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Collected Articles on Family
Law Issues Affecting Parents and children Today
By Jeanne M. Hannah,
Traverse City Michigan Family Lawyer
Child's
Preference in Custody Decisions Revisited (April 3, 2006)
The
frequency with which I am asked when a child can choose the parent with whom he
or she wishes to live is not singular to me. Ben Stevens, a South Carolina
attorney, writes the following in his Blog:
Rarely
does a week go by in which I am not asked the following question: How old does a
child have to be before he can choose which parent he/she wants to live with?
Put another way, what is the "magic age" in South Carolina when children are
able to make a decision in custody cases?
Fortunately, there is no such "magic age" in South Carolina. In our state, the
Family Court must consider the preference of every child, no matter how young or
how old. Of course, the Court is also required to place the appropriate weight
on the child's reasons for having such a preference. This second step is equally
important (if not more so) than the first one. The applicable statute on this
issue is
Should
there be a designate age at which children may make this decision? I believe
that the answer clearly is "no." Why? Some of the reasons for my opinion are
listed below:
· Most
children are simply not mature enough to consider all of the implications of a
custody determination. Children love both of their parents, and if being candid,
they would tell you that they want to live with both of their parents and not
one vs. the other. To them, anything less can simply be unacceptable.
· Most
children prefer to live in the least restrictive environment, and this is
especially true with teenagers. If you were a fifteen year old, which of the
following parents would you pick: Parent A who lets you come and go as you
please, stay out until all hours of the night, not do chores around the house,
and not put the proper emphasis on schoolwork, or Parent B who has strict rules
with regard to all of those issues? Which of those households is more likely to
help that child grow into a successful adult?
· Children are subject to improper influence by their parents or others.
Unfortunately, a parent who is desperate to "win" a custody case will attempt to
bribe a child to choose him/her over the other parent. What young child would
not be enticed (at least somewhat) by the lure of a shiny new video game system,
motorcycle, or dance lessons? What if grandma or grandpa offers those items to
the child if he "picks" a certain parent?
· Children do not want to upset their parents. In fact, it is not uncommon for
children of conflicted divorces to begin to take on some parental
responsibilities toward their parents. Could this desire not to hurt a parent's
feelings or disappoint him/her lead a child to make a choice on that basis? Is
that really in the child's best interest?
· Family
Court judges will tell you that custody decisions are among the toughest
decisions they must make. Why should we believe that a 10, 12, or 15 year old
child should be able to address such a difficult issue? A child should never be
put in that position or allowed to make such a difficult, often agonizing,
decision.
S.C.
Code Section 20-7-1515.
Child’s
preference for custody to be considered.
In determining
the best interests of the child, the court must consider the child’s reasonable
preference for custody. The court shall place weight upon the preference based
upon the child’s age, experience, maturity, judgment, and ability to express a
preference.
_____________________________
Cohabitation and Real Property Ownership: The Problems with Joint Ownership
When the Relationship Fails (April 1, 2006)
Imagine
that your live-in relationship goes South and the love of your life leaves.
Imagine that the two of you have acquired a house together, and titled it
jointly “with full rights of survivorship.” Imagine fifteen or twenty years go
by, and you’ve made all of the mortgage, tax, maintenance, insurance, and other
payments necessary to acquire the house. The house in which you and your former
lover had a small – say $20,000 – interest (one acquired with your money) is now
free and clear of a mortgage. Property values have increased and the house is
now worth $250,000. Is it yours? Can you leave it to your children? Can you sell
it free and clear? The answer to all of those questions if the property is in
Michigan is “No.”
In a
case of first impression, the Michigan Court of Appeals decided Wengel v
Wengel, Docket No. 263657 (February 28, 2006) [For Publication] The specific
issue involved is whether the doctrine of adverse possession can be extended to
apply to real estate owned as a joint tenant with full rights of survivorship.
Cohabitation and Real Property
Ownership
by Jeanne M. Hannah, April1,
2006. [Word]
To download a pdf file,
click here:
Learn how to avoid costly
mistakes in property ownership that could deprive you of your valuable property
rights if your cohabitation relationship fails.
_____________________________
More About Whether a Child
Can Choose Which Parent to Live With (March 25, 2006)
I've
prepared a comprehensive article on this topic. You may read "Can
a Child Ever Choose Which Parent She Wants To Live With" here.
_____________________________
At
what age can a child choose which parent to live with? (March 20, 2006)
In
early February, I wrote a post about this question. Then I left for a vacation
and 3 weeks went by. When I returned and looked at my Blog, there was a comment
(a question) from a child (a teenager, I surmised). This child's question /
comment essentially indicated that he or she felt caught in the middle. The
child expressed concern about trying to make both parents happy.
By the
time I answered the question, the email address for the child was no longer
operational.
