Family Court Judge Cannot “Rubberstamp” FOC Child Custody Recommendation

Many county family courts provide various methods for Friend of the Court evaluation and recommendation in child custody disputes. The ultimate decision relating to custody, however, cannot be delegated to the local Friend of the Court says a brand new Michigan Court of Appeals published decision.

The Ingham County case, Bowling v McCarrick, stands for the principle that family court judges must make their own factual findings in a custody dispute. Those findings cannot rely on the conclusions of the FOC as to whether the parent requesting a custody change has met the initial burden of showing a “change of circumstances” that would justify the modification.

In family courts, judges have wide discretion to make that critical initial determination regarding whether the family circumstances have shifted such that a change involving the child warrants a full evidentiary hearing. Unless that initial showing is made, the custody request goes no further.

Ingham County utilizes a “conciliation conference” where a FOC family counselor makes the initial attempt to resolve a family’s custody dispute. If the conciliation conference does not settle the matter, conciliator files written recommendations to the family court which become the order of the court unless one of the parents object.

Sounds like some major-league delegation of a very important task. One of the aspects to the Ingham County procedure that troubled the Court of Appeals was the lack of standards for a conciliator’s report:

We have not addressed whether the conciliator’s report may be relied upon by the trial court as to a best interest determination should the court find proper cause to consider a change in custody. Given that this record does not clearly set forth the training, job responsibilities, or authority of the conciliator in Ingham county, and given the lack of any statewide court rule governing conciliation, we cannot determine if the conciliator’s report would fall within MCL 552.505(1)(g) and MRE 1101. Accordingly, if it finds proper cause to consider a change in custody, it would be prudent for the trial court to conduct a full evidentiary hearing on the best interest factors rather than to rely on a conciliator’s report.

Family law professionals are faced with the prospect that not every dispute merits a full-blown evidentiary hearing. On the other hand, when faced with a never-ending supply of disputes, the family court staffers tasked with making initial threshold custody decisions are pressured to be very selective in recommending a full hearing based on the requisite “change of circumstances”.

Sometimes, on the wrong day, or due to the distortion caused by a quick presentation of a complex set of facts, an initial determination by a low-level professional can be wrong-headed, particularly when a case is not allowed to proceed. Although not every case deserves to proceed to a hearing, families are poorly served by incorrect decisions in this regard.

What the Bowling panel’s decision now requires is for the family court judge to make her own determination, based on an offer of proof made by the moving party, as to whether a sufficient change has occurred. The family court judge cannot rely on the recommendations of a FOC staffer such that it becomes the proverbial “rubber stamp”.

At our law firm, we believe this is a solid ruling by the Court of Appeals on an important family law issue. Judges must make their own custody determinations; even the initial determinations that are so evidence-intensive.

In doing so, they can rely on the assistance and resources of the local Friend of the Court. The judges should avoid, however, a complete reliance to the point of abdication of their judicial responsibility. Efficiency does have its limits in the messy industry of child custody.

If you or a family member are facing a custody motion or a hearing, contact our law firm to discuss your evidentiary options. We offer a free consultation regarding the specifics of your case.

Oakland County Lawyers

 

 

 

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Adultery Still Affects Alimony

In one of its first published opinions of the year, the Michigan Court of Appeals ruled that an extramarital affair can affect an alimony award in divorce proceedings that go to trial. Adultery is one factor the family court judges can and should consider in resolving spousal support.

The case, Cassidy v Cassidy, comes out of the Genesee County Family Court. Judge Kay Behm, a judge’s judge if there ever was one, issued a well-reasoned opinion that was challenged and affirmed on appeal. Husband had a two-year affair prior to Wife filing for divorce, and he spent, paid or “loaned” over a half million dollars to his mistress.

Leaving no stone unturned, Wife named the other woman as a third-party defendant. After 15-days of trial, mostly devoted to resolving the issue of whether Husband and his mistress intended to defraud Wife, the court issued a judgment of divorce that is very favorable to Wife. Judge Behm also imposed liability on the mistress, who joined in the appeal.

