Michigan Custody and Parenting Time During COVID-19

On March 23, 2020, in response to the COVID-19 outbreak, Michigan Governor Whitmer issued Executive Order 2020-21 which was a “Stay Home-Stay Safe” order requiring Michigan residents to shelter in place and restrict travel.  The Order was scheduled to expire on April 12, 2020, however, the Order may be extended and Governor Whitmer indicated on April 6, 2020 that an announcement may be coming shortly.

Many parents have had questions about how this Order affects custody and parenting time.  First and foremost, if you have specific questions, you should seek the advice of an attorney.  However, there are some resources providing general guidance and clarification for handling custody and parenting time issues during this “Stay Home-Stay Safe” order.

First and foremost, Executive Order 2020-21 allows for the transportation of children between homes pursuant to a parenting time agreement.  This is stated in section (7)(b)(4).  Even though we are required to shelter in place, parents can drive children to and from homes pursuant to their custody and parenting time agreements or court orders.  The “Stay Home-Stay Safe” order itself is not grounds for refusing to comply with a custody/parenting time order or agreement.

The Michigan Supreme Court provided some guidance on March 16^th prior to the “Stay Home-Stay Safe” order.  That guidance, found here, encouraged parents to work together to keep things as normal as possible for their children.  To the extent that parents can’t agree otherwise, the written agreement or order still applies and should be followed.

 On April 2, 2020, the Michigan State Court Administrative Office published FAQs about Custody and Parenting Time During the COVID-19 Outbreak.  The most frequently asked questions about custody and parenting time are addressed, along with a helpful list of resources and information.

What happens if parents don’t agree, or a parent is violating the custody/parenting time court order or agreement?  With the “Stay Home – Stay Safe” order in place, most courts are closed or are only handling emergency issues.  It is crucial to check the website of the courthouse for updates and information, and/or speak to an attorney for guidance. For example, Washtenaw County Judges are hearing some emergency issues via video conferencing with ZOOM.  The procedures for the Court are detailed on their website here.  However, as the situation is frequently changing, check back often for updates.

I can help you with your family law needs. I am working remotely during this time of shut-down, and can be reached by email at walton@psedlaw.com, or by phone at 734-328-2858.

Divorced or Unmarried Parents and COVID-19 Federal Economic Impact Payments

On March 27, 2020, the CARES Act was enacted to financially assist American families and business affected by COVID-19.  The most widespread relief will come in the form of economic impact payments, and those payments are being issued immediately.  With some exceptions, the payments are $1,200 per adult and $500 per child.  The details of the payments can be found on the IRS website:  Economic impact payments:  What you need to know.  

What happens if you are divorced?  Who receives the payment?  What if you are divorced with children?  Or unmarried with children? What then?  These are all very important questions and there are some 

If you finalized your divorce after you filed your 2019 tax return, then you should know that the payments will be issued pursuant to that 2019 tax return, either by direct deposit or by check mailed to the address on the return.  However, each adult is entitled to their own payment so if this is the case, you should reach out to your ex-spouse or seek the advice of an attorney. 

 What about the $500 payments per child if you are divorced?  Again, the guidelines state that these payments are issued based upon the 2019 tax return, or if not filed, the 2018 tax return.  That means that whoever claimed the child in 2019 would receive the payment (or 2018 if 2019 has not been filed).  Specific questions about these payments should be directed to your attorney, as this issue is more complicated and may require further legal analysis.

I can help you with your family law needs. I am working remotely during this time of shut-down, and can be reached by email at walton@psedlaw.com, or by phone at 734-328-2858.

Paternity is Redefined in Michigan

Paternity in Michigan has been completely redefined. The law in Michigan since 1956 has presumed that a child born in a marriage was the product of that marriage. This presumption existed even if the husband was not the biological father, and that fact could be proven.

As of June 12, 2012, pursuant to a new law signed in by the Governor of Michigan, paternity can now be established by the biological father even if the child was born in a marriage. This new law grants biological fathers rights over presumed fathers (men presumed to be the father because the child was born during the marriage.

However, very specific circumstances have to exist in order for paternity to be established, and there are extensive requirements in place with the new law. The primary circumstance that must exist is that paternity must be sought within 3 years of a child’s birth, or within 1 year of the entry of an Order of Filiation (paternity), whichever is later. This is merely one requirement, and the remaining requirements are too numerous to list here.