This
is the email I wrote -- the one that bounced back. I post it now because I see
that someone continues to access that question on my blog. I hope that the
person who asked this question will come back to the blog in search of more
information.
I
am sorry that my response to your email is so late. Three weeks is a long time
to wait for an answer. I was away and did not check the comments on my blog.
Here's an answer to your question.
One of the twelve "best interests of the child" factors that a judge has to
consider when deciding custody is the child's preference. It seems as though you
feel caught in the middle and you want to make both of your parents happy and
you don't want either one to think you love the other parent more. That's a
very tough spot to be in.
I don't know how old you are, but I am assuming that you are in your teens.
If parents do not come to an agreement about how custody is to be handled, then
there will be a hearing. During this hearing, the referee or judge will meet
with you privately and talk to you about your preference. He or she will ask you
which parent you would prefer to live with and what your reasons are for that
perference. If you can give the judge or referee a logical reason or reasons to
prefer custody with one of your parents, your preference is more likely to be
given weight. A reason such as "my father is the parent who helps me with my
homework and I really need his consistent help in order to keep my grades up so
I can get into a good college" is more likely to be given weight than a reason
such as "my mother lets me be with my friends any time I want and she lets me
stay out later." It's a good idea to give serious thought to what reasons you
have for preferring a particular custodial arrangement so that you are prepared
for this conference with the judge.
Sometimes kids feel like they have to say that they don't have a preference to
keep both parents happy. Sometimes kids feel guilty if they tell the referee or
judge how they really feel -- that they really prefer one parent over the other.
It's important that you know that referees and judges usually respect the
child's confidential statements, and you can tell a referee or judge that you
would like him or her to do so. That way, you can say what you really feel,
without worrying that one of your parents will know what you've said.
Divorces can be very tough on parents and on children. You might think about
talking to your school counselor about how you feel, especially if you are
feeling pressured, stressed or anxious about the custody issue. Your school
counselor might be able to help you figure out how to communicate with your
parents so that they are able to understand how you feel and to accept any
reasons you might have for a particular custody situation.
If
you, Gentle Reader, are parenting a teenager and are concerned about this topic,
you might consider how important it is to keep children out of the middle.
Judges and Referees make this type of decision. Putting pressure on your child
to make you happy by expressing a preference to live with you is an awful burden
for a child. It's also important to remember, that in most cases, it's better
for a child to have two functional parents in his or her life.
I've
prepared a comprehensive article on this topic. You may read "Can
a Child Ever Choose Which Parent She Wants To Live With" here.
_____________________________
Single Mothers By Choice
(March 19, 2006)
Things sure
are different from 1959 when I was growing up. [How many of the girls in my high
school class are on their 2nd or 3rd husbands?]
Modern times?
Jennifer Egan writes for the magazine section of the New York Times today about
young (and not so young) ladies -- career girls who've been unsuccessfully
looking for "Mr. Right" -- who are electing to bypass the love and marriage and
go right to the baby carriage. They're buying sperm online and talking about
their experiences on a listserv "Single Mothers By Choice."
See,
Wanted: A Few Good Sperm in the March 19, 2006 New York Times.
_____________________________
Should Same-sex Couples Be Permitted to Adopt? (March 14, 2006)
This seems
like a classic example of the Burger King chain's advertising: "Have it your
way." In other words, political considerations often lead a potential candidate
for the presidency to speak out of both sides of his/her mouth in the hope that
all of his constituents will hear what they want to hear.
The Boston
Globe reported on March 14, 2006, that Massachusetts Governor Mitt Romney, in an
appearance at the Southern Republican Leadership Conference in Memphis on
Friday, March 10th, reiterated his position that "every child in American has
the right to a mother and a father." The gathering is an important early event
for those positioning themselves as presidential hopefuls. But on March 13th,
Romney backed off a little, telling reporters that same-sex couples have "a
legitimate interest in adopting children.
Apparently, in
an effort to placate part of his constituency that favors gay and lesbian
rights, Romney said he would file a "very narrow" bill aimed at letting Catholic
Charities, the social service arm of the Boston Archdiocese, and other religious
groups exclude same-sex couples from their adoption programs if including them
violates religious tenets. But he also noted that gays and lesbians have a right
to adopt.
Although Romney said later at a press conference that same-sex couples may feel
discriminated against by his proposal, he said that “there are many, many other
agencies that can meet the needs of those gay couples, and I recognize that they
have a legitimate interest in being able to receive adoptive services."
Romney
is laying the groundwork for a possible presidential campaign in 2008, thus in
recent months, he has sought to strike a balance between his opposition to
same-sex marriage and his role as the executive officer in a state where such
marriages are legal. The Boston Globe reports that in out-of-state speeches to
GOP audiences, Romney often attacks the Supreme Judicial Court for its November
2003 decision legalizing same-sex marriage, which made Massachusetts the first
state to do so.