Wife put in 30-years at General Motors, helped raise Husband’s daughter, and remained faithful during the marriage. Husband had periods of unemployment where Wife served the family as the sole bread winner. Husband incurred tax liability due to under-reported income.

With these proofs going in, it did not take Judge Behm long to construct an equitable judgment of divorce. Husband was ordered to pay $1000 per month in spousal support; he was held solely liable for any tax debts; and was ordered to pay Wife’s attorney fees. The mistress was ordered to pay back a portion of what came to be characterized as a loan from Husband to Mistress.

All of Judge Behm’s decisions in this sordid yet complicated case were affirmed on appeal, including her ruling on a dispositive motion form the Mistress. On appeal, the mistress’ claim was rejected that she, as a third party, was entitled to a jury.

Now that’s a trial we would have paid to see. A fire sale on the Hummer and the husband’s [latest] business, alcohol, gambling and, of course, sex. “Enough blame to go around”, Husband’s lawyer was quoted as saying.

For us practitioners over here at Clarkston Legal, this soon-to-be-published decision of the Court of Appeals -affirming Judge Behm- signals that judges can and should take a spouse’s bad conduct into account; that there are consequences for morally bad behavior.

Oakland County Lawyers

 

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Parenting Time Coordinators in Family Court

In high-conflict divorce cases with minor children, one of the most heated issues is parenting time. Daily routines, recreational activities, discipline, and health care management are often disputed between parents.

Family court professionals seek creative solutions to these difficult and often recurring problems. Given the nature of the disputes, using all the tools in the toolbox becomes necessary to resolving parenting time conflicts with the goal of peace between the parties.

Unfortunately, high-conflict divorce cases are not so easily settled; the peace sought is difficult to find. In the past, when faced with such a case, a family court could appoint a parenting time coordinator to assist the court and the parties with resolution of their vexing issues. Parenting time coordinators conserve judicial resources and create another impartial arbiter to make recommendations on the many parenting time issues.

Until recently, however, no statute governed the appointment and employment of the parenting time coordinator. Utilization of a coordinator varied greatly from county to county and from judge to judge.

In January of 2015, the parenting coordinator bill was grafted into the child custody act, officially sanctioning the parenting time coordinator with specifically enumerated powers. What remains the same when appointing the parenting time coordinator is an agreement by the parties to the use a coordinator and the specific issues the coordinator can address.

When considering a parenting time coordinator it is important to create a detailed appointment order to properly define the scope of authority of the parenting time coordinator. It is also important to determine whether a parenting coordinator’s recommendation will have interim effect, or even binding effect, for situations where a party doesn’t agree with the recommendation and desires an audience with the court.

The parenting time coordinator may be authorized to have access to relevant information and interested persons to the case including: the minor children; therapists for the parties or child; school, medical or activity records; teachers, principals or aides; evaluations or psychological testing results; and the parties and their respective attorneys. The coordinator is empowered to speak with both parties, or only one party, and to exclude another party or their attorney. However, both parties will have the opportunity to make their case to the parenting time coordinator prior to any recommendations by the coordinator.

It is important to think about a number of factors when you are considering a parenting time coordinator for your case. Primarily, you must think about whether a coordinator is right for your situation and what the appointment will require.

The chief purpose of the parenting time coordinator is to alleviate conflict, conserve resources and stop parties from continuously filing motions and going to court. If one party or the other refuses to abide by the parenting time coordinator’s recommendations then there will be no savings for the parties, or the court, and the parties will have added an additional layer of cost to the case.  You and your attorney should determine whether the appointment of a coordinator can create stability and peace or is just another avenue for conflict.

Once you have determined that a parenting time coordinator is appropriate, you and your attorney need to consider what type of coordinator is right for the job. Whether a strong personality or a soft touch is needed in your case.

Deciding between a lawyer, therapist or other qualified individual is important based on what goals you are looking to achieve with the parenting time coordinator. Another crucial consideration is that judges opinions still vary as to how and when to use parenting time coordinators. Knowing if your judge favors their use and who the judge prefers to serve in the role will shed some light in this area. If a judge trusts a parenting time coordinator, they are more likely to adopt recommendations.