There is also a provision in the law allowing paternity actions under the new act even if the 3 year requirement isn’t met, provided they are filed within 1 year of enactment of the new law, again, under specific circumstances.

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Kelsey Grammer's Cross-Country Custody Battle

As if we didn’t hear enough about celebrity family issues this week. Kelsey Grammer has filed legal papers in court seeking sole physical custody of his two children: 9 year old daughter Mason, and 6 year old son Jade. The kids actually live in L.A. with their mother, Camille Grammer, while Kelsey lives in Chicago with his new wife, Kayte Walsh. In the divorce, Camille Grammer was granted physical custody of the children, but Kelsey Grammer apparently wants to change that and move them to Chicago: Kelsey Grammer Trying to Rip Custody from Camille.

What does it take to win a custody battle, and move two children from their home in LA to Chicago? In Michigan, this is no small feat. First, the Court must determine that there has actually been a change in circumstances or that there is good cause in order to change a custody arrangement. If the Court determines that there has been a change in circumstances or good cause, then the Court must determine that the proposed custody arrangement is in the best interests of the children. This means that the Court must listen testimony and review evidence surrounding 12 best interest factors, listed in MCL 722.23. In the case where the proposed custody change would essentially transfer the children physically from one parent to the other, the Court must find that the proposed change is in the best interests of the children by “clear and convincing evidence.”

Additionally, in Michigan, if you not only want to change custody, but then want to move the children out of state, the Court must consider other issues. In what is called the D’Onofrio test, the Court must find that the relocation is in the best interest of the children by a preponderance of the evidence after consideration of the following factors:

1. Will the change improve the quality of life for the child and parent
2. The degree to which each parent has complied with their parenting time schedule
3. The degree to which the court can modify parenting time to preserve & foster the relationship
4. The extent to which the opposing parent is motivated by financial reasons
5. Domestic violence, regardless of whether it involves the child

Obviously, a cross-country custody battle is not as easy as just filing legal papers asserting what you want. The process is extremely involved and requires substantial evidence that the proposed custody change will be best for the children. This case provides good reminder that the Courts are there to determine what’s best for the kids—not just what the parents want.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Parenting Time: Are Courts Biased?

Parenting time is the legal term used in divorce for the specific schedule that each parent has with their children. Two recent studies conducted by Arizona State University raise some questions about whether the family courts are biased in their awards of parenting time.

I blogged last week about the parenting time schedule that the Wayne County Circuit (Family) Court recently implemented. Effective this year, parents that have a judgment or order that specifies “reasonable parenting time” will be bound by the court’s schedule, found here: Wayne County Circuit Court Co-Parenting Plan. Interestingly, the Co-Parenting Plan establishes parenting time plans time based upon the child’s age. Even a brief review of the Co-Parenting Plan reveals that in no way does it provide for equal time for both parents. The Co-Parenting Plan provides the non-custodial parent (usually dad) overnights on an every-other weekend basis, with one overnight each week.

However, the studies conducted and summarized here, Public Support Rising for Joint Custody, reveal that there is an incredible growing public support for equal time for both parents. Equal time was preferred in these studies even in high-conflict situations. The participants of the study made mock decisions as a judge in custody disputes, and overwhelmingly granted equal time to the mother and father. The studies reveal that the public believes that courts favor mom, and that the courts should instead be giving equal time with the children to both mom and dad.

The law in Michigan regarding parenting time states that “It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents… parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship.” MCL 722.27a. Many believe that this goes hand-in-hand with giving mom and dad equal time with the children. Many believe that the enforcement of cookie-cutter parenting time guidelines or even the Wayne County Co-Parenting Plan does not promote a strong relationship between the parents and their children.

It will be interesting to see how the courts respond to the growing public demand for equal parenting time, especially in light of recent parenting time guidelines that generally favor mom.

Lesson to learn? If you are going through a divorce and you are unsatisfied with the court’s parenting time plan, make sure that you or your attorney negotiate the specific time that you want time with your children. Agree on a schedule that works for the best of your own family.

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Detroit Divorce TV

The Michigan Film Office has just approved film incentives for a pilot courtroom reality TV show: “Domestic Justice.” The TV show is described as an “explosive new judicial reality show” where “real life drama meets common sense justice.” The episodes will involve domestic disputes involving custody and parenting time, but also bullying and harassment. The justice will be administered by Wayne County Circuit Court Judge Vonda Evans.