Romney’s statements are less offensive than ones he made before beginning to
position himself as a Republican hopeful candidate for the presidency. Last
year, for example, gay-rights supporters accused him of belittling gay parents
after he told a Republican audience in South Carolina, ''Some are actually
having children born to them."
Also
last year, Romney publicly criticized an effort to use gender-neutral language
to describe parents on birth certificates, saying: "It's not right on paper.
It's not right in fact. Every child has a right to a mother and a father."
Read
the entire article in the
Boston Globe.
_____________________________
When
is It Proper for a Court to Impute Income When Awarding Alimony (February
17, 2006)
Clients
are often dismayed when a trial court imputes income when making an award of
child support or alimony / spousal support. Explaining to the layperson that
"imputing income" means that the court assumes that the person could make the
same salary or wages that he or she was making in a previous employment if they
wanted to doesn't make a client any happier.
What
about husbands or wives who have lost their jobs and who are still looking for
work? When is it fair and equitable to impute income to them, and what
percentage of their actual wages can be ordered as alimony payments?
On
February 16, 2006, the Michigan Court of Appeals said imputing income to a
husband who had been laid off for that an award that gave the wife 60% of her
former husband's gross earnings was unfair and "clearly inequitable".
See
Sanders v Sanders, unpublished Memorandum Opinion (2/16/2006)
In
this case, the Court of Appeals reversed and remanded to the trial court stating
that the trial court had wrongly imputed income to both parties. In the case of
the defendant husband, the Court of Appeals found clear error on the part of the
trial court saying:
"It
was undisputed that defendant was employed while plaintiff was not * * *
However, the trial court clearly erred in imputing additional income to
defendant without finding that he had voluntarily reduced his income in order to
avoid paying spousal support. * * * To the contrary, the evidence showed that
defendant had been laid off eight months before plaintiff sued for divorce."
Similarly, the Court of Appeals held that the trial court had wrongly imputed
income to the plaintiff wife. The undisputed evidence at trial was that
defendant husband was employed while plaintiff wife was not, and that plaintiff
had been unsuccessful in obtaining employment, yet the trial court imputed an
income to plaintiff without finding that she had voluntarily limited her income
to obtain spousal support.
The
Court of Appeals remanded to the trial court for a redetermination of alimony,
in light of the parties' actual abilities, needs, and circumstances, taking into
account that the objective is to balance the needs and abilitites of each party
in a way that will not impoverish either party.
_____________________________
When
Can a Child Choose Which Parent He or She Wants to Live With? (February 2,
2006)
A
parent recently emailed me with this question: " Have you had any experience
with children who are 14 and no longer wish to stay with the non-custodial
parent? What rights does the minor have in this case?"
This
question is asked so often that it appears that there's a common misconception
that children have any rights at all to decide when they want to change their
parenting time schedule.
Parenting time and custodial arrangements cannot be changed unless the parent
filing the motion for a modification can show that since there has been a
"change in circumstances" or "good cause" that has arisen since the entry of the
most recent custody and parenting time order that makes a modification best for
the child. The intent of the Legislature is to make it difficult to change the
prior order to promote stability for the child. So unless a parent can show good
cause or a change in circumstances, the Family court does not even have to let
the parent have a best interest hearing on his or her motion.
In
2003, the Michigan Court of Appeals finally addressed the meaning of the terms
"proper cause" and "change in circumstances."
According to the Court of Appeals in
Vodvarka v Grasmeyer, 259 Mich App 499 (2003), to establish "proper cause"
[A] movant
must prove by a preponderance of the evidence the existence of an appropriate
ground for legal action to be taken by the trial court. The appropriate
ground(s) should be relevant to at least one of the twelve statutory best
interest factors, and must be of such magnitude to have a significant effect on
the child's well-being. Vodvarka, supra at 512
According to
the Vodvarka panel, to establish a "change in circumstances"
[A] movant
must prove that, since the entry of the last custody order, the
conditions surrounding custody of the child, which have or could have a
significant effect on the child's well-being, have materially changed.
Not just any
change be be enough to get a hearing. The Vodvarka Court ruled:
Again, not
just any change will suffice, for over time there will always be some
changes in a child's environment, behavior, and well-being. Instead, the
evidence must demonstrate something more than the normal life changes (both good
and bad) that occur during the life of a child, and there must be at least some
evidence that the material changes have had or will almost certainly have an
effect on the child. Vodvarka, supra at 513-514
Thus, many
Family Courts in Michigan are dismissing motions for a change in custody or
parenting time without a hearing. One panel of the Michigan Court of Appeals
ruled recently that just the child's preference isn't enough to warrant a
change.
