What Happens to Frozen Embryos After A Divorce?

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

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Should Your Divorce Go To Trial

On Friday, I was sure that I was going to spend the entire day in a divorce trial; my first in a quarter century of practice. Didn't happen.

Why? Because trial in divorce rarely makes sense. This case, in Genesee County, had it all: a GAL for the minor children; a joint bankruptcy in the middle of the proceedings; two [failed] mediation sessions; motions from each side, jousting for the entry of temporary support and parenting orders.

The case was positioned for trial because both sides held onto rigid positions on many of the issues important in any divorce proceeding: custody, parenting time, child support, alimony and debt apportionment. My law clerk, a third year student at Wayne State, prepared an excellent trial brief; she had compiled a trial notebook, and we were prepared and ready to go.

As the case was the oldest on Judge Kay Behm's docket [18-months], I knew it was going to resolve one way or another.

The case did resolve, after 8-hours in the courtroom, because each of the parents made common-sense, strategic compromises. In the end, the parents each looked past their own personal wounds, and their self-centered agendas, and took into account the best interests of their minor children.

Don't get me wrong, I would rather conduct a trial than spend the entire day as I did Friday, painstakingly going over, discussing, negotiating, and resolving every aspect of a failed marriage and the flotsam that goes along with it. But as a divorce lawyer, I keep the best interests of the client in mind. Trial almost never makes sense.

So it may be that when I finally retire, I will have never conducted a divorce trial. Actually, that is a client-service goal of mine.

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Narcissus Gets a Divorce

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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Child Obesity as a Custody Factor in Family Court

Yesterday, the NBC Today Show featured a segment on family court cases where a parent was mounting a child custody challenge based on obesity.  This past year, I recall hearing much about the subject of childhood obesity, perhaps due to the First Lady's "Let's Move" campaign.

According to a recent report by the Center for Disease Control, childhood obesity affects 17% of our nation's youth; a figure triple what it was just a generation ago.  Now that this is a recognized condition putting on the cloak of yet another national crisis, should family court judges take childhood obesity into account in the custody calculus?

The father featured in the Today Show segment was shown cooking a vegetarian meal for his two preteen children.  He succeeded in his custody ploy to the extent the family court judge modified  custody such that the children stayed at dad's house during the weeks of the school year.

In Michigan, the Child Custody Act sets forth several factors which a family court judge must consider when deciding a custody dispute.  One of these factors is the capacity of a parent to provide food, clothing, medical care or other remedial care.  Arguably, this factor could include how a parent manages a child's diet; particularly if that child is at risk for obesity or is, in fact, obese.


The relative physical health of the parents and the reasonable preference of the child (particularly if older than age 12) could also come into play in a childhood obesity custody case.  A parent's unhealthy lifestyle may factor into the family court judge's calculus.


In come cases, it may strike the judge as unfair to basically penalize a parent for the child's eating habits.  This is a particularly close case where the obesity may be genetic and thus, hereditary.  Also, how far does the family court go?  


The optimal situation, of course, is where both parties co-parent with the child's best interests in mind.  Diet, exercise and lifestyle, however, often do not mesh between divorced parents.


As our nation continues it's struggle against the bulge, the cases of the type featured on the Today Show may pop up with more regularity in the county family courts across the state.  We all want the best for your young children.  Certainly, a good diet is an important component to a good healthy upbringing.

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High Income Child Support

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs.  Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners.  Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support.  Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth.  This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support.  Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households.  These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"?  Some of life's best lessons are learned with less, not more.

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New Apps Flood Lawyers With Information

Attorneys, perhaps more than any other professionals, are awash with information; information about their cases, information about changing laws, a constantly shifting schedule.  The pace with which the information now flows can only be described as instantaneous.

The manner in which a lawyer collects, stores and utilizes this information is a good indicator of that lawyer's professional skill.  In this era of a 24/7 stream of digitized information, mobile devices are beginning to offer specialized apps for lawyers.

Here are some examples:

SCOTUS App.  The Oyez Project has just launched an app that will download U.S. Supreme Court activity to your mobile device.  This will include digitally recorded oral arguments, text of the High Court's decisions, as  well as media coverage and analysis.  Pretty cool, to be sure; but is this information-overkill?  Why not just wait until you get back to your computer?