In sum, decisions surrounding the need and use of a parenting time coordinator in a high-conflict divorce are legion. If you think that appointing such a professional would be helpful to your case it is important that you fully understand the benefits and drawbacks based on the particular facts to your situation.

It is important to consult with an experienced attorney who knows the courts and is familiar with a wide-range of individuals who serve as parenting coordinators in such high-conflict divorces. Give us a call to schedule a free consultation to decide whether a parenting time coordinator is right for you.

Oakland County Lawyers

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Child Custody: Paternal Grandmother vs Mother

This post examines child custody, grandparent visitation and the rights of a biological parent.

A recent child custody case from Livingston County pits a paternal grandmother against a mother. The Michigan Court of Appeals held that a Friend of the Court referee violated a mother’s constitutional right to make decisions for her child.

Sad Factual Background

The point of contention in the case, Zawilanski vs Marshall, involved a determination of grandparenting visitation by the Friend of the Court. The case has a very sad factual background.

When the child, born of wedlock, was just four months old, Mother suffered a traumatic brain injury in a car accident. She was in a coma for months.

The paternal grandmother began caring for the child; sadly, the child’s father died in 2014. As the mother’s condition improved, the Friend of the Court recommended a progressive parenting schedule vis-a-vie the grandmother.

As the parenting schedule pivoted toward the mother, grandmother petitioned for guardianship of the minor child along with expanded visitation. Grandmother prevailed, convincing the referee that she was the one constant in the child’s life.

The family court judge ordered grandmother to have visitation equivalent to a non-custodial parent; Mother appealed.

Ruling on Appeal

Reversing the family court, the Michigan Court of Appeals held in favor of the Plaintiff-Mother:

Further, the referee’s finding that petitioner overcame the fit-parent presumption ignores the fact that plaintiff agrees in principle that petitioner should have grandparenting time, and proposed a grandparenting-time schedule, albeit one that recommended less grandparenting time than petitioner was currently enjoying. Thus, given that plaintiff was denying some, but not all, grandparenting time, in order to overcome the fit-parent presumption, petitioner had to show that plaintiff’s denial of the amount of grandparenting time that exceeded her recommendation created a substantial risk of harm to the child. No evidence was presented on this question.

This ruling carefully balances the interests of both mother and grandmother. In our opinion, the Court of Appeals correctly found that balance in mother’s favor.

The paternal grandmother will not lose her connection with the minor child; the child still has the benefit of consistent visitation with her grandmother; but the biological mother, now adequately recovered from her TBI, can properly exercise her constitutional right to make decisions regarding the care, custody and management of her child.

We Can Help

If you or a family member have grandparent visitation issues, contact our law firm to schedule a free consultation.

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Changes to the Michigan Child Support Manual

Beginning January 1, 2017, the formula used to calculate child support in Michigan will change. Approximately every four years, the State Court Administrator’s Office and the Friend of the Court Bureau work together to revise the formula. In doing so, they take into account changes in the law as well as the ever-increasing cost of living.

Child Support is explained in the Michigan Child Support Formula Manual; the latest edition comes out in January and details the following major changes.

Health Care Coverage

The most significant changes are in response to the Affordable Care Act and its nation-wide insurance mandate. Previously, the cost of a parent’s health insurance coverage was not considered in calculating their income available to pay child support. Under the new formula, the cost of mandatory health care coverage will be deducted from a parent’s income available for support. With basic policies costing hundreds of dollars per month, this change to the formula could result in a substantial reduction in support for many parents.

The growing popularity of high-deductible plans combined with a Health Savings Account (HSA) was also a consideration in the new formula. Employer contributions to a parent’s HSA are no longer considered income for the purpose of calculating child support.

Determining which parent should maintain health care coverage for the children is easier under the new formula. The supplement to the formula provides a decision tree for determining who should provide the insurance, based on the cost of coverage, quality of coverage, and likelihood that a parent will maintain the coverage for the child.

Child Support and Business Owners

The new formula clarifies the allowable deductions for parents who own a business. Beginning on January 1, 2017, a parent may deduct the straight-line depreciation of personal property from their income available for support. This provision excludes personal vehicles and home office expenses.

Parents who own a business will continue to be subject to heightened scrutiny from the Friend of the Court and attorneys performing child support calculations. Business tax returns, profit and loss statements, and balance sheets are often necessary in order to calculate an accurate child support obligation.

Imputation of Income

Often, one parent chooses not to work, despite being capable of doing so. In that case, the child support formula imputes them with the income that they could be earning. The imputed income calculation is a sophisticated one, the new formula calls for consideration of a number of factors including the geographic region and present condition of the non-working parent.

The formula also specifically prohibits the practice of imputing income based on non-specific calculations, including the concept that a non-working parent can always be imputed with full-time, minimum wage employment.

Changing an Existing Support Order

Support orders entered prior to January 1, 2017 will be calculated using the old formula, and there is no automatic review when a new formula is created. If the new formula would result in a substantial change in a parent’s support obligation, they can file a motion asking the court for that reduction. The threshold for modification by the Friend of the Court is $50 or 10% of the original amount, whichever is greater.

We Can Help

If you have a child support issue, consider scheduling a free consultation to review your options.

Oakland County Lawyers

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Family Dollar and 7-11 Stores to Accept Child Support Payments

Our law firm tracks innovations designed to improve payment of child support. Recently, a new child support program caught our attention.

The Michigan Department of Health and Human Services announced a program that allows cash child support payments at select Family Dollar and 7-11 retailers. This convenient service allows payors that need to pay their support obligations in cash, or lack reliable transportation, to pay at 550 select retailers across the state.

Some payors move away from the county where the case was filed. If these payors lack employment and lack the sophistication to make electronic payments [i.e. they may not have the resources for a computer with an Internet connection] they would need to travel directly to the Friend of the Court to make their payments.

MDHHS, through its Michigan State Disbursement Unit, partnered with PayNearMe and the select retailers to provide this convenience for consumers of family court services. The MiSDU processes over one billion dollars of child support payments annually.

Employers automatically deduct child support for many payors. However, not all payors have steady employment conducive to support payments.

Seasonal employees and cash employees cannot have automatic payroll deductions. Also, self-employed payors and unemployed payors must make other direct-payment arrangements.

This new service adds a convenience factor encouraging parents to stay on top of their child support obligations. Payors can click on this link and follow the simple steps to make a payment; one step lists all participating retail stores.

Payors using PayNearMe receive a code on their cell phone. The payor simply takes the code to the nearest participating retail store and make the cash payment.

There is a $1.99 service charge to use the service. Payments take 3-days to process, just like any other form of electronic payment.

We Can Help

If you have issues with payment or collection of child support, consider scheduling a free consultation to discuss your options.

Clarkston Legal

 

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Family Pets are Personal Property in Divorce

Pets are considered property in divorce, to be divided in the settlement agreement. If the parties do not agree on how the family pets are to be divided, family court judges take into account a variety of factors to make this difficult decision.

A divorce industry group noted in a 2014 survey an increase in the incidents of recorded pet custody disputes. Sometimes such disputes are strategic, with one spouse hoping to gain a concession in another area in exchange for capitulating on the family pet; other cases reflect the difficulty of disposing of a pet like a piece of chattel.

When faced with such gut wrenching decisions, a family court judge has many things to consider, such as:

  • If the judge deciding the case is an animal-lover, the “best interests” of the pet will factor into the decision, analogous to child custody and parenting time disputes;
  • Does one spouse have a stronger emotional bond with the pet;
  • If the family has pet adoption paperwork or a thoroughbred designation, the court may consider the spouse whose name appears on the documents to have the edge;
  • The judge could consider which spouse has the better living arrangement, work schedule, or means to care for the pet;
  • Frequent travel is not optimal for the pet;
  • Has one spouse ever been abusive toward the pet;
  • The party that has physical custody of the minor children may have an advantage relative to the pet;
  • A prenuptial agreement may address the ownership rights of pets that either spouse had prior to the nuptials.