Schemanski v Skank, Docket No. 261356 [Decided Aug. 11, 2005 ]
I've prepared
a comprehensive article on this topic. You may read "Can
a Child Ever Choose Which Parent She Wants To Live With" here.
_____________________________
Resource: Child Custody Battles (February 2, 2006)
You
can listen to a web broadcast of a recent NPR talk show titled
Tug of War Over Children on
Over
40% of marriages end in divorce. The battle for child custody and support are
among the most common and contentious disputes heard by our nation's courts.
This web broadcast focuses on the following issues: What do judges look at when
making custody and child support decisions? Do moms get an unfair advantage?
What happens when one parent snatches the kids and hides them from the other
parent? Should teenagers get a say in where they live? What happens to the kids
when parents break up?
Read
more:
Can a Child Ever Choose Which Parent She Wants to Live With?
_____________________________
Neighborhood Watchdog
(January 30, 2006)
Lorne
Gold, a family lawyer in Bloomfield Hills, Michigan alerted our Michigan Family
Law Section's Listserv today to a valuable service available to anyone with
Internet access.
The
website for Family Watchdog published these statistics on its website:
· 3% of all
sexual assaults against children are committed by someone whom the victim knew.
· The typical
sexual predator will assault 30 - 60 times before being caught.
· The
re-arrest rate for convicted child molesters is 52%.
· We aim to
reduce these percentages by ensuring that all sexual predators are known.
The Family
Watchdog website allows you to put in 3 addresses -- yours and/or those of your
family members or friends. The service is free and is designed to locate
registered sex offenders in your area. When you enter an address, you'll see a
map. You can click on the squares that appear, and see photos (where available),
addresses, and convictions.
Family
Watchdog has a simple notification service. You may specify up to three
addresses (not zip codes) that you want to watch and
the distance around those addresses. The website does the rest. Data is updated
daily from multiple public data sources. As soon as a convicted sex offender
registers an address in your area, you will be alerted.
To use Family
Watchdog, click
here.
_____________________________
The
Impact of COBRA Payments on an Alimony Award (January 22, 2006)
On
January 19, 2006, the Michigan Court of Appeals decided in an unpublished
opinion that a trial court has to consider the needs of the parties and their
ability to pay when ordering a party to make the COBRA payments for an
ex-spouse.
In
Murphy v Murphy, the defendant husband appealed the trial court’s award of
three years of COBRA benefits to plaintiff wife. The trial court had awarded
alimony to her in the amount of $300 per week. Together with the child support,
the husband would thus pay nearly 50% of his after-tax income to her before the
cost of the COBRA benefits was even considered.
The
Court of Appeals ruled that it was improper for the trial court to order the
husband to make the COBRA payments without any indication of how much they would
be and how those payments would affect his income. The court likened the
analysis to one for alimony, saying:
"It
cannot be said that, in awarding COBRA benefits to plaintiff, the trial court
balanced the needs of each party or considered how much defendant or plaintiff
could afford without any evidence or even consideration of the actual cost of
doing so."
Thus,
the court remanded to the trial court for further proceedings with regard to the
COBRA payments and to consider whether the COBRA payments would affect the trial
court's prior ruling on alimony.
An
additional issue considered by the court was whether the trial court should have
considered the husband's recent reduction in overtime when setting the amount of
alimony. Since this issue often is raised, it's important to note the Court of
Appeals' response:
"Defendant’s complaint that, because of his reduced overtime hours, the annual
income imputed to him does not reflect his current income, was considered and
rejected by the trial court. This was perfectly reasonable and well within the
trial court’s discretion. Given that the number of hours defendant worked varied
over the years (as did his income), taking a sample of defendant’s most recent
completed calendar years of work and then averaging the number of hours worked
is a very reasonable method to measure his income. If it turns out that
defendant earns less income now or in the future, due to reduced hours of
overtime, or any other reason, he is free to file for a change of alimony due to
changed circumstances. Gates, supra at 433-434. With regard to the
permanency of the alimony, defendant may likewise request a change in alimony
when he retires."
Read
the entire case of
Murphy v Murphy here.
_____________________________
Who
Has the Right to Make End-of-Life Decisions? (January 18, 2006)
On
January 16, 2005, Massachusetts' highest court ruled that the state can withdraw
life support from Haleigh Poutre, an 11-year-old girl who was kicked and nearly
beaten to death. She has been in a coma since September; her adoptive mother and
stepfather are accused of abusing her.
Since
Haleigh's assault, her aunt Holli Strickland, who had adopted Haleigh, has died
in an apparent murder-suicide, and her husband is being held in connection with
the injuries Haleigh suffered.