Mobile Transcript.  This app allows you to download, manipulate, summarize, and transmit deposition transcripts right from your mobile phone.  Great for when litigation data must be processed fast.  Try using this while on vacation, however, and you will likely need to hire a divorce attorney.

Family Law Apps.  Speaking of divorce, there are plenty of divorce-related apps in both the Droid and iPhone markets.  For those residents of Gotham, there is an app to calculate your child support, there are apps to save your marriage; apps to stop your divorce; apps to help you win custody and, or course, apps for various forward-leaning divorce attorneys and law firms.  Exhausting, to be sure.


State Bar App.  Useless here in Michigan, but perhaps a harbinger, the Maryland State Bar Association has produced an  app that downloads their rules of evidence, rules of professional conduct, and bits of professional philosophy right to your handheld device.  Can the SBM be far behind?


Law Blog Apps.  In a case of life imitating art, or perhaps this is best described as lawyers taking themselves too seriously, the blawg "FutureLawyer" announced on Tuesday that there is an app available to download their tech-related posts directly to your mobile device.  As if you just could not live without their updates; now you can digest their posts about the latest tech developments while you wait for your case to be called; could have used this App today.

In 18-months, most of these current apps will be considered obsolete.  The thing about high-tech is that products are constantly being improved.

Soon, you will be able to go to your doctor and just get a "chip" implanted into your skull; that way you'll have all the world's latest data right under your hood.  

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Post-Divorce Nesting

Brown Bird Design for Time

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting".  This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".

The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting.  It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement.  Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not.  Nesting would seem to be a viable option.  Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement.  Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn.  In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work.  It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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Anti-Shariah Law (Part II)

State Rep. Rashida Tlaib (D-Detroit)

The Law Blogger recently posted on the Anti-Shariah movement earlier this month.  Now, the Michigan legislature is getting in on the act along with the American Bar Association.

HB 4769, sponsored by Rep. Dave Agema of Grandville and numerous other legislators, seeks to restrict contracts and agreements calling for the application of foreign laws whenever such application would conflict with the rights set forth in the U. S. and Michigan Constitutions.  The bill was introduced last week and was assigned to the Judiciary Committee of the Michigan House of Representatives.

Judges presiding over disputes involving such contracts and agreements would be required to amend the application of the foreign law to protect the litigant's constitutional rights.  If an amended application of the choice of law provision is not feasible, then the foreign law provision is deemed null and void.

Under such a provision, you could kiss Shariah Law goodbye; at least if either party to an agreement calling for the application of the Islamic code wanted to escape the burden of the contract.  This scenario would come up most often in the family law context where prenuptial agreements between religiously devout Muslims frequently call for the application of Shariah Law in the divorce judgment.  If Agema's bill passes, the family court judge could not honor the prenuptial agreement.

This possibility has Michigan's Arabic community speaking out.  Michigan's only Muslim legislator, Rep. Rashida Tlaib (D. Detroit), called a press conference to denounce Agema's bill, stating that her constituents found it "very very offensive" to the extent the bill would cast suspicion on Muslims.

Transactional attorneys that negotiate contracts with international choice of forum clauses are concerned these provisions would be subject to litigation.  Until now, such contract clauses routinely have been  enforced by Michigan judges.

In the last few years, anti-foreign law bills have sprung up in 22 state legislatures but only Arizona managed to pass their bill into law in April.  In the 2010 elections, Oklahoma voters approved an anti-foreign law ballot measure, but the proposal was short-lived having been invalidated in federal court on First Amendment grounds.

The American Bar Association passed resolutions earlier this month denouncing any federal or state laws that impose blanket prohibitions against the use of foreign laws or religious codes.

In our free society where the First Amendment reigns supreme, just who's law is it anyway?  Go figure.

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When Your Children Live with a Murderer Endorsed by the Family Court

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA.  The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past.  His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home.  This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment.  She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together.  He married Trisha Conlon, with whom he had two sons.  Sadly yet predictably, the couple divorced in 2004.  Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon.  The brothers reunite during holidays and vacations.  Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements.  The distance between the two parents provided the necessary cover.  Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests.  She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker".  On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

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Ex-Spouse Takes Out Divorce Angst on his Blog

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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The Anti-Shariah Movement

There is a growing movement afoot in the United States and Western Europe to arrest the perceived expansion of Islamic Law; also known as Shariah Law.  As the Anti-Shariah movement gains momentum here in the US, it is bumping up against the "free speech" clause of our First Amendment.

Sharia, the Islamic code that guides a Muslim's beliefs and conduct, is increasingly viewed by some legislators as a legal system that seeks world domination.  This fear has been attached to Islam for centuries.

The most vocal leader of the contemporary Anti-Shariah movement, David Yerushelmi, was profiled on the front page of last Sunday's NYT.  An attorney in New York and a Hasidic Jew, Mr. Yerushelmi has aligned himself with a phalanx of conservative think tanks while making a national mark as an expert on Shariah.  His recent accomplishments include drafting model Anti-Shariah legislation and filing lawsuits against the government that cite Shariah as, "one of the greatest threats to American freedom since the cold war," according to the NYT.

His warning is being echoed on the floor of statehouses throughout the country.  The actual extent of this perceived threat is highly debatable.

Should U.S. Courts ever defer to religious tribunals?  It happens more than you may realize. 

For example, the United States Court of Appeals for the Fifth Circuit in New Orleans upheld an arbitration award handed down by the Institute for Christian Conciliation.  Also, state courts have long upheld decisions made in Jewish courts known as a bet din.  Even Islamic courts, particularly in the area of family law, receive some "faith and credit" in state courts (if not full faith and credit).

 Particularly in the area of family law, there is an academic perception that religious women are often pressured by spouse and family into arbitrating in religious tribunals.  A problem arises when these tribunals then disregard principles of basic equity, fairness and even constitutional protections.

Recent state appellate decisions, one from New Jersey and one from Maryland, provide a fascinating insight into the issue of Shariah Law now confronting state court judges on an frequent basis.

Some state legislatures are drafting bills that would prohibit state court judges, particularly family court judges, from any consideration of the Shariah; all litigants would be bound by applicable state laws.

Perhaps this would be best.  We are, after all, in America, are we not?

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Proposed Divorce Legislation Distinguishes Marital From Separate Property

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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Parental Divorce Reduction Act is Misguided

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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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

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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Fathers See Gains in County Family Courts

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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The Skelton Divorce; An "Only in America" Moment

John and Tanya Skelton
in Lenawee County Circuit Court

I remember having a bad feeling about this story as it broke over the news during the Thanksgiving weekend last year.  Three young boys missing; clueless father.

Fast forward seven months and now we have the Skelton divorce in the Lenawee County Family Court making headlines.

In those intervening months, the three Skelton brothers have not surfaced.  For his part, their father simply states that he gave them to "an [unnamed] organization".

He stuck to this story, forcing his wife into a divorce trial where he represented himself in the proceedings before family court Judge Margaret Noe.  Accordingly, Judge Noe awarded custody, such as it is under the circumstances, to thier mother, Tanya Skelton.

As each month passes without any trace of the boys, the case grows ever colder.  The Lenawee County prosecutor has charged John Skelton with parental kidnapping; a capital offense with a potential life sentence. 

Regardless whether this case highlights the depth and horrifying scope of mental illness or, perhaps more ominously, it is a barometer of our post-modern culture, there will be no happy ending to this carnival side-show.

Only in America does a depraved father, who [at best] gave his three sons away to unknown individuals, seize headlines by insisting on a divorce trial where he represents himself; for the headlines, no doubt.  Alas, even his suicide attempt was botched.

Stay tuned, as our next debacle can only be moments away.

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Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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High Court Rules Religious Mom Cannot Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progressively integrate into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church, and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

Custody issues are almost always best-decided by parents outside the courthouse.  Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother.  The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs.  Father, on the other hand, petitioned the family court for an order that his daughter attend public school.  The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts.  The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents.  Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style.   His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional.  Stay tuned per usual as we await the outcome of the case and report back to you.

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Adultery in the Marital Bed

Please; Not in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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