Gordon & Shaw Family Law Blog

Inability to Get Along: Change of Custody?

2012-01-09T12:38:00.001-08:00

Recently, the Court of Appeals found that parents’ inability to get along and agree with respect to their children was sufficient grounds to review a custody order. Constant disagreements between parents that negatively impact children are generally not taken lightly by the court. As we have previously posted, it is often onerous for a parent to request a modification of custody once it has been established by a court order. While requesting a change of custody is still very difficult, it is important to document all issues regarding custody or parenting time as they occur. We highly recommend using e-mail exchanges to provide proof to the court. If you feel that you have some facts that may justify a change of custody, it is advisable to contact an attorney.

Warning Signs

2011-11-09T07:57:00.000-08:00

We have spoken to more than one husband that was surprised that their wife considering divorce. Some of them should not have been because there were signs. A sudden interest in self improvement is a sign that is common. CBS had a decent blog about it recently. http://gma.yahoo.com/blogs/abc-blogs/beware-partner-sudden-interest-fitness-220400464.html. So, if you are considering divorce and you don't want your spouse to know, be careful about the changes you are making because your wife may notice. And, if you see your spouse making changes, you may want to pay attention.

Marriage Warning Labels

2011-09-29T10:20:00.000-07:00

There is an article in the Huffington Post that proposes a marriage warning label. Here is the post: http://www.huffingtonpost.com/william-quigley/a-modest-proposal-why-can_b_982566.html. While this article does not help most of our clients, it is a worthwhile idea.

Misplaced criticism of proposed law

2011-07-13T11:30:00.000-07:00

A recent article in the Free Press, Brian Dickerson: A new Michigan divorce statute, tailored for one?, criticizes a bill introduced in the House of Representatives recently for having to narrow a focus, cutting out divorce lawyer's from comment, and being unfair. See it at http://www.freep.com/article/20110623/COL04/106230514/Brian-Dickerson-new-Michigan-divorce-statute-tailored-one-?odyssey=tab|topnews|text|FRONTPAGE. The criticism that the legislation was "tailored" for one person is apparently pure speculation because no evidence of that accusation is provided in the piece. In fact the proposed legislation is quite comprehensive. See it at http://www.legislature.mi.gov/documents/2011-2012/billintroduced/House/pdf/2011-HIB-4672.pdf. It finally gives actual definitions for marital and nonmarital property and establishes rules for division of that property. Currently, lawyers and litigants must look to a variety of cases to glean that information. Further, that law was largely created by the judiciary and not by the legislature. There is value in having a comprehensive law drafted by the legislature and for more than just one person. While the legislation does change current case law, that is the legislature's prerogative and job. This piece indicates that one of the changes would be unfair to some litigants. Those litigants are the spouses of people with premarital assets that see there assets grow during the marriage. But that may not be true. As a bit of background, a number of years ago the court of appeals decided that a stay at home mother contributed to the maintenance of a nonmarital asset which changed the character of the asset to marital. She then got 50%. Under the proposed legislation, it would not necessarily become marital in that situation and if it didn't, mother would be compensated for her contribution. It does not say what mother would get for her contribution. At this point it could be more, less than or equal to 50%. Rather, it becomes a question to litigate. To be clear, in the example in the piece the business increased in value by 49 million. That mother could ask for nothing and could ask for the 49 million, or anything in between. What value did she add? How sure can anyone be that it was 24.5 million? It is apparent that the commentators in the piece don't think mother's work was really worth that and they cannot prove it and that is why they have come out with such furor. Of course this legislation is not perfect. We would like the legislature to tell us how, when a Judge divides a $50 million dollar company in half, the working spouse is supposed to pay for it without killing the business. Businesses aren't bank accounts but you wouldn't know that by just talking to the non-business owning spouse. For that reason, the legislature should hold hearings. However, it is good that the legislature is taking on this kind of task and it should be applauded no matter the initial motive.

Mother Entitlement

2011-05-16T08:35:00.000-07:00

Mother entitlement is the phenomenen where a mother feels that she is the most important person in their child's life even when she is not or should not be. Despite the fact that mother entitlement is rampant in divorce cases it does not get much press. It never gets negative press. Rather, it is ussually applauded in the press.