The
state Department of Social Services, which was granted custody of Haleigh after
her severe injuries, successfully petitioned a juvenile court for permission to
remove life support. Mr. Strickland challenged the state in court, asking to be
considered Haleigh's de facto parent and to be allowed to argue for
keeping her alive.
The court's
opinion noted a long history of complaints about abuse and neglect of Haleigh to
the Department of Social Services since September 2002. Since 2004, Haleigh had
been receiving regular counseling. The DSS had been making monthly visits to her
home, yet inexplicably, did not uncover the extent of Haleigh's abuse.
"Some
describe this as a case about death," the opinion said. "It should more
correctly be described as a case about a young girl who has suffered
tremendously from acts of violence and cruelty and who now will be permitted to
pass away with dignity."
The
opinion added that Haleigh's "memory will remind us, time and again, that we, as
a society, need to do more to aid children who are neglected and abused, and
thereby denied the care and nurturing they so desperately want and need."
Read
the full report in the
New York Times.
_____________________________
More on Deployments and
Custody (December 30, 2005)
Attorney
Grant Griffiths has written on his blog
Kansas Family and Divorce Lawyer about a custody decision awarding custody
of a 2-year-old to the mother after a father was deployed to Iraq for a
significant period of time, rejecting the father's request for a delay under
authority ot the
Servicemembers' Relief Act.
_____________________________
Alert:
Avoiding Violation of a Personal Protection Order – What Constitutes a
Violation? (December 30, 2005)
Sometimes a PPO may prohibit a person from contacting his or her former spouse,
girl or boy friend, or cohabitant in person or by telephone, and may limit any
contact to emails or writings. If the parties have children in common, such a
PPO might permit specific telephone contact with the children and/or might
permit certain kinds of exchanges of the children for parenting times.
The
Michigan Court of Appeals just decided two cases – actually two separate
incidents between the same parties that were brought to the court in two
separate appeals – that should help parents in these situations avoid criminal
prosecution for violations.
The
issues before the Court were: does leaving a message on an answering machine
violate the PPO and does driving by the ex-wife’s house violate the PPO?
There
is a great danger of prosecution for criminal contempt if a party violates a PPO.
A father or mother separated from the children will certainly wish contact with
the children. It is very important to understand how a parent can get contact
with the children safely without subjecting himself/herself to criminal
prosecution, fines, and jail time.
Reviewing these two recent cases will help you to understand how important it is
to consider carefully and to comply with the exact wording in the PPO to avoid a
violation and criminal contempt prosecution.
Messages left on an answering machine:
In
Ottevaere v. Tweddle, Docket No. 255776, decided December 20, 2005, a
PPO prohibited personal contact with the children’s father’s ex-wife and
permitted certain other specific kinds of non-personal contact with her. The PPO
also allowed certain scheduled telephone contact with the parties’ children.
Later,
the father was convicted of criminal contempt for violating the PPO because he
left a message for the children on the answering machine and later called and
asked the mother to put the children on the phone. The Michigan Court of Appeals
was asked to decide whether the terms of the PPO were so vague that the order
was impossible to comply with.
The
Court of Appeals concluded that a reasonable person could easily understand the
telephone calls the father made would violate the PPO. The PPO language clearly
indicated this father could only call the parties’ children at prearranged
times. The PPO did not prohibit him from contacting the petitioner-ex-wife by
e-mail, in writing, or by means of a third-party intermediary. The Court,
therefore, upheld his criminal conviction.
Driving by the house:
In a
separate appeal,
Ottevaere v Tweedle, Docket No. 259078, also decided on December 20,
2005, the Court of Appeals held that the father’s acts – driving by his
ex-wife’s home – also violated the PPO. For this, he was committed to jail for
30 days and also ordered to pay a $500 fine. The Court of Appeals held that the
trial court correctly found that the father’s appearance at his ex-wife’s home
on the one occasion at issue constituted contempt.
In
this case, the parents were divorced after a six-year marriage and had two
children together. After the divorce, the mother alleged that her ex-husband had
physically threatened her, had made harassing and intimidating phone calls, had
repeatedly threatened to not return the children after visitation, and had
battered her during a visitation exchange. The trial court issued a PPO that
prohibited him from stalking as that is defined by statute and from appearing at
her work place or residence.
The
evidence at a hearing on the alleged violation showed that the mother’s fiancé
had witnessed the father drive slowly past her house with the car window rolled
down and that his child had also recognized his father.
The
father argued the trial court was required to find beyond a reasonable doubt
that he had committed a course of conduct involving two or more instances of
harassment before holding him in contempt. There had been the prior telephone
violation. The Court of Appeals held that because the trial court originally
granted the PPO because it found the mother had established a course of
harassing conduct by her ex-husband, any further violation, including his
arrival at her home, (whether she was there or not), would merely add to the
established series and continue the harassment contrary to both the statute and
the plain language of the PPO.