So is this going to be another Judge Judy show? A close look at the TV show’s website may provide an answer to this: Domestic Justice. It appears that the unique twist of Domestic Justice is that it will employ short-term and long-term counseling and therapy supervision for the participants, and appears that the focus of the “justice” will be on finding resolutions that integrate on-going counseling for everyone involved. The goal is also to provide follow-up segments to track the progress of the people involved in the dispute.

Do you have an issue that you want to submit for “common sense justice?” If so, the website Domestic Justice provides you with a list of questions to answer, and if your issue is relevant to the show, a submission form for you to fill out.

Keep posted for more details—and read more on MLive’s website: Michigan Film Office approves Detroit-filmed judge show for incentives.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Removing the “Sheen” from Celebrity Divorce

Sorry, Charlie. As if Charlie Sheen hasn’t had enough “winning” media coverage—he received even more as his divorce with Brooke Mueller was finalized this week. The media has focused solely on money (big surprise), so all news stories have only discussed the amount of the property settlement and monthly child support award.

However, TMZ posted the actual divorce judgment online here: In Re Marriage of Sheen. There are some interesting things to note in that Judgment other than just how much money was awarded.

First, despite the fact that Charlie and Brooke are celebrities, the custody, parenting time and child support provisions of their Judgment look pretty similar to the provisions that are in most “average Joe” divorce judgments, including those that I have drafted. For example, Charlie and Brooke share legal custody of their 2 year old boys, Bob & Max. While Brooke has sole physical custody, the parenting time is pretty equally shared. Brooke and Charlie share all holidays and have equal vacation time with the kids. They also agreed to allow the other to take the kids out of state without advance written permission from each other. Charlie must provide health insurance for the boys, and Brooke and Charlie agree to equally share the cost of any of the kids’ extra-curricular activities. Brooke and Charlie also agree that neither can make unilateral decisions about where the boys attend school, but if private school is chosen, Charlie will pay the tuition. Those are pretty “normal” provisions in any divorce.

One of the more interesting and unique provisions in the Judgment involves child support. Brooke was awarded $55,000 per month (yes, per month) for child support for the boys. The Judgment goes on to state that Brooke’s child support shall never be less than the child support that Charlie Sheen pays to his other ex-wife, Denise Richards. The Judgment continues, stating that Charlie and Brooke both recognize that Denise has more assets and earning capacity then Brooke, and that Denise’s children have trust funds, while Brooke’s children do not. Thus, the absolute minimum child support that Brooke will receive will never be less than child support paid to Denise. This is a pretty interesting provision because it provides a base child support number without consideration of income or parenting time. This would be a difficult provision to enforce in Michigan.

What else is noteworthy in this Judgment? Well, Brooke signed a prenup or “Premarital Agreement” on May 27, 2008, before she married Charlie. The Divorce Judgment abides by this prenup, which means that Brooke receives zero spousal support. Yes, Brooke waived her right to alimony now and forever. While that may be surprising in this divorce to waive alimony, it is pretty common in most divorces.

Anything else stick out? Brooke agrees to never talk to the media about Charlie’s alleged sexual affairs and alleged drug use, and Charlie agrees never to talk to the media about Brooke’s alleged drug use. Interesting.

By taking a closer look at Charlie and Brooke’s Divorce Judgment, one can easily see that despite their celebrity status, Charlie and Brooke’s issues are resolved in a pretty standard way.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Wayne County Family Court Establishes Parenting Time Guidelines

In a divorce or custody case involving minor children, the parents must ultimately decide how legal custody, physical custody, and parenting time is going to be shared. Parenting time is the legal term for the specific schedule that each parent has with the children. (courts used to call this “visitation”—obviously “parenting time” is a much more preferable term). Often times the parents will agree to work together, and in those cases the issue is resolved with the order or judgment specifying “reasonable parenting time.” This avoids having to agree to a rigid and specific schedule. “Reasonable parenting time” has typically meant that the parents will work together to create and maintain a flexible schedule.