Believe it or not, the Michigan Legislature proposed legislation a few years ago that would require divorcing parties to file a pet custody agreement with the family court. If the parties could not agree, then the judge would make the decision.

One controversial proposal debated in the legislative process included sending the family pet to the Michigan Humane Society whenever the parties could not agree on “custody” or ownership. Fortunately, these bills went nowhere and have since stalled.

Family court judges must equitably divide property. Thus, each case is susceptible to a broad range of outcomes. Often, the judge’s world-view drives the bus. Fortunately, families going through a divorce often find sufficient common ground to resolve these disputes.

Here is an additional article on the subject published two years ago in Forbes.

Free Consultation

If your divorce involves a property dispute over the family pet, contact our law firm to discuss your options.

Oakland County Lawyers

 

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No Parenting Time for Bio-Mom’s Same-Sex Partner

Despite  marital equality, same-sex partners and parenting time pose significant problems for unmarried couples. Often, specific cases highlight the heartbreak that comes with uncertainty in the law.

Every now and then, this blog highlights a case that really captures some of the progressive features of our society. The Michigan Court of Appeals decided the published thus binding decision in Lake v Putnam.

Same-Sex Partners and Parenting Time

This lesbian couple -together but unmarried for nearly 14-years- used artificial insemination for child birth. Defendant Kerri Putnam was the biological mother. Plaintiff Michelle Lake never adopted the child but raised the child as though she was a legal co-parent.

Legal trouble arose when the couple separated and the biological mother, Kerri Putnam, refused to allow Lake to see the minor child. Plaintiff Lake filed a custody action in the Washtenaw County Family Court.

The Non-Biological “Parent”

The biological mother filed a motion for summary disposition based on the long-established precedent that standing to bring a custody action in the family court is narrow; an unrelated third-party does not acquire legal standing simply by residing with the child. The family court judge denied the biological mother’s motion for summary disposition and awarded Plaintiff a supervised parenting schedule.

Michigan Court of Appeals Decision

On appeal, Plaintiff Lake relied on the seminal Obergefell v Hodges same-sex marriage and adoption case decided by the SCOTUS in 2015 to raise claims of Due Process and Equal Protection.

The Michigan Court of Appeals rejected Plaintiff’s constitutional  claims based on the lack of evidence that the parties were ever married or even intended to become married. Without the requisite legal status of being a spouse to the biological parent, having any legal rights to the child she raised and loved for several years was legally beyond her reach.

Out in the Cold

Ms. Lake may never see the child again; that is now entirely up to the biological mother. Obtaining relief through a further appeal to the Michigan Supreme Court is highly unlikely; the law is that clear on this complex subject.

This decision features Lake’s flawed but noble argument that standing arose under the “equitable-parent” doctrine. The intermediate appellate court rejected that assertion based on a dispositive shortfall: the child was never born out of wedlock as required under the doctrine.

In making her argument, Ms Lake relied on an Oklahoma case that awarded parenting time to a same-sex partner from a failed relationship. That so-called “parent” was in a similar position as Ms Lake. Custody was awarded under the guise of in loco parentis; a Latin phrase that translates to, “in the place of a parent.”

No Right to Parent without Biological Connection or Marriage

Put simply: an unmarried same-sex couple’s demise does not give rise to a claim under the equitable parentage doctrine because that doctrine only applies to married couples. The non-biological partner must seek standing either through a same-sex adoption or through marriage.

In the end, it is quite a shame that Ms. Putnam, the biological mother, holding all the cards and all the legal power, elects to terminate Ms. Lake from her daughter’s life entirely. Ms. Putnam may have won the case, but her daughter lost a piece of her heart.

Clarkston Legal

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New Domestic Violence Law in Family Court Mediations

Last month, Governor Rick Snyder signed HB 4476 which outlines standards for mediators relative to domestic violence. This new law requires the domestic relations mediator to, “make reasonable inquiry as to whether either party has a history of a coercive or violent relationship with the other party.”

In Oakland County, all divorce cases are required to go to mediation prior to trial. Since very few divorces are resolved through trial, most contentious cases are resolved at mediation.