The
lesson to be learned: people need to be very careful to avoid being held in
criminal contempt and being sent to jail. There is a zero tolerance on the part
of the court system for domestic violence of any kind, as should be the case.
Err on the side of caution To avoid the danger of being held in contempt,
parents should try to involve third parties for contacts, should stick strictly
to court orders for telephone contacts, and should – if possible – involve
agencies to buffer child exchanges to avoid being accused of violating court
orders.
See
my website for parenting time options, which include Safe Haven, an agency
organized under Child and Family Services, that provides services for safe
exchanges and supervised visitation in the Grand Traverse County area. (Scroll
down to Parenting Time resources). Similar agencies exist nationwide.
_____________________________
Appeal of Cohabitation
Decision (December 22, 2005)
Today's
Detroit Free Press related that Christian Muller is appealing to the MSC the
recent ruling that he couldn't permit his live-in girlfriend to cohabit when his
daughters were spending parenting time with him. The article can be read
here.
_____________________________
How a Trial Court Looks
at a Move-Away Case (December 14, 2005)
You’ve
perhaps read the other entries in this Blog dealing with the so-called 100-mile
rule – the statute that says, in part, as follows:
"(1) A
child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as
otherwise provided in this section, a parent of a child whose custody is
governed by court order shall not change a legal residence of the child to a
location that is more than 100 miles from the child’s legal residence at the
time of the commencement of the action in which the order is issued
A case
decided by Michigan's Court of Appeals on December 8, 2005 illustrates how a
trial court may evaluate a parent’s motion to remove the children’s residences.
If
you’re planning to make such a motion, you should check out the decision in
Raneses v Raneses,
an unpublished case, Docket No. 261468.
When
considering a petition for change of residence, a court must consider and
address the requirements of MCL 722.31. Where a change of residence will effect
a change in the children’s custodial environment, the court must also conduct a
best interest analysis under MCL 722.23.
Recall that a
custodial environment 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. [MCL 722.27(1)(c).]
This Court has
noted that a parenting time schedule following a change in residence need not be
equal to the prior schedule in all respects, and that even an established
custodial environment with both parents can be left undisturbed following a
move,
Other
move-away cases you may want to review are:
Brown v Loveman,
260 Mich App
576, 590-591; 680 NW2d 432 (2004).
Mogle v
Scriver,
241 Mich App 192, 197; 614 NW2d 696 (2000).
Read more:
Can a Child Ever Choose Which Parent She Wants to Live With?
_____________________________
Smoking in Car with
Children: Pending Legislation (November 8, 2005)
As reported by
the Associated Press on November 7, 2005: Rep. John Moolenaar will formally
introduce proposed legislation on November 8 that would allow police officers to
pull over and issue a civil infraction citation to drivers who are smoking with
a person under the age of 18 in the car.
Information on
Rep. Moolenaar’s website links to recent studies that show that secondhand
smoke causes lung cancer in adult nonsmokers and impairs the respiratory health
of children.
According to
studies done by the U.S. Environmental Protection Agency, an estimated 150,000
to 300,000 children under 18 months of age get pneumonia or bronchitis every
year from breathing secondhand tobacco smoke. For more information, see
Setting the Record Straight: Secondhand Smoke is a Preventable Health Risk
on the
www.tobacco.org website.
_____________________________
Should Family Courts
Restrict Exposure of Children to Second Hand Smoke? (November 4, 2005)
There
has been an ongoing discussion in the past week on the Michigan Family Law
Section's Listserv about whether family courts have the authority to tell
parents that they cannot smoke around their children; whether custody and parent
time decisions can be made on the basis of exposure to ETS; and whether court
orders that restrict the exposure of children to second hand smoke -- either
from the custodial parent or from a second wife or husband or a
boyfriend/girlfriend are lawful.
There
is no question that second hand smoke is harmful to children (and others) and
that it is especially harmful to children with lung diseases such as asthma.
Lawyers and parents who seek to limit the exposure of children to second hand
smoke will find authoritative support in the following:
Children and the Harm from Exposure to Second Hand Smoke:
The
1994 U.S. Surgeon General's report states that second-hand smoke harms children.
Children who breathe second-hand smoke have more ear infections, more severe
asthma attacks and more breathing problems than children who live in smoke-free
homes. Footnote 1 Where tobacco use is allowed, children often have no way of
protecting themselves from exposure to second-hand smoke.
The
1994 Surgeon General `s report also discusses the increased neonatal and infant
mortality rates for children whose parents smoke. The pathological arterial
change which causes atherosclerosis has also been observed in the umbilical
arteries of infants born not only to mothers who smoke, but also to mothers who
have been exposed to second-hand smoke. Footnote 2
Paternal as well as maternal smoking is associated with low infant birth weight.