A case in point is the recent the North Carolina case where a mother with stage 4 cancer "lost" her kids to their father. The court sited concerns about the uncertainty of mother's health in making its decision. This has been responded to with furious outcry. See New York Daily News, http://www.nydailynews.com/news/national/2011/05/12/2011-05-12_alaina_giordano_breast_cancer_patient_loses_custody_of_children_because_of_illne.html, NBC (http://today.msnbc.msn.com/id/26184891/vp/42986817#42986817), Huffington Post (http://www.huffingtonpost.com/emily-cousins/alaina-giordano_b_860844.html), Daily Mail http://www.dailymail.co.uk/news/article-1385143/Alaina-Giordano-loses-custody-children-breast-cancer.html?ito=feeds-newsxml). That the mom has cancer is unfair to everyone. Cancer is tragic. But why the outcry that the children will now be raised with dad? Dad's parenting has not been critized in this story. Dad is presumably a great dad. Maybe he is only an okay dad or perhaps he is a bad dad. Naturally that is not the question. The question is why is Mother being descriminated against.

Mother entitlement is a problem because it can be this strong and stronger. We regularly see cases where women in all manner of unfortunate circumstances cannot see that their children may be better off with their father. Many in the court system, society and the press are guilty of the same thing. Because our court system only gives lip service to the best interest factors and giving both parents a fair shot at custody, mother entitlement is regulary reinforced and rewarded. Stories like the one above only reinforce the attitude that any mother no matter the circumstances is better than the father at raising children.

Every parent in a custody case must ask themselves what is in their child's best interest and carefully consider how much they are conflicted by their own understandable but not necessarily relevant desire to be with their children. Everyone else looking at these situations must ask themselves what is in the child's best interest and leave antiquated notions about care giving out of it. Until everyone is more objective about what is best for the children, children will continue getting cheated out having real access to both parents.

Joint Custody

2011-03-04T12:40:00.000-08:00

Michigan law does not adequately account for the fact that in many families both parents are a significant care providers. Under its current rules, Judges with or without the Friend of the Court have broad discretion to make temporary custody decisions without any investigation or evidentiary hearing. Frequently both parents contend that they are principal care givers. Because Judges are not issued crystal balls they make decisions with very little information that are influenced by their own bias. All to often this means that dad is demoted to a second class parent and children loose significant access to an important care giver. While dad may have the opportunity to have a trial on custody months later, he faces a significant legal bill and a mother with a distinct advantage because she has had primary custody while waiting for custody, if he wants to try.

Michigan law will not properly account for the fact that many children rely on both mom and dad for care support until judges are forced to preserve these relationships until a full investigation and or evidentiary hearing has been had. We fight this fight every day. However, more could be done by our law makers. Past Michigan Legislatures have considered passing joint custody laws. The most recent can be found here http://www.legislature.mi.gov/documents/2009-2010/billintroduced/House/htm/2009-HIB-5114.htm. While we do not endorse everything in this particular bill, it would go a long way to evening the playing field. We encourage the current legislature to consider such legislation in the near future and anyone interested in equality to contact their state legislators.

Custody Support Groups

2011-02-16T12:43:00.000-08:00

Divorce can be a difficult time especially when children are involved. There are many references out there trying to help. An interesting one came across my desk today. Up to Parents, www.uptoparents.org, is a site that focuses on trying to get parents to move toward cooperating when making parenting time decisions. While we do not endorse all of their views the site is worth checking out.

The Current State of Marriage and Family in the United States:

2010-12-02T11:32:00.001-08:00

Times have certainly changed over the last few decades. A study performed by the Pew Research Center, in concert with Time Magazine, outlines the drastic changes in the way Americans view marriage and family. The Time Magazine article “Marriage: What’s It Good For?” outlines the findings derived from a survey of 2,691 adults around the United States in 2008. The following are some of the interesting statistics:

40% of Americans think that marriage is obsolete (versus 28% in 1978). However, more than 75% of the respondents felt that marriage was best for raising children.
In 1960, 72% of adults were married. In 2008, only 52% were married.
College graduates are more likely to marry (64%) than individuals who do not have higher education (48%).
Compared to fifty years ago, Americans are more likely to marry someone who has similar socioeconomic and educational achievements.
College graduates are less likely to divorce than individuals who do not have higher education.
In 1960, 87% of children were living with married parents. In 2008, only 64% of children are living with married parents.
A child living with cohabitating, unmarried parents in Sweden is less likely to see their parents split up than a child living with married parents in the United States.
41% of children were born to unmarried mothers in 2008 (please refer to the blog concerning Affidavits of Parentage dated November 30, 2010). This is eight times more than fifty years ago.
Only 6% of children have parents who are cohabitating outside of marriage.
21% of children whose parents are separated/divorced will be exposed to two live-in partners in their mothers’ homes by the time they are 15 years old. An additional 8% will see three or more live-in partners during the same time period.

