Child Custody Cannot Be Based on Sexual Identity or Preference

Gone are the days when a parent can be punished or marginalized because of his/her sexual identity or preference. In Michigan, the only factors to be considered are those set forth in the state's best interest test:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home, or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

(k) Any other factor considered by the court to be relevant to a particular child
custody dispute. MCL 722.23; Bowers v Bowers, 198 Mich App 320, 327-328; 497 NW2d 602 (1993).

Unless there are unusual issues in a case, sexual identity or preference cannot be framed as a moral issue or a mental health issue.

In Dumm v Brodbeck, 276 Mich App 460 (2007), a father tried to amend parenting time based on the mother's lesbian relationship. Because he failed to prevent competent evidence that the child's best interest had been compromised by the mother's sexuality, the court denied his motion.

In Healy v Bradford, an unpublished 1999 case, however, the court transferred physical custody of a child from his lesbian mother to his father. While the mother was a lesbian and the father was clearly concerned about this, the court's decision was not focused on that fact. What happened here was that the court relied on a psychologist's "conclusions that plaintiff's negative attitudes and perceptions of men and relationships had a negative effect on the child. This finding [was] supported by the evidence, given plaintiff's history of poor relationships with men and her admittedly negative attitudes about men and relationships. Moreover, the court's finding that defendant was favored under this factor is supported by the evidence, since the evidence indicated that defendant was a stable person with a healthy relationship with the child. The evidence also indicated that plaintiff was overly encompassing and controlling of the child, which would have a destructive effect on the child's development." The court in this case was also influenced by evidence that the mother had been dishonest.

In Hall v Hall, 95 Mich App 614 (1980), a much older case, the Court of Appeals awarded custody of the children to the father instead of their lesbian mother. The mother appealed, claiming the court saw her as unfit because she was a lesbian. The court, however, found that the record supported awarding custody to the father in this case: "The detailed findings of the trial court fully and fairly considered all of the evidence that was presented by the parties. With regard to the plaintiff's admitted preference for a homosexual relationship, the evidence was found to demonstrate that, given a conflict, the plaintiff would unquestionably choose the relationship over the children. Such potential conflict may be considered as bearing on the issue of which parent is the more qualified to furnish guidance in the best interests of the children. We are also persuaded that the trial court correctly regarded plaintiff's homosexuality as only one factor in its determination of moral fitness."

The "moral of the story," so to speak, is that parents are judged as parents these days. If they do not put their children first in their lives, they may lose custody. This would be same result if a father preferred time with his girlfriend over time with his children. Further, if a parent expresses disdain for the other parent--because of that parent's gender, sexual identity, religion, race, or other characteristics--this is likely to cause harm to the child who naturally loves both parents. Again, the issue is not sexual identity but, instead, how the court analyzes each factor in the "best interest test."

The bigger problem for same-sex relationships is that often a partner without a legal relationship to a child becomes a de facto "parent" of the child many times. If this partner has not adopted the child and is not the biological and/or "legal parent" of the child, that person has no right to request custody if he/she breaks up with the parent. Hopefully, in these situations, the adults will see past their own issues to recognize that the child's best interest must come first. Ideally, the child will have continuing contact with all the important people in his/her life, and the former partners will be able to subordinate their own interests to those of the child.

Freedom of Speech

Freedom to Speak Is Not Unlimited

By Marian L. Faupel
FAUPEL, FRASER & FESSLER
Ann Arbor, MI
2010


People often misconstrue the First Amendment to the United States Constitution. While this Amendment certainly grants us freedom of speech, that “freedom” can be regulated by the government. For example, a city can require a parade permit or other permits when large crowds are expected. The city can also limit comments at a public meeting.

In fact, MCLA 15.263(5), a provision in Michigan’s Open Meetings Act, provides that “[a] person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only.”

Most city councils, township boards, and school boards have a policy of establishing an agenda of issues to be discussed at the meeting. The agenda is compiled at least a week before the meeting in most cases, and anyone wishing substantial time to address the board/council or provide written materials must request permission to be put on the agenda. Even though permission is required, the council/board has no obligation to grant permission.

Most boards/councils have a “public comment” section at each public meeting. For some, this section occurs at the beginning of the meeting and is typically 3-5 minutes per speaker. Some boards/councils, however, have many people wishing to make public comments, and this section of the meeting can last for hours if there are many speakers present (even with limits on the length of comments). To solve this problem, those boards/councils sometimes put the public comment section of the meeting at the end, hoping that few people will stay that long. This is still legal although it may mean that those comments must be made at midnight.

I recall years ago when a woman who attended Ann Arbor City Council meetings on a regular basis objected strongly to limits on her comments. She cleverly decided to write out her comments and then divide them into 3-4 minute segments. Then, allegedly, she recruited homeless people to each reach a segment at the meeting in return for a small payment. This certainly violated the spirit of the policy limiting speakers.