Parental smoking is also a significant risk factor for postnatal deaths,
especially due to respiratory disease and sudden infant death syndrome (SIDS).
Footnote 3
There
is sound evidence that exposure to second-hand smoke in childhood is associated
with an increased probability of developing asthma among certain at-risk
children, and suggestive evidence that children who are not at risk and are
exposed to second-hand smoke may have a higher-than-average risk of developing
asthma. For asthmatic children, second-hand smoke has a causal role in
asthmatic-related morbidity. Exposure to second-hand smoke represents a serious
pediatric problem which has been estimated to double the risk of infection and
death in children. Footnote 4 Children must be protected from the adverse health
hazards of involuntary exposure to second-hand smoke.
Do
Courts have the right to Regulate Exposure of Children to Second-hand Smoke?
One
important question is whether Courts have the authority to regulate, by Court
Order, the child’s exposure to second-hand smoke. Several State Courts have
dealt with that issue. Although no Michigan Court has yet dealt with it, the
following state court decisions in sister states may give attorneys some
assistance in persuading a Michigan Court to regulate a child’s exposure to
second-hand smoke. After summarizing these decisions, I have then included some
reliable resources – primarily from the CDC and the American Lung Association –
that will help attorneys and parents to argue for the proposition that the Court
should protect children from second-hand smoke.
Harmful Effects of Second-hand Smoke / Custody and Parenting Time Decisions by
State Courts
Disagreements between parents who are divorcing can, of course, cover a wide
variety of subjects. One of the issues that has increasingly become a
significant subject of disputes that have ended up before a judge in family
court has been the exposure to ETS on the part of a child or children caught up
in a recorded cases in at least 20 states (Sweda 1998).
In re
Wilk v. Wilk, 781 S.W.2d 217 (Mo. App. 1989).
The trial court in this case granted primary custody of the children to the
mother, who had been advised by a doctor that the children, one of whom was
asthmatic, should not be taken to the father’s home because he smoked. The
Missouri Court of Appeals ruled that the trial court did not err in awarding
custody of the minor children to the mother.
In
re Aubuchon, 913 P.2d 221 (Kan. Ct. App. Mar. 22, 1996).
In this case from Kansas, an ex-wife with custody sought permission to move with
her children to another state; the ex-husband responded with a motion to obtain
custody. The district court did make the change by awarding custody to the
ex-husband after finding that the ex-wife’s smoking had harmed the children.
The
ex-wife appealed, arguing that there had been no evidence to prove that her
smoking had caused her children’s health problems. The court of appeals affirmed
the district court’s change of custody, noting that there was evidence that her
smoking had harmed the children: “That finding is supported by the testimony of
three doctors that second-hand smoke aggravated the children’s health problems
and placed them at risk for further health problems”
Helm v. Helm
(01-A-01-9209-CH00365), 1993 WL 21983 (Tenn. App. Feb. 3, 1993): In this case,
the smoking issue was not sufficient to produce a change of custody. [But Note
that this decision is prior to the recent research and reports from the CDC].
Here, the trial court awarded custody of a five-year-old child to the father.
The mother appealed the divorce decree, arguing before the Court of Appeals of
Tennessee that the father smoked around the child. The court said that “Other
than exposure to violent movies and cigarette smoke, no evidence is cited that
the father has neglected or mistreated the child” (p. 2). The trial court’s
judgment was affirmed, with the mother being accorded visitation rights.
Baggett v. Sutherland,
No. CA 88-224, 1989 WL 5399 (Ark. App. Jan. 25, 1989): A nonsmoking father
attempted to obtain a change in custody on the basis of, among other things, the
fact that the mother smoked in the presence of children who were allergic to
smoke. Although the lower court had found that circumstances were not so changed
as to warrant a change in custody, it did acknowledge that smoking was
detrimental to the children. The mother was forbidden to smoke in the home or
allow anyone else to smoke in the home; the judge “made it clear that he would
exercise continuing jurisdiction over the parties to insure compliance with that
order” (p. 3).
Johnita M.D. v David D.D.,
191 Misc 2d 301, 740 NYS 2d 811 (NY Sup 03/20/2002): This case was interesting
in that it was brought by a 13-year-old child seeking relief from Exposure to
Second hand smoke (ETS). The Court held as follows, after considering a varied
amount of research statistics and articles, and taking judicial notice of their
content:
If the
Court does take judicial notice of these facts and articles, it will hold it is
in the best interest of the child that the Defendant and the Plaintiff should be
ordered not to smoke or allow smoking of any type either at home or in the car
at any time so that Nicholas may occupy both free of ETS exposure or risks.