For more information please view the following link: http://pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-new-families/

Affidavits of Parentage: What Every Unmarried Father in Michigan Needs to Know

2010-11-30T07:22:00.000-08:00

Unmarried fathers are presented with unique legal challenges. They are generally presented with an Affidavit of Parentage at the hospital after a child is born and told to sign it without any explanation. Fathers regularly sign the Affidavit without understanding it or how signing it affects their rights. As a result, many unmarried fathers leave the hospital with little or no understanding of what their rights are as fathers and what they need to do to assert those rights. Similarly, fathers not present at the birth of a child often do not know what they need to do to protect their rights.

The Affidavit of Parentage is a form signed by both parents that acknowledges that the parents are the natural parents of the child. By signing the Affidavit, the parents affirm their parentage of the child under penalty of perjury. Therefore, a father who is not 100% certain that he is the natural father of the child should not sign the form without further investigation or seeking legal advice.

When presented with an Affidavit of Parentage, a father should first read the document very carefully. See Michigan’s Affidavit of Parentage at:

http://www.michigan.gov/documents/Parentage_10872_7.pdf .

Any father who does not understand the Affidavit or is uncomfortable with anything in the Affidavit should seek legal advice before signing.

Important Rights are Waived By Signing an Affidavit of Parentage.

By signing an Affidavit of Parentage, a father waives the following rights:

· The right to blood or genetic tests to determine if he is the biological father.

· Any right to a court appointed attorney to represent him in a court to determine if he is the biological father.

· The right to a trial to determine if he is the biological father.

These are very important rights, and a father must understand these rights completely and be comfortable waving them before he signs the Affidavit.

Benefits of Signing the Affidavit of Parentage.

There are definite benefits to signing the Affidavit of parentage. If a father signs the document, he establishes himself as the child’s father. He can put his name on the child’s birth certificate and assert his custody and parenting time rights.

An Affidavit of Parentage Can Be Set Aside Under Certain Circumstances.

If a father mistakenly signs an Affidavit of Parentage or later finds out that he is not the father of the child, he may be able revoke his acknowledgement of parentage. In order to do so, he must file an action with the appropriate Court and request the Court revoke the acknowledgement. However, if an individual has held himself out as and acted as the child’s father for a substantial period of time, he might not be successful in revoking the acknowledgement.

The Affidavit of Parentage and Custody, Parenting Time and Child Support

The Affidavit of Parentage gives the mother initial custody of the child and does not grant the father parenting time with the child. In order for the father to assert his rights for custody and parenting time he must file a custody case with the appropriate Court. The court order entered with the Court is generally referred to as an Order of Filiation, which is an enforceable court order concerning custody, parenting time and child support. A father must have this order, or its equivalent, to enforce his custody and parenting time rights.

A father does not eliminate his child support obligation by not signing an Affidavit of Parentage. A father will not be required to pay support if he does not acknowledge that he is the father of the child. However, a child support case can be initiated by the mother or the State of Michigan. A mother may initiate her own court case to establish paternity and request a child support order. The State of Michigan will initiate its own court case to establish paternity and enter a child support order if the mother or child are receiving any assistance from the state (cash assistance, food assistance, Medicaid, etc.). A father must understand that the child support order could be retroactive all the way back to the birth of the child leaving the father with a substantial child support arrearage.

The Best Way to Overcome Legal Obstacles is to be Proactive.

Every father needs to be proactive and have a plan in place to assert his rights as a father before the child is even born. By seeking legal guidance, understanding his rights and having a plan in place, an unmarried father can overcome his legal challenges and focus on enjoying fatherhood.

There are many other things an unmarried father needs to know. Contact us or another qualified attorney for more information and assistance.

