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In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement.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.
 

Jail for Dad of 23 kids: over $500,000 owed in child support

A recent Detroit Free Press article and ABC News article discussed the case of a Western Michigan dad of 23 kids who was sentenced to jail for owing over $500,000 in child support.

First, this case is obviously unique, as he has fathered over 20 children. It is also unique because of the excessive amount of overdue child support. However, prison sentences are not as uncommon as you may think.

In Michigan, child support obligations are enforced by not only the courts, but also the local prosecutors and even the attorney general’s office. For non-payment of child support, the Friend of the Court can garnish your tax refunds, suspend your drivers license, file a lien against your property, report the debt to credit agencies, garnish a private pension or retirement, and issue a bench warrant for your arrest. Additionally, in cases where the amount of support owing is excessive, the Friend of the Court can refer the case to the local prosecutor for felony charges. Felony non-support cases can result in jail sentences, as evidenced by the results of the case involving the deadbeat dad with 23 kids.

What people don’t always realize is that child support is modifiable in Michigan. The Friend of the Court will conduct an automatic review of child support every 36 months. However, if there is a substantial change in income, a parent can file a request for modification and have it reviewed, even if it hasn’t been 36 months.

The lesson is clear—if there is a substantial change in income, it is important to request modification of child support. If the person paying child support becomes delinquent, the penalties can be excessive and extreme, and, in some cases, avoidable.

You can read the Detroit Free Press article here: Man linked to 23 kids gets prison in child support case

You can read the ABC News article here: Ultra Deadbeat Dad gets 23 Months in Jail


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.
 

What is Divorce Mediation?

The divorce trial of Dodgers’ owner Frank McCourt & his wife Jamie has taken a brief pause so that the couple and their attorneys can go through Mediation today in order to try to resolve and settle their divorce.

What exactly is Mediation?

Mediation in divorce cases is a private session between the couple, their lawyers, and a neutral Mediator, usually a lawyer who has been trained in Mediation, where they freely and openly discuss settlement of all or some of the issues in the divorce. In Michigan, everything that happens in Mediation is confidential, and offers and counter-offers exchanged in Mediation cannot be used in the Divorce trial or further proceedings. The Mediator’s role is to encourage the couple to work out their differences and come to a mutual resolution of all issues. If an agreement is reached, it is reduced to a final writing, a Divorce Judgment, and entered by the Court, thus ending the divorce.

Many divorce cases resolve in Mediation, and it is by far a less expensive alternative than a divorce trial. However, even in the middle of trial, like the McCourt’s trial, Mediation is also a tool to try to resolve issues that remain outstanding and disputed.

You can read the LA Times article here: Frank McCourt attorney's admission sets the stage for a possible settlement


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.
 
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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.