In Lysogorski v Bridgeport Charter Township, 256 Mich App 297 (2003), a plaintiff sued after being prevented from speaking at a township meeting after the time for public comment had expired. The Court of Appeals upheld the dismissal of his lawsuit, holding that the Open Meetings Act clearly authorized the Board to limit public comment to a specific time during the meeting and a specific length of time.

Likewise, many newspapers limit editorial pieces and letters to the editor to a certain number of words and further prohibit ad hominem attacks in many cases. While newspapers are private, not public, and therefore not technically subject to the First Amendment, they have limited resources which affect the forum that is available, similar to the issues with which boards and councils contend.

With the growing popularity of Tea Party rallies and concern about resolutions to lay off teachers, reduce public services, increase taxes, and/or increase the role of government in our lives, many people are seeking redress. The obvious way to be heard is to attend a board or council meeting and to speak publicly there, especially if the media is present. Protesters are already angry in most cases, and limiting their speech at a meeting is likely to increase anger. An obvious solution is to make town hall meetings available where the primary purpose is to receive public comment. If there is a “quorum” of the board or council present, this meeting would also be subject to the Open Meetings Act; however, the board or council can waive any limits on comment or expand the time available to each speaker.

Child Support Can Continue After Termination of Parental Rights

It used to be that when a father's rights were terminated, so was the duty to pay child support in the future. That recently changed with a decision from the Michigan Court of Appeals in In re Beck Minors, decided in 2010. The Court held that a child, himself, has the right to child support from his father, indepedent of the father's legal "rights." This is a major change in the law.

There are several reasons that a father's rights can be terminated. One reason is if the father abuses or neglects his child(ren). Another is if the father refuses to pay child support and visit the child for 2 years, which is considered abandonment and a sure sign of "unfitness." The same rule applies to mothers.

If a child's mother remarries and husband wants to adopt the child, termination of the father's rights can be sought. If the father has a relationship to his child at that point, then his rights can only be terminated if there is clear and convincing evidence of unfitness. If the father has no relationship to the child, however, then his rights can be more easily terminated if a stepparent adoption would serve the child's best interests.

Even after the In re Beck Minors case, it appears that an adoption will still end the duty to pay child support since an adoptive father assumes the duty of support. If, however, a father's rights are terminated and there is no subsequent adoption, then child support can continue until the child turns 18 years old or graduates from high school, whichever is later (but in no event past the age of 19-1/2 years of age). This seems just actually, since the court should not "reward" a deadbeat father who has not paid past child support with a complete release of duty to pay future child support. That just does not seem just.

Surrogate Mother Keeps Her Child

In Michigan and many other states, surrogacy contracts have become criminal if the surrogate mother is paid for carrying the child. If there is no payment made to the surrogate mother (other than for medical expenses and a few other allowable expenses), then these contracts are still legal.

There are many ways that one can become a parent these days. One is the "old-fashioned" way where a couple copulates and becomes pregnant. Where one party is infertile, donor sperm may be used or a harvested egg may be used. If neither the husband or wife can conceive naturally, in vitro fertilization can be used.

But then come the surrogates. They can be inseminated with a husband's sperm and conceive a child with their own egg...or become implanted with an embryo that has the DNA of one half of the couple and DNA from someone else...or become implanted with an embryo that is not biologically related to the surrogate or the couple. This is what happened in a recent Washtenaw County, Michigan case assigned to Judge Darlene O'Brien. A couple had retained a surrogate to carry an embryo unrelated to the surrogate or the couple. After the child was born, the couple became "guardians" of the child. The couple had had to approach the court for "legal status" since a woman who gives birth becomes a "legal mother" automatically, but fathers not on the birth certificate and third parties (like this couple) are not automatically acknowledged as parents under the law without more.

After the guardianship was granted, the mother discovered that the wife (now guardian) had some misdemeanor convictions and some mental health problems. With this, the surrogate mother sought to vacate the guardianship, and the court granted her request.

There are tons of problems when people other than a natural mother and father seek to raise another person's child(ren) as their own. There are very technical rules that apply to who may become a guardian, who may be granted custody, and who may adopt. In these cases, it is wise to retain an attorney who has special experience in this area.

Faupel, Fraser & Fessler has been involved in many cases involving third parties and has prevailed in contested appeals. When you retain an attorney, do not hesitate to ask if the attorney has handled third party custody/guardianship/adoption cases in the past. Find out when he/she handled these cases, how many of these cases were handled, and whether the attorney prevailed.

TAKE YOUR CHOICE: SMOKING OR EMPLOYMENT

St. Luke’s hospital in Bethlehem, PA announced a new policy of hiring only non-smokers and screening all applicants for employment for nicotine. The reasons for this new policy are obvious. The hospital can potentially lower the cost of health insurance by improving the health of employees, and internal conflict over smokers in the workplace (and their numerous smoking breaks and odor) can be eliminated.

Smoking applicants can be expected to see this as impermissible discrimination, but it probably is not. Michigan, for example, passed a progressive civil rights statute in 1976 known as the Elliott-Larsen Civil Rights Act. That Act bars discrimination relating to places of public accommodation based on religion, race, color, national origin, age, sex, or marital status. MCLA 37.2302. There are even more restrictions placed on employment decisions because an employer cannot discriminate on the basis of religion, race, color, national origin, age, sex, height, weight, or marital status. MCLA 37.2202.

In addition to Michigan’s Elliott-Larsen Civil Rights Act, Congress passed the Civil Rights Act of 1964, which also bans discrimination based on an individual's race, color, religion, sex, or national origin. 42 U.S.C. s 2000e-2. Neither the state or federal statute prohibits discrimination based on smoking.

In 1990, Congress passed the Americans with Disabilities Act. 42 USC 12102 et seq. Generally speaking, the term “disability” means, with respect to an individual. a physical or mental impairment that substantially limits one or more major life activities of the individual. Michigan has a similar statute called the Handicappers Civil Rights Act, MCLA 37.1101 et seq. In 1995, the Michigan Court of Appeals decided a case under this Michigan statute where a hospital employee complained that the psychiatric unit had not banned smoking altogether. Smoking by patients was restricted to certain areas of the hospital, but the hospital had concluded that a ban of smoking altogether would impose an undue burden on mental patients. The complaining employee, on the other hand, claimed that she had asthma and was entitled to “accommodation” under the Handicappers Civil Rights Act, meaning that smoking should have been banned altogether at the hospital to accommodate her. The Court of Appeals did not agree, and she lost the lawsuit. Hall v Hackley Hosp, 210 Mich.App. 48 (1995).

It certainly appears that an employer may condition employment on verification that the employee applicant is a non-smoker. This is not prohibited by the civil rights act. An employee might argue that he/she is entitled to “accommodation” under the state or federal disabilities acts; however, an employer can defend against this action if it can prove that accommodating one person would result in an undue burden on another or result in an unreasonable expense. In the Hall v Hackley Hosp case, the court accepted the hospital’s claim that mental patients often “have a very intense craving to smoke, and denying them cigarettes can lead to increased assaultive behavior, acute withdrawal, or profound depression resulting in further mental and physical deterioration. The decision to permit the patients to smoke reflects the center's desire to first control the patient's psychotic episode before addressing the patient's tobacco addiction.” In short, these cases require a court to decide where one person’s nose starts and another person’s nose ends.

It is likely that more and more employers will consider policies that encourage better health for employees. Not only is health becoming a national issue, but the cost of providing health care for all Americans will be astronomical if Americans continue to consume poor diets, avoid exercise, and smoke. In the case of smokers who are also hospital patients and may have their treatment compromised if all smoking is banned, the hospital may decide to accommodate its patients by permitting smoking in certain areas while still banning smoking by any of the hospital’s own employees.

Stop Bullying My Child!

With the growing incidence of bullying at school and related student suicides, many people are concerned that there is not enough teeth in the law to protect students from this conduct. While efforts have been made in Michigan to pass anti-bullying laws, there has been much resistance to that in the Legislature.

One frustrated family decided to take a different path when their son continued to experience bullying throughout middle school and into high school. The bullying affected his grades and his self-esteem. He was sexually assaulted at school. He was certified as “emotionally impaired” and offered special education services. While the school did some investigation and made some attempt to intervene, it was not enough to protect this student. The parents finally decided to sue in federal court Title IX, the federal statute that provides that no student may “be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681. The United States Supreme Court developed a three part test for Title IX cases in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and the Sixth Circuit adopted that test in Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir.2000). In the Davis case, the Supreme Court held that IX may support a claim for student-on-student sexual harassment when the plaintiff can demonstrate the following elements:

(1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school;

(2) the funding recipient had actual knowledge of the sexual harassment, and

(3) the funding recipient was deliberately indifferent to the harassment.

In Patterson v. Hudson Area Schools, 551 F3d 438 (Mich. 2009), the Sixth Circuit held that the student had offered sufficient evidence to avoid dismissal of the case, and the case was remanded for a jury trial. While school had made some effort to intervene, support the student, and enforce its anti-sexual harassment policy, the court held that this was not enough to avoid the claim that it had been, in fact, “deliberately indifferent to the harassment.”

It is a pity when parents are forced into federal court to protect their children from bullying. Michigan should criminalize this behavior. It should not just be treated as a civil matter, especially when the bullying itself is often a crime and the bullying often leads to academic failure, social stigma, and often suicide.