PPOs are sometimes necessary

2010-11-10T07:02:00.000-08:00

We don't love Personal Protection Orders (PPOs) at Gordon & Shaw because they are sometimes used as a sword to separate a man from his children or house without any hearing based upon one-sided false or embellished allegations. However, they have their place. Take for example the case of Samuel Cordaryl Clark, age 24. Mr. Clark died when his ex-girlfriend chased his car down 28th Street at 100 miles per hour. At this point we don't know if his ex-girlfriend had done anything like this before but it is obvious that he did not want to be confronted by her. Had he had a PPO and drove to the police station, his ex-girl friend would have gone to jail and he may have lived. Some men need a PPO but are skeptical that they will not be taken seriously by the court or believe that they can take care of themselves. Men are right to be skeptical of the court but that should not stop them. We have had clients obtain PPOs. Preparation is key. What worries us more is the men that believe they can take care of themselves, because they tend to get themselves in trouble. Believe me, there are men in Grand Rapids that have a domestic abuse convictions on their record even though they were only acting in self defense. If a man feels threatened he must get the court’s help. For more on Mr. Clark see http://www.mlive.com/news/grand-rapids/index.ssf/2010/10/woman_who_alledgedly_chased_bo.html#incart_mrt

FACEBOOK and other networking sites

2010-10-19T12:22:00.000-07:00

It is usually expensive and difficult to show how some Moms are really. As we all know there are some terrible ones that can put themselves together just long enough to fool the court. Facebook, MySpace, Twitter, etc. sometimes give us the evidence we need to show she is a fraud. We aren't the only ones that have figured this out. There are many articles out there that explore this topic including Facebook and Divorce: Airing the Dirty Laundry - TIME and Facebook is divorce lawyers' new best friend - Technology & science - Tech and gadgets - msnbc.com. Any man facing divorce, custody/parenting time, or support issues would be wise to review the evidence they have put out in networking sites and go looking for evidence she has put out there.

CHILD SUPPORT MODIFICATION AND CONTRACTS:

2010-09-29T12:34:00.001-07:00

It is fairly common knowledge that child support is modifiable based on a change of circumstances, such as an increase or decrease in income. What most people do not know is that there are some traps. The following are some that fathers should be aware of if they are negotiating their own settlements.

1) If you agree to pay more child support than required by the Michigan Child Support Formula, you may not be able to request a modification. Pursuant to the Michigan Court of Appeals, in Holmes v Holmes, 281 Mich App 575, 760 NW2d 300 (2008), a payer of support is bound by an agreement to pay more child support absent any specific language indicating the overpayment of support is modifiable. In the Holmes case, the payer of support agreed to pay a percentage of his gross bonus on top of his ordinary child support payment. It is fairly common for individuals to bargain for this type of provision in child support orders if bonus income is unreliable. During settlement negotiations, the parties came up with the percentage based on a ratio of the payer’s gross monthly income and his monthly child support obligation. When the payer’s monthly income decreased, he sought a decrease in the percentage of the bonus income he was paying. The court denied his request on the basis that the provision in the Judgment discussing this bonus payment did not clearly indicate that the percentage was modifiable. The court applied contract principles in the analysis. The court found that there was no ambiguity, so it could not read into the intent of the parties at the time the agreement was made.

2) An agreement to pay less support is unenforceable absent a provision indicating that a certain amount of property/money was provided to the payee in lieu of making child support payments. 2008 MCSF 4.03. In order to be enforceable, the agreement must state the appropriate deviation language found in MCL 552.605 and the exact dollar amount of property/money payee is receiving in exchange. After the child support that should have been paid equals the amount of property awarded to the payee under the agreement, child support is then awarded pursuant to the Michigan Child Support Formula.

3) You cannot make an agreement stating if child support is awarded spousal support will be awarded in the same amount. This was deemed a violation of the public policy that parents cannot waive their children’s right to support. Laffin v Laffin, 280 Mich App 513, 760 NW2d (2008). It was found that the provision was also inconsistent with the laws regarding spousal support.

4) A court cannot order a parent to pay post-majority support for a child. However, an agreement to pay post-majority support, such as college expenses is enforceable. Wagner v Wagner, 105 Mich App 388, 306 NW2d 523 (1981). Thus, if you lose your job or income, you may still be obligated to pay for these expenses. It would behoove you to make sure any agreement regarding post-majority support is deemed modifiable child support and not a property settlement which is not modifiable.

Even with all of this information a father facing a child support issue should contact us or another qualified attorney to get assistance.

Bad Divorce Attorney Uses Tazer

2010-09-01T11:22:00.000-07:00

A recent Wall Street Journal article took on the issue of divorce in trying economic times. The article does a pretty good job reciting many of the common frustrations. What caught my eye though is the fact that one St. Louis divorce attorney admits to having a Taser Gun in her office and threatening her clients with it. See the article at http://online.wsj.com/article/SB10001424052748704216804575423321156719004.html. Here is some free advice, if your attorney has a Taser because of his or her clients, find a new lawyer. What you really want is an attorney that sees opportunities in a bad economy. While there isn't always a silver lining, it is still smart to look for one.

Change of Domicile

2010-08-18T12:13:00.000-07:00

Change of Domicile

As anyone that follows the news knows, people are leaving Michigan in droves. While I understand that work and family obligations sometimes require a person to move, I don’t understand why anyone would leave Michigan, particularly West Michigan, if they had any opportunity to stay. Michigan has wonderful people, a beautiful landscape and many things to see and do. In any event, it happens, people move. Moving is a tough and expensive process. When a dad or a mom only has joint legal custody and the move is out of state or more than 100 miles there is also the expense of getting court approval for the move.

The law concerning moving and officially referred to as change of domicile can be found in the Michigan Court Rules, Michigan’s statute, and a decent amount of case law. What you will find in most cases is that the court is inclined to allow a move over the objection of the other parent if it appears that the move is good for the child. Courts can consider anything that will affect the child including standard of living the child will enjoy, the educational and extra-curricular opportunities available to the child, the family relationships available to the child and any other.

Dads should know the following:

1. Mom only has to get court permission to move the child out of state or beyond 100 miles when the dad has joint legal custody. When the dad does not that dad may still be able to stop the move but the burden is on dad to bring their case to the court. SPECIAL NOTE TO DADS WHO’S CUSTODY ORDERS DERIVED FROM CASES STARTED BY PROSECUTORS. It would be wise to consult your custody order because many dads whose custody orders were derived from cases brought by the prosecutor do not provide for joint legal custody.
2. Your relationship with the child is very important to your cases. The court is more willing to allow a move when dad is not very involved with the child. Regularly exercising parenting time, giving Christmas and Birthday presents, participating in school activities and knowing the child’s friends all help significantly.
3. If you are the parent that wants to move, plan ahead as much as possible. You will want to gather information about your new area and present a strong case right off the bat. Your child’s mother will be more inclined to consent to the move and the court will be more inclined to approve the move over her objection if it is well thought out and presented.
4. If mom moved the child without getting proper approval, you may have a great case to change custody. As anyone that has been show caused for not paying support, the court is not fond of people that fail to follow orders. Bring your case quickly though, if you wait long enough the court will not be as eager to help you.
5. Even if mom does not leave without the proper approval, her request for a change of domicile is a change of circumstances and dad has the opportunity to ask for a change of custody.

Every situation is different so consult us if you are facing a changing of domicile situation.

Recent Case, Koy, Regarding Defaults

2010-07-19T07:37:00.000-07:00

The Michigan Court of Appeals’ recent opinion in Koy v. Koy regarding defaults brings to mind two questions we are frequently asked by clients and prospective clients. Those questions are “what if I don’t cooperate” and “can I do this divorce on my own”. The answer to both is “you will probably regret it” because of the courts power to default an unresponsive party. In Koy the court defaulted Mr. Koy because he did not appear for a settlement conference. After defaulting Mr. Koy the court entered the Judgment proposed by Mrs. Koy without any hearing. That judgment provided for non-modifiable spousal support. Any first year associate knows that a judge cannot award non-modifiable spousal support with out approval by both parties. The judge entered the award because he did not read or care about the terms of the Judgment. This is typical; Judges do not generally review Judgments to determine if they are fair. If someone wants the opportunity to have a chance of having a fair Judgment of divorce without going to the Court of Appeals they should cooperate with the court and follow the procedural rules.

Introduction

2010-07-13T12:23:00.000-07:00

Gordon & Shaw is a West Michigan Law Firm dedicated to fighting for men in divorce, custody and support cases. Part of our mission is to educate our clients on the issues they are facing so that they make reasoned decisions. Our mission is experienced most by our clients on a day to day basis but is also evident in our content rich web site, gordonandshaw.com which has a wealth of information about divorce and custody basics. To further our mission we are starting this blog to comment on topics that are in the news, recent case law or that are of general interest to men with divorce, custody or support issues. We hope that you find it helpful. If you would like us to address something in particular, please don’t hesitate to ask.

Legal Note: The information in this blog is meant as general information and should not be relied on without further consultation with Gordon & Shaw or another qualified attorney.