However, that is no longer the case in Wayne County Family Court. Effective this year, 2011, Wayne County has established parenting time guidelines titled “Wayne County Circuit Court Co-Parenting Plan.” Effective this year, parents that have a judgment or order that specifies “reasonable parenting time” will be bound by the court’s schedule, found here: Wayne County Circuit Court Co-Parenting Plan. Interestingly, the Co-Parenting Plan establishes parenting time plans time based upon the child’s age.

In theory, this is a good thing. The Co-Parenting Plan will give parents a schedule that is predictable and manageable. It also simplifies the negotiation process. Parents can now just agree to “reasonable parenting time” in a judgment or order, and have a schedule that they can rely on and work from.

The down side? If a parent is unaware of the Co-Parenting Plan, and agrees to “reasonable parenting time” in their order or judgment, then despite any agreement otherwise, the court will enforce the Co-Parenting Plan. If one parent asks the court to enforce parenting time, the court will hold both parents responsible for following the Co-Parenting Plan, even if they were not aware of it at the time their order or judgment was entered with the court.

An interesting note: published opinions from the Michigan Court of Appeals have held that a request for a parenting time change must be based on a change in circumstances or good cause, and also a determination that the requested change is in the best interests of the child. However, if you look at the Co-Parenting Plan closely, the parenting time schedule changes as the child grows older. The Co-Parenting Plan is based upon the notion that parenting time should change automatically as a child ages, without showing a change in circumstances or good cause. Many parents, judges and attorneys firmly believe that this should always be the case. The Michigan Court of Appeals has yet to publish an opinion supporting an automatic change based upon age. Until that happens, there will be some conflict between the established law and the implementation of the parenting time guidelines.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

Mel Gibson’s Custody Trial

Judge Gordon in Los Angeles is once again the trial judge for a celebrity couple.  He has previously decided issues of custody for Britney Spears and Kevin Federline, and is currently the trial judge in the divorce of Frank & Jamie McCourt and in that case will determine who will own the Dodgers.

Now, Judge Gordon will determine custody, parenting time and child support for the daughter of Mel Gibson and Oksana Grigorieva.  Specifically, Judge Gordon will have to decide who has custody, how much child support should be paid, how frequently each will see their daughter, and under what conditions—meaning whether or not it should be supervised.

In Michigan, the trial judges also make custody, parenting time and child support decisions.  However, the ultimate decision doesn’t go to the judge unless the parents cannot agree on those decisions.  In divorce or custody cases, the parents have many options for resolving these issues, including mediation before the case, mediation during the case, and mediation with Friend of the Court.

If the issues cannot be resolved prior to trial, then the Judge must make those decisions, always focusing on what is in the best interests of the child.  This means that the Judge must hear testimony and review evidence involving 12 factors that can be found here: Best Interests of the Child Defined.

Ultimately it is better if the parents can agree on issues of custody and parenting time since the parents will have to co-parent for years to come, and must make decisions together about their children.  If, however, an agreement is impossible, the judge will make that decision—but it will be based upon what is best for the child, not what the parents want.

You can read more about the Mel Gibson custody issue as reported by the New York Times: In Family Court, a Reckoning for Gibson’s Career

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.

In Custody Hearings, the Judge Cannot Just Rely on Friend of the Court’s Recommendation

In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:

(1) The love, affection &other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection &guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(4) The length of time the child has lived in a stable, satisfactory environment &the desirability of maintaining continuity.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child and the parents.
(11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.

After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.

However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the Friend of the Court recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court's decision and sent the case back to the trial court for a new custody hearing.

In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Less Transition for Children not Proper Cause to Change Parenting Time

When going through a divorce in Michigan, it is extremely important to carefully agree upon a parenting time schedule with your children that will work for a long period to come. Some parents decide to share joint physical custody—meaning that both parents aim to spend as much time as they can with their children, usually resulting in half of the child’s time with one parent and half with the other.

What usually results in such an agreement is that the children rotate houses every week (one week with one parent and the next with the other parent), or the children spend some days in the week with one parent, and the other days in the week with the other parent. Obviously, the latter arrangement results in many transitions for the children, as they are rotating houses up to 3-4 times per week.