Nicholas' exposure to ETS based on his description and his mother's acknowledged
smoking habit is unacceptable in any parental residence or vehicle or other
indoor situations. The Court will find any avoidable exposure of Nicholas to ETS
is unacceptable because said exposure will place him both presently and in the
future as an adult at increased risk to develop asthma, reduced lung function,
coronary artery disease, lung cancer, and respiratory disorders.
[U]
In re Proceeding for Custody Under Article 6 of the Family Court Act
(N.Y.Fam. Ct. 12/23/2004) 2004 NY Slip Op 51784(U): The issues revolved around
Mother’s chronic smoking (as well as that of BF) around children with “chest
congestion,” her denial of parenting time, and the fact that she let the
children watch R-rated movies. The NY Court summarized NY decisions dealing with
a court’s authority to restrict second-hand smoke, saying:
“It
has been held in this state that cigarette smoking as well as marijuana use,
even on occasion, may be one of the elements considered by the Court when
determining custody. In Roofeh v Roofeh, 138 Misc 2d 889 (Sup. Ct. Nass.
Cty, 1988), the Court ordered the Mother not to smoke in the children’s presence
and only to smoke in one particular room in the home. In Lizzio v Lizzio,
162 Misc 2d 701 (Fam. Ct, Fulton Cty, 1994), the Court forbade the offending
parent from smoking tobacco anywhere in the household. This was modified sub
nom Lizzio v Jackson, 226 AD2d 760 (3d Dept 1996), in which the Appellate
Court held that smoking alone is not sufficient to change custody where the
mother and her current husband both smoked in the children’s presence. The Court
ordered them to smoke only on the back porch or outside of the house. Similar
decisions were rendered in Breitung v Trask, 279 AD2d 677 (3d Dept 2001)
and Holden v Tillotson, 277 AD2d 735 (3d Dept 2000). See also
Bjorkland v Eastman, 279 AD2d 908 (3d Dept 2001).
In
Johnita M.D. v David D.D., 191 Misc 2d 301 (NY Sup. Ct., 2002), (later
proceeding sub nom DeMatteo v DeMatteo, 194 Misc 2d 640 (NY Sup Ct 2002))
the Court stated that the mother's addiction to smoking, which may result in her
developing lung cancer, does not outweigh the Court's duty to protect a child.
That Court prohibited both parties from smoking or allowing others to smoke at
any time in their home or in their automobile, due to the presence of the
children, even if the children were not physically present during the time of
any smoking incidents. The Court further stated unequivocally that secondhand
smoke causes lung cancer and could very well do so in the children.”
The NY
Court affirmed the Trial Court’s award of custody to the father and in its order
restricted the children’s exposure to second-hand smoke ordering:
ORDERED,
that the Mother shall not smoke within her home or any automobile within which
the children may be transported, for at least 24 hours prior to visitation (see
DeMatteo v DeMatteo, supra), and the Mother shall not allow any other
person, including, but not limited to her husband, and M., to smoke within the
house or any automobile within which the children may be transported for at
least 24 hours prior to visitation. THIS PROVISION OF THIS COURT ORDER IS
INTENDED TO PROVIDE THAT THE CHILDREN MAY BE IN A SMOKE-FREE ENVIRONMENT AND NOT
SUBJECT TO RESIDUAL OR SECOND-HAND SMOKE
Day
v. Day,
2005 -Ohio- 4343 Case No. 04 COA 74 , (Ohio App. Dist.5 08/22/2005). In this
Ohio case, similarly, the reviewing Court had no problem with affirming the
trial court’s decision as to custody and parenting time that, in part, relied
upon a finding that the children’s exposure to second-hand smoke posed a health
problem. The Court stated:
In her
Second Assignment of Error, appellant argues the trial court erred in placing
restrictions on the children’s exposure to cigarette smoke. We disagree.
The challenged
provision is as follows: "Lisa L. Day-Carter shall not smoke in the presence of
the children, or otherwise expose them to second-hand smoke." Magistrate's
Decision at 3. Appellant herein seems to mount a constitutional challenge to the
trial court's order banning appellant from exposing the children to cigarette
smoke, but her brief fails to develop a cognizable legal theory in support. We
note R.C. 3109.04(F)(1)(e) requires a court to consider "[t]he mental and
physical health of all persons involved in the situation" in making a
best-interest determination. Furthermore, "[a]n avalanche of authoritative
scientific studies * * * is clear and convincing evidence that secondhand smoke
constitutes a real and substantial danger to children because it causes and
aggravates serious diseases in children, which danger is both a 'relevant
factor' and a 'physical health factor' that a family court is mandated to
consider under the statute." In re Julie Anne, 121 Ohio Misc.2d 20, 43,
2002-Ohio-4489. See, also, Unger v. Unger (1994), 274 N.J. Super. 532, 538, 644
A.2d 691 (holding that " * * * the fact that a parent smokes cigarettes is a
permissