If a Parent Wants to Change Custody at a Later Date,
That Parent Has a Hill to Climb
Parties sometimes agree to an outcome at the time of their divorce or child custody proceeding believing that they can change the provisions of that outcome sometime in the future. This is a trap for many people because the law requires “proper cause” or a “change in circumstances” to later modify a custody order or judgment.
MCLA 722.27(1)© provides that a court may:
Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age.
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
A three-step analysis is applied to motions to change custody.
1. The party moving to change custody must allege and prove that there is “proper cause” to change custody or a “change in circumstances” warranting a change. This is called the “threshhold question” and it is based on the statute set forth above.
In Meinke v Meinke, WLWL 4209344 (Mich App 2007), the Michigan Court of Appeals held: “To establish proper cause meriting a consideration of a custody change, the movant must prove appropriate grounds that have had or could have a significant impact on the children's life to the extent that a reevaluation of the children's custodial situation should be undertaken.” Under Vodvarka v Grasmeyer, 259 Mich App 449 (2003), the Court held that only factual developments that occurred after the preceding judgment or order can be considered in determining proper cause of a change in circumstances. This prevents people from changing attorneys and strategies and then trying to change custody based on the same facts that existed prior to the earlier custody proceeding. Further, the Vodvarka case and the Meinke case both make it clear that the grounds for a finding of “proper cause” must include an allegation that this cause had a “significant impact” on the child.
The second method of reaching the “threshold question” is a “change in circumstances” under the statute set forth above. In Meinke, the Court held: “To constitute a change of circumstances meriting a consideration of a custody change, the movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the children which have had or could have a significant effect on the children's well-being have materially changed.” Whether the threshold question involves “proper cause” or a “change in circumstances,” the inquiry turns on an analysis of the twelve-factor best interest test set forth at MCLA 722.23.
Notably, in Meinke, the moving party complained that the other parent drove with the children after drinking, did not help with homework and did not bathe the children at night along with other complaints. The court held, however, that there was no evidence that the father had been intoxicated while driving, that his occasional failure to help with homework had impacted school performance, or that his failure to bathe the children at night if they were not dirty had been a problem. In fact, the father bathed the children in the morning. This case shows how important it is to apply the best interests test to the analysis and to focus on matters that have a “significant” negative impact on the children.
2. If a party has shown sufficient proper cause or change in circumstances to warrant consideration of a change of custody, the next issue is whether the requested change will effectively change the current “established custodial environment.” The established custodial environment is defined in the statute set forth above. It can be shared between the parties, with the mother primarily, or with the father primarily. If a party wants to go from a week on/week off schedule to a schedule that rotates every two weeks, that is not a change in the shared established custodial environment. On the other hand, if a party wants to go from a shared custodial environment to one in which the father has primary possession, that DOES represent a modification of the established custodial environment.
3. Finally, if a party does, in fact, move to change the established custodial environment, then that party must prove that such a change serves the child’s best interest by “clear and convincing” evidence. In criminal cases, the “evidentiary standard” is “beyond a reasonable doubt,” which is something like having 95% of the facts favor the prosecution. In most civil cases, the “evidentiary standard” is “a preponderance of the evidence,” which is something like having 51% of the facts favor the plaintiff. The intermediate evidentiary standard of “clear and convincing evidence, however, is something like requiring the moving party to have 75% of the facts favor him/her. The reason for this is that the courts want to promote stability in a child’s life, and a change of custody—or a change in the established custodial environment—is considered a major change for the child. There must be clear and convincing evidence that this change would promote the child’s best interest.
The best interest test, MCLA 722.23, requires consideration of the following twelve (12) factors:
(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.
Conclusion
To change custody, one must first show proper cause or a change in circumstances. If the change requested would modify the established custodial environment, then the moving party must offer clear and convincing evidence that such a change would serve the child’s best interest. The evidence is limited to facts that have developed after the last custody order or judgment was entered by the court. Parties cannot use a motion to change custody as a method of re-trying their case with new counsel or a new theory. As a result, parties must be aware that changing custody at a later date amounts to climbing a steep hill, and they are well-advised to address difficult issues now and not later.
Friday, September 17, 2010
Wednesday, July 28, 2010
Monday, May 24, 2010
Who May Gain Custody of a Minor Child
More and more, people are seeking custody of a minor child. This certainly occurs when parents divorce and therefore no longer live together. It can occur when parents were never married and dispute the issue of custody. What is more challenging is when people without a “legal relationship” to a child seek custody of the child. This situation can exist with biological fathers who are not “legal” fathers because they are not on the birth certificate, have no affidavit of parentage, and have no order of filiation from a court. It can also occur when gay or lesbian parents are involved, when stepparents or grandparents are involved, or other people who are not legal parents but love the child(ren).
Perhaps the most notable recent case was that of “Baby Jessica.” This author represented the child’s parents, Dan and Cara Schmidt, who eventually got their daughter back from Robbie and Jan DeBoer, who had tried to adopt her. But there are many other lesser known cases involving this sort of custody battle.
Michigan has several statutes relating to “third party custody disputes,” as they are called, and court decisions as well. In fact, this area of the law has become quite dynamic since the Baby Jessica case.
First of all, a party must have “standing” to petition for custody. This means that the person needs a “real interest in the case.” While the love of a child is a “real interest,” it is not enough under the law. You have to fit into one of the groups set forth by statute. This was discussed in detail in Bowie v. Arder, 441 Mich. 23, 42-43 (1992), and Heltzel v. Heltzel, 248 Mich.App. 1, 31 n. 20 (2001). The courts have held that a third party does not gain “standing” by virtue of the fact that the child has lived with him or her. In fact, in the Baby Jessica case, which was decided as In re Clausen, 442 Mich. 648, 678-682 (1993), the child had lived with the DeBoers her entire life when the case was in the courts.
Michigan’s Child Custody Act confers standing on third parties in two circumstances. First, MCL 722.26b provides that third-party guardians have standing to bring an action for the custody of a child, and limited guardians may also seek custody if and only if the parent has failed to substantially comply with the limited guardianship placement plan. You must have an order from the family court formally appointing you as the child’s guardian or limited guardian to take advantage of this provision.
Second, MCL 722.26c(1)(b) also confers custody if a third party meets all the following conditions:
( i ) The child's biological parents have never been married to one another.
( ii ) The child's parent who has custody of the child dies or is missing and the
other parent has not been granted legal custody under court order.
( iii ) The third person is related to the child within the fifth degree by marriage, b blood, or adoption.
Even if a third party has “standing” to petition for custody, he/she faces a huge burden in prevailing against a fit natural parent. In fact, MCLA 722.25(1) provides:
If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.
There is an exception to this rule for cases where the child was conceived through rape or one of the parents has been convicted of criminal sexual conduct. There is another exception where a parent is deemed by the court to be currently “unfit.” See In re Anjoski, 283 Mich.App. 41 (2009); Hunter v Hunter, 484 Mich. 247 (2009); and Mason v Simmons, 267 Mich.App. 188 (2005). Otherwise, a third party must have “clear and convincing evidence” that an award of custody to him/her serves the child’s best interest.
The best interest “factors” are set forth at MCLA 722.23:
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 to continue the education and raising of the child in his or her 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 or 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 considers the child to be of sufficient age to express preference.
j. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
k. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
l. Any other factor considered by the court to be relevant to a particular child custody dispute.
In In re Anjoski, 283 Mich App 41 (2009), a natural father had custody of his child and was living with his new wife when he died. The mother of the child had a history of drug abuse and abusive relationships; however, after the father died, she petitioned the court to have the child transferred to her from the now widowed stepmother. The court denied the petition in the end, but the case was complicated. First of all, the stepmother also petitioned the court for formal/legal custody of the child, but her petition was rejected because she did not have “standing.” Then the court held that the mother was “unfit” and therefore not entitled to the parental preference.
Then, after those rulings, the court held that it still have the power to award the child to the stepmother because once the petition was before the court based on the mother’s court filing, another statute altogether vested the court with the power to consider a placement beyond either parent. In fact, MCLA 722.26(1)(a) provides as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.
Emphasis supplied. In the Anjoski case, the court held that it served the child’s best interest to remain with the stepmother.
It is imperative that parties have competent counsel in these challenging cases of third party custody. These disputes can be emotionally traumatizing and very expensive, and it is important to be realistic about the legal and factual challenges in a case before it reaches the court.
Perhaps the most notable recent case was that of “Baby Jessica.” This author represented the child’s parents, Dan and Cara Schmidt, who eventually got their daughter back from Robbie and Jan DeBoer, who had tried to adopt her. But there are many other lesser known cases involving this sort of custody battle.
Michigan has several statutes relating to “third party custody disputes,” as they are called, and court decisions as well. In fact, this area of the law has become quite dynamic since the Baby Jessica case.
First of all, a party must have “standing” to petition for custody. This means that the person needs a “real interest in the case.” While the love of a child is a “real interest,” it is not enough under the law. You have to fit into one of the groups set forth by statute. This was discussed in detail in Bowie v. Arder, 441 Mich. 23, 42-43 (1992), and Heltzel v. Heltzel, 248 Mich.App. 1, 31 n. 20 (2001). The courts have held that a third party does not gain “standing” by virtue of the fact that the child has lived with him or her. In fact, in the Baby Jessica case, which was decided as In re Clausen, 442 Mich. 648, 678-682 (1993), the child had lived with the DeBoers her entire life when the case was in the courts.
Michigan’s Child Custody Act confers standing on third parties in two circumstances. First, MCL 722.26b provides that third-party guardians have standing to bring an action for the custody of a child, and limited guardians may also seek custody if and only if the parent has failed to substantially comply with the limited guardianship placement plan. You must have an order from the family court formally appointing you as the child’s guardian or limited guardian to take advantage of this provision.
Second, MCL 722.26c(1)(b) also confers custody if a third party meets all the following conditions:
( i ) The child's biological parents have never been married to one another.
( ii ) The child's parent who has custody of the child dies or is missing and the
other parent has not been granted legal custody under court order.
( iii ) The third person is related to the child within the fifth degree by marriage, b blood, or adoption.
Even if a third party has “standing” to petition for custody, he/she faces a huge burden in prevailing against a fit natural parent. In fact, MCLA 722.25(1) provides:
If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.
There is an exception to this rule for cases where the child was conceived through rape or one of the parents has been convicted of criminal sexual conduct. There is another exception where a parent is deemed by the court to be currently “unfit.” See In re Anjoski, 283 Mich.App. 41 (2009); Hunter v Hunter, 484 Mich. 247 (2009); and Mason v Simmons, 267 Mich.App. 188 (2005). Otherwise, a third party must have “clear and convincing evidence” that an award of custody to him/her serves the child’s best interest.
The best interest “factors” are set forth at MCLA 722.23:
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 to continue the education and raising of the child in his or her 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 or 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 considers the child to be of sufficient age to express preference.
j. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
k. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
l. Any other factor considered by the court to be relevant to a particular child custody dispute.
In In re Anjoski, 283 Mich App 41 (2009), a natural father had custody of his child and was living with his new wife when he died. The mother of the child had a history of drug abuse and abusive relationships; however, after the father died, she petitioned the court to have the child transferred to her from the now widowed stepmother. The court denied the petition in the end, but the case was complicated. First of all, the stepmother also petitioned the court for formal/legal custody of the child, but her petition was rejected because she did not have “standing.” Then the court held that the mother was “unfit” and therefore not entitled to the parental preference.
Then, after those rulings, the court held that it still have the power to award the child to the stepmother because once the petition was before the court based on the mother’s court filing, another statute altogether vested the court with the power to consider a placement beyond either parent. In fact, MCLA 722.26(1)(a) provides as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.
Emphasis supplied. In the Anjoski case, the court held that it served the child’s best interest to remain with the stepmother.
It is imperative that parties have competent counsel in these challenging cases of third party custody. These disputes can be emotionally traumatizing and very expensive, and it is important to be realistic about the legal and factual challenges in a case before it reaches the court.
Friday, April 30, 2010
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.
(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.
Tuesday, April 27, 2010
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.
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.
Monday, April 19, 2010
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.
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.
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.
Subscribe to:
Posts (Atom)