In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement. The children were with their father 4 nights in the 1st and 3rd weeks of the month, and 2 nights in the 2nd and 4th weeks of the month. During the summer months, the parents took full alternating weeks. The father in Stelman sought a parenting time change, asking the court to change the parenting time to alternating weeks throughout the entire year. Under his current parenting time plan, he spent 12 overnights with his children, and his proposed would increase it slightly to 14 overnights with his children. Thus, the amount of overnights with the children would remain consistent. What the father proposed is that alternating weeks throughout the entire year would be a better plan because it would reduce the amount of transitions for the children by about half.

Oakland County Circuit Court ruled that his reason for seeking the change (reducing transitions), did not meet the threshold required for seeking a modification of parenting time. The Court of Appeals agreed. In Michigan, in order to seek a modification of parenting time, you must provide the court with evidence that there has been a change in circumstances or there is proper cause for seeking the change. Both courts were very clear that just a new proposal that reduced transitions did not meet the required evidence of change in circumstances or proper cause. The father never showed “what had changed” to make the existing parenting time schedule in need of modification. Just seeking a new arrangement to reduce transition for the children is not enough for the court to change the parenting time schedule.

If you are going through a divorce with children, it cannot be emphasized enough that you have good legal counsel to help you decide issues of custody and parenting time. Your decision becomes final and unchangeable unless there has been a change in circumstances or proper cause—this is a difficult evidentiary burden to meet. The decisions made in your divorce have long-lasting effects on you and your children—and you should be assisted by an attorney who can educate and advise you so you understand the full ramifications of your decision.

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com. 

Michigan Supreme Court Hears Child Support Case

The Michigan Supreme Court will hear oral arguments this afternoon, Wednesday, October 6, 2010, on the case of In re Beck, opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 293138) FOR PUBLICATION.  The sole issue for the Michigan Supreme Court is whether a parent whose rights to his children have been involuntarily terminated pursuant to the Juvenile Code can be ordered to continue to pay child support.

In the Beck case, a father’s parental rights were terminated pursuant to the Juvenile Code in the Oakland County Circuit Court, meaning that they were terminated involuntarily due to abuse or neglect.  However, despite the fact that his rights were terminated, the trial court ruled that his child support obligation would continue.  The father appealed the trial court’s decision.

The Court of Appeals affirmed the trial court’s decision, and held that there was a difference between a parent’s rights and a parent’s responsibilities.  The Michigan Legislature permits a court to terminate a parent’s rights, but is silent regarding a parent’s responsibilities if rights are terminated.  The Court of Appeals ruled that children have a right to receive financial support from their parents, and this right cannot be bargained away by the parents.  Further, a parent’s responsibility or financial liability to the child has always been treated distinctly from a parent’s rights.  For example, a parent isn’t denied parenting time just because they are behind or delinquent on child support.

The Court of Appeals noted that they previously ruled in Evink v Evink, 214 Mich App 172 (1995), that a parent who voluntarily releases parental rights to the other parent is still required to pay child support.  The Court of Appeals also noted that the only situation where a parent’s child support obligation is extinguished is if the parental rights are voluntarily given up pursuant to an adoption, as the court held in Bradley v Fulgham, 200 Mich App 156 (1993).

Lastly, in Beck, the Court of Appeals reasoned that it was against public policy to extinguish a parent’s duty to pay child support when their rights have been involuntarily terminated.  This could result in parents refusing to report abuse or neglect because it would result in the removal of financial support.  It also punishes a child financially for the misdeeds of the parent.

It will be interesting to see how the Michigan Supreme Court will rule, considering that the Legislature is silent on this issue, and the Court of Appeals has ruled, in the law’s silence, that a child support obligation continues after an involuntary termination of parental rights.

If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Relocating With a Child After Divorce

In Michigan, a divorced parent must seek approval from the Court if they wish to move their child out of state. If both parents agree to the relocation, the Court generally grants it. If one parent objects to the relocation, the Court may grant the request if the parent seeking the relocation can prove by a preponderance of the evidence that the relocation is warranted after reviewing the following factors:

1) Will the change improve the quality of life for the child and parent
2) The degree to which each parent has complied with their parenting time schedule
3) The degree to which the court can modify parenting time to preserve & foster the relationship
4) The extent to which the opposing parent is motivated by financial reasons
5) Domestic violence, regardless of whether it involves the child

The Court of Appeals recently evaluated a relocation case in Davenport v Mosholder, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2010 (Docket No. 295852).

In Davenport v Mosholder, a relocation request was filed by the mother who wished to move from Michigan to Georgia. The testimony revealed that the child generally resided with his parents on alternating weeks. The trial court eventually concluded that the child had an established custodial environment with both parents, but that the proposed relocation would not alter that established custodial environment. Further, the trial court indicated that while the father would have less overnights after the move, the reduction was not significant and the child would still have daily access to his father, thus maintaining the established custodial environment.

The Court of Appeals, however, disagreed with this determination, indicating that the move to Georgia would clearly alter the established custodial environment. In an interesting analysis, the Court of Appeals relied on evidence that the father had almost daily contact with his child, coached his sports, served as a scout den leader, and generally was active in the child’s life on a daily basis, despite having the child only half of the year on an overnight basis. The Court of Appeals found that daily contact via webcam when the child relocated to Georgia was not an effective substitute for the clearly established custodial environment between father and son as it existed in Michigan.

The Court of Appeals recognized that an established custodial environment can exist with a parent even if that parent does not have the majority of the overnight parenting time. The Court acknowledged that active daily involvement can be the basis for an established custodial environment.


If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

The Costly Lesson of Full Disclosure to Friend of the Court

In Michigan, child support is modifiable upon change of circumstances, and in order to modify the amount of child support, you must file a motion/request with Friend of the Court. A referee in Friend of the Court then reviews each parent’s income, health care costs, child care costs, and parenting time and makes a recommendation based upon those facts. Once a recommendation is made, each parent has an opportunity to object to the recommendation, and if there is an objection filed, the matter goes to the Judge for a formal hearing.

So what happens if during the entire process one of the parents is less than forthcoming with their income information? What happens if one parent deliberately misstates their income?

The Court of Appeals recently discussed this exact situation in Keinz v Keinz, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 292781).

In Keinz v Keinz, a modification request was filed by the mother 3 years after the divorce was final. At the referee hearing, the father not only stated that his gross annual income was $41k, he produced a letter from his employer indicating the same thing. The referee made a recommendation, and the mother objected to that recommendation. Eventually a full evidentiary hearing was held by the Judge, at which time it was discovered that the father actually earned $81k annually, double the income he asserted at the referee hearing.

The father’s justification was that he was working overtime, but that due to his health, he didn’t expect to work any more overtime. However, it was discovered that at the time that he asserted that he would only earn $41k annually, he had already earned $40k and only half the year was over.

The mother asked the Court to make the father pay for her attorney fees stating that his position/defense was frivolous, which means that the father asserted a position that he knew was not true. While the trial court initially denied the mother’s request for attorney fees, the Court of Appeals determined that the father deliberately deceived the referee by offering evidence that he knew was not true. The Court of Appeals determined that the father’s position in the child support hearings was truly frivolous and because the mother ultimately prevailed with a higher child support amount (albeit after numerous court hearings), the father was responsible for paying the mother’s attorney fees.

The cost for deliberately deceiving Friend of the Court: paying for two attorneys.




If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.
 

Re-Married... With Children

You’ve been divorced for a while now, and all of a sudden your ex remarries to someone you feel is a bad influence on the children. Or, you’ve just remarried yourself and can provide a more stable household. That should be enough to get you back into court to have the judge re-evaluate custody and parenting time, right?

Nope.

In Michigan, before the Court can consider changes in parenting time or custody, the person requesting the change must demonstrate “proper cause” or a “change in circumstances.” While instinctively one may think that a remarriage of a former spouse is a change in circumstances, the Michigan Court of Appeals decided differently in Allen v Belonga, unpublished opinion per curiam of the Court of Appeals, issued July 20, 2010 (Docket No. 295753).

Without reviewing the facts of that case in particular, what is important to note is that the Michigan Court of Appeals indicated that a parent’s remarriage is generally a “normal life change” and does not rise to the level of “change in circumstances” required under Michigan law. The Michigan Court of Apeals indicated that the evidence must show that a “material change” has occurred and that this “material change” has or will have an effect on the child.

Changes in custody and parenting time are difficult to request and the courts enforce the evidentiary standards for each particular change requested. It is extremely important, throughout your divorce, to understand that your agreement as to custody and parenting time will be binding and cannot be changed by the court at just your request. It is important to have good legal counsel through this process so you understand the long-term effects of your decisions and agreements.



If you are interested in learning more, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.