The new law implements the domestic violence screening protocol provided by the State Court Administrative Office. This protocol was established in 2014 by family court professionals; it is a useful 60-page document that covers the entire mediation process within the context of domestic violence and includes a useful questionnaire and screening process.

Over the years, we have acquired significant experience dealing with cases that contain a domestic violence component. When one spouse or parent is the victim of continuous verbal abuse, coercion, control or physical abuse, there is no level playing field when it is time to leave.

Also, the well-recognized “cycle of violence” makes the victim reluctant to stop the cycle; the violence and abuse perpetuates itself until the situation comes to a head. Usually, this occurs within the context of an open case in the family court.

In all family court cases, mediation and arbitration have been disfavored modes of proceeding when domestic violence is present. This new law aims to better train mediators and family court professionals to recognize and address the problem of domestic violence.

The Oakland Mediation Center and HAVEN have been tracking the new legislation. OMC has scheduled training sessions for mediators in order to orient them to the domestic violence protocol and questionnaire.

If you or a family member are a victim of physical or verbal abuse, consider contacting HAVEN for some immediate options that will ensure your safety. Then consider contacting a lawyer to develop some long-range solutions.

Our law firm is ready to utilize this tool in dealing with these tough situations.

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Tax Considerations in Divorce

Like death, taxes are a part of life; a certainty. When going through a divorce, there are significant tax considerations to take into account when negotiating a property and support settlement.

This post touches on several of the most common tax considerations involved in negotiating a divorce settlement: spousal support payments, retirement assets and property transfers.

Spousal Support.  The primary consideration relative to spousal support is that the periodic payments are tax deductible to the payor and income to the payee. Even payments to third parties -to a mortgage lender for example- may qualify as an alimony payment and thus be tax deductible to the payor.

The relevant section of the Internal Revenue Code governing whether a specific type of payment qualified for the spousal support tax deduction is IRC 71. Depending on circumstances, a support payment that would otherwise qualify for a deduction as alimony may be elected not to be treated as such for tax purposes.

Typically, alimony is secured by a life insurance policy owned by the payee on the life of the payor. Also typical is that a spousal support obligation is not dischargable in bankruptcy.

For the payor of support, you pay, then you die. To qualify as alimony under the Code, the payment obligation must end with the life of the payor.

Retirement Assets.  The two primary types of retirement assets divided in a divorce proceeding are deferred compensation plans [401(k) and IRA] and defined benefit plans, such as a pension.

When negotiating a divorce settlement, there are tax implications involved with how these assets are divided. For example, in a deferred compensation plan, the fund contains un-taxed dollars. In the divorce process, the alternate payee receiving a roll-over from a qualified plan can tap those dollars at any age, provided taxes get paid in the year of the disbursement. This provides a source of cash when the alternate payee needs it badly.

Pensions are different. When a pension is properly divided, the tax implications arise in that the alternate payee receives taxable income at the participant’s earliest possible retirement age, or whenever monthly payments begin.

Other more complicated tax issues arise when dividing non-qualified plans or other employment-related benefits such as stock options. These usually require the review of a tax professional prior to concluding the property negotiation.

Property Transfers.  In general, transfers between spouses in a divorce proceeding do give rise to a taxable event; they are deemed as gifts between parties. When such transfers occur, there is an adjusted basis that is used to assess any gain or loss.

Transfers to third parties -as opposed to a spouse- can complicate tax considerations as they are treated as two separate transfers. Caution must be used when structuring such a property division.

There are also many types of specific property transfers that have complicated tax treatment meriting the review of a tax specialist. These transfers include:

  • recapture of depreciation and investment tax credits;
  • installment payments;
  • U.S. Savings Bonds;
  • S Corporation shares;
  • passive activity property;
  • life insurance policies; and
  • capital loss carry-forward.

To properly assess these types of property division, be sure your divorce lawyer utilizes a tax professional on the team.

If you are facing a divorce that involves any of the issues touched on in this post, consider scheduling a free consultation to assess your options.

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