  That is, unless you knew Daniel Quinn's sad story out of the Livingston County Family Court.

Yesterday, Governor Rick Snyder signed Senate Bill 557 and Senate Bill 558 into law, revoking our 1956 Paternity Act to allow claims to be filed by a putative [biological] fathers, even when the mother is a married woman; married, that is, to someone other than the putative father.

The original paternity law, that presumes that a married woman's husband is the father of any child born during a marriage, was considered by many family law practitioners to be a throwback from a lost society; a law [poorly] designed to protect the sanctity of the marriage institution.

The new law, introduced by Senator Steven Bieda of Livonia, was supported by the 2,100 members of the State Bar of Michigan's Family Law Section, among them, yours truly.

Five and a half decades after the original paternity act was passed, the real world came crashing up against that law.  Little Maeleigh is now nearly 7-years old and has not been allowed to see her father in over 4-years due to the now-repealed paternity act.

At the time of her birth in 2005, Maeleigh's mother was married, to a convicted drug-dealer.  She was separated from her husband, however, and conducted a long-standing and open affair with Daniel Quinn, Maeleigh's biological father.  For nearly three years, Quinn was an involved father in his daughter's life, with the trio living as a family unit.

All that changed when Maeleigh's mother reconciled with her felon husband, removing Maeleigh from Quinn's custody, and moved out of Michigan.  Quinn's claims of paternity, filed in the Livingston County Circuit Court, were rejected on grounds he lacked legal standing to bring an action because Maeleigh's mother was married at the time of her birth and the husband was irrebutably presumed to be the father.

Quinn is now expected to file a paternity claim under the new law.  For his sake, and the sake of his daughter, he may be able to take advantage of his prior filings to come within the scope of the new law.

The new paternity act, however, lays out very specific limited circumstances under which a family court judge can declare a child to be born out of wedlock when the mother is married, and to make paternity findings.  The putative father [referred to as an "alleged father" in the act] cannot have knowledge of the mother's married status.  There is a three year time limit for the putative father to bring the action to the family court.  There are other limitations set forth in the act.

The new paternity act is hailed as "progress" among my colleagues who have seen first-hand, the heart break that is caused by a law that slams the door in the face of a biological father.  Senator Bieda's public rationale for sponsoring the new law is that the old law was passed in a simpler time, before DNA paternity testing.

The unspoken inference, however, is that we now live in a relatively more permissive and morally lax era.  Don't go thinking that a married woman's children are the issue of her husband.  In our post-modern era, you just cannot operate under that assumption.

And what does that say about us...?

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

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

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

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

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

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

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

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

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

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

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

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

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

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Narcissus admires his reflection.

In my decades of divorce practice, I've encountered folks who, if a psychological evaluation was completed, would be characterized as having narcissistic personality disorder.  A few of these peeps have been clients; others have been on the opposing side.

Either way, everyone involved is in for a rough ride.

Over the past several years, "narcissism" has also taken on a connotation-du-jour.  The diagnosis being made by dime-store psychologists (i.e. parties to family court litigation) whenever the object takes an opposing or contrary view. 

What is narcissim, really?

According to the Mayo Clinic, narcissistic personality disorder is "characterized by dramatic, emotional behavior, which is in the same category as antisocial and borderline personality disorders."   A person with this personality disorder may exhibit some of the following characteristics, according to the Clinic:

• Believing you are better than others;
• Fantasizing about your success, power and attractiveness;
• Exaggerating your achievements or talents;
• Expecting constant praise and admiration;
• Ignoring other's feelings and emotions;
• Believing and acting like you are really, really special;
• Taking advantage of others;
• Expecting others to go along with your often super-sized schemes and plans;
• Exhibiting jealousy toward others;
• Believing others are jealous of you;
• Unable to maintain healthy inter-personal relationships;
• Easily hurt or rejected;
• Fragile self-esteem

If you know someone with more than a few of these traits, run.  If you are married to such a person, get ready for the inevitable divorce proceeding when you finally throw in the towel, realizing that your spouse will never change. 

If you are a lawyer representing such a person, affix your chin strap and bring a lunch.

In the divorce context, the narcissist fares quite poorly.  The above-listed features of this personality disorder are routinely identifed and rigorously addressed by family court professionals. 

In this process, the personality flaws of the narcissist are forced itno the lab for a full-on forensic evaluation.  Many of the tools in the family court professional's arsenal will be brought to bear upon the conduct of the narcissist in an effort to force short-term modification, and to achieve a stable platform.

Some red flags that I've gleaned over the years: a narcissist will change lawyers often, blaming the status of the case on the mistakes of prior legal counsel.  Also, the register of actions in the case of a narcissist will often be a mile long, peppered with hearings, motions, and more hearings.

When a narcissist is embroiled in a divorce proceeding, the children are used as pawns.  Any input from the Friend of the Court [either via a referee, family counselor, or social worker] or from a therapist, is rejected; the narcissistic parent must be dragged to court, kicking, screaming and cursing.

In the years leading up to such a divorce, the other spouse will often report being chronically verbally abused and bullied by the narcissist.  In fact, this dynamic will set the initial tone of the proceeding.

The process will next feature a series of attempts, which will take some time, where the professionals try to arrest the insidious and pervasive conduct of the narcissist.  Arrest, but not change; this person will not change.

The other spouse many times will exhibit classic signs of emotional abuse during this painful process: low self-esteem, exhaustion, a desire to give up or give in.  This person needs a strong focused divorce lawyer.

And counseling. 

During the divorce process, the other spouse is well advised to minimize the face-to-face contacts with the narcissist.  If children are involved, then communicate through emails and texts. 

If you feel threatened at home or during parenting exchanges, seek exclusive use of the marital home.  If you are separated, use a neutral transition point for the parenting exchanges; most family court judges will grant such a request simply to err on the side of everyone's safety.

Finally, stay focused on the process knowing that the process will eventually come to an end.  The Michigan Supreme Court has mandated that county family courts conclude divorce proceedings within a year.

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Many factors affect whether a second marriage will last: the relative age and incomes of the partners, whether either party has children, cohabitation prior to the second nuptials, and the education level of the parties.

And, of course, how could we forget the personality of the ex-spouse; perhaps the most important factor of all.

According to statistics published by the National Institute of Health, approximately 15% of second marriages end within 3-years; and 23% end within 5-years.  Overall, however, the divorce rate for second marriages has drawn even with that of first marriages; about 40%.  Also, in its 2009 report Marital Events of Americans, the Census Bureau claims first marriages last, on average, about as long as second marriages: about 8-years.

Here are some things to think about, and some steps to consider, before tying the knot for the second time.

Prenuptial Agreement.
For those with assets, this document is a must.  To be enforceable, the prenuptial agreement largely depends on two things: a) full disclosure by both parties of all their respective assets; and b) legal representation of each party by separate lawyers.  If your partner does not want to sign such an agreement, then you should seriously consider cohabitation rather than marriage.  This is a harbinger of trouble in the event of a split.

Couples with only modest estates going into second marriages generally do not need the complication of a prenuptial agreement.  If a marital estate grows during the second marriage, that estate will be subject to an equitable property division in the event of divorce.

Solid Estate Planning.
Prior to a second marriage, assets may be transferred into a trust for the benefit of the owner's children.  Also, retirement asset rollovers (from a 401(k) plan into an IRA, for example) can operate to protect the new spouse with survivor benefits, or not, as the case may be.

A Qualified Terminable Interest Property trust (QTIP) typically provides for interest income going to a surviving (second) spouse, with the principle going to the settlor's children from her first marriage upon the death of the second spouse.

Children from a prior marriage can also be provided for using an Irrevocable Life Insurance Trust.  This way, the new spouse can be designated as the beneficiary on the person's retirement assets and the children are designated beneficiaries of the death benefit from the life insurance policy.

Another common practice is to create a separate trust to provide for the distribution of separate property to the children from the first marriages and to create a joint trust to provide for the distribution of the marital estate of the second marriage.

Good Premarital Counseling.
One of the best things a couple can do prior to tying the second knot is to participate in joint counseling.  This should include religious counseling or premarital couples therapy, financial advice, and (separate) legal consultation.  Once separate legal counsel is received, the couple can certainly compare notes in order to get on the same page.

Going into a second marriage with your eyes open improves the chances of a successful nuptials.  When selecting an attorney to assist you with the necessary planning, find one that truly listens to your expressed wishes and pays close attention to the characteristics of your estate.

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Boy, would I welcome the chance to write this appeal.

A family court judge in Bucks County, Pennsylvania has enjoined divorcee Anthony Morelli from operating his web site devoted to his ex-wife; thepsychoexwife.

Judge Diane Gibbons based her decision on grounds the Father's blog, which details his failed marriage, his tortuous divorce process, and its protracted custody battle, is harming his young children.  In fact, the blog does a hatchet job on his ex.

Morelli says the blog is a forum where he can help others "minimize conflict" and connect to share stories. He would like us to think of his blog as a kumbaya community where divorced men can rip their ex-wives with impunity.  Touching, for real.

His lawyers have appealed Judge Gibblons' injunction claiming it is an unconstitutional prior restraint in violation of Morelli's First Amendment right to free speech.

For her part, Morelli's ex-wife says their children know about the blog, which is a shame.

Since he started the blog back in 2007, it has attracted a robust readership of nearly 200,000 new followers per month.  At one point, Morelli was earning money from third-party advertisements on the blog.

We'd love to cultivate that type of readership over here at the Law Blogger; figures that such a negative energy factory would do so well.

Prior restraint of free speech, however, is a serious problem in this case.  Judges, even family court judges, cannot restrain our free speech.  A blog is one of the most common contemporary media designed to amplify freedom of expression.  If a blogger lacks taste and restraint, should a local judge act as a censor?

Judge Gibbons' injunction in the Morelli case will undoubtedly be reversed on appeal.

Do you think family court judges should be able to regulate the content of a party's speech in a high-conflict divorce proceeding?  Where would you draw the line; threats? abusive commentary?

We would like to know what you think on this issue...

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Divorce lawyers are expensive; far too expensive for what most families need in a divorce proceeding.  If you are involved in a divorce, here are some warning signs to help you determine whether you are getting your money's worth for this important service.

1.  Lack of Communication.  A breakdown in communication is the number one cause of client dissatisfaction with their divorce attorney.  If a lawyer does not return your call within a reasonable time, she is either too busy or does not care about your case.

We all know in this era of smart phones that our lawyers get our calls, emails, and text messages within minutes of pushing the send button.  Has your lawyer provided a cell phone contact; do you have access to her staff?  If not, then you are not a priority in their office.

2.  Does not know your case.  Any engaged lawyer will have several cases going at one time.  Every family is different.  But a good lawyer will be sharp enough to master the basic facts and dynamics of your family.  The next time you have a status meeting with your lawyer, listen carefully to the lawyer to determine whether he speaks in general terms; or whether he has a specific plan that applies to the facts of your case; your family.

3.  Excessive Billings.  Do you get sticker shock each month when you examine your divorce attorney's invoice?  More troubling: do you even get a monthly invoice?  Although many lawyers will have you believe that family law is "rocket science", it is not.  If you are being billed more than $250 per hour for non-court related tasks such as preparing "summaries", checklists, or budgets, you are getting fleeced.

One trick unethical lawyers employ is to bill your file at the end of the proceeding, after you cut your deal, and after they see what's available for their fees.  Often in such cases, a premium is baked into the final fee.  Get your fee agreement in writing at the beginning of the process and insist on monthly invoices.  When you receive the invoices, open them immediately as you would any other bill and examine them for accuracy.  If you do not agree with items on the invoice, call the lawyer to discuss it right away; it is more difficult to raise fee issues several months down the road.

4.  Arrogant and Antagonistic.  The "old-school" image of a classic lawyer is that she holds herself above everyone else; is smarter than everyone and not afraid to prove it over and over again.  These lawyers carry themselves with a certian touch of, er, arrogance.

In the trenches of family law, however, the real trick is to find a reasonable solution to your specific issues that works for everyone, particularly if there are young children.  Arrogance is not a trait that gets this done.  Does your lawyer show condescension toward you or does he repeatedly become antagonistic toward opposing counsel?  If so, this is a sign of weakness, not strength.  You may want to consider changing counsel.

5.  Too Many Excuses.  If your divorce lawyer lacks candor, fire him immediately.  Unless he can effectively communicate with you on time regarding your specific issues; unless she follows through and does what she says, delivering service in your case on time, you have a big problem.

We hope these tips help you identify whether you are on the right road with your divorce attorney.  After all, your life is in their hands.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bottom line: pay your child support obligations.

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

 

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

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

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

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

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

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

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

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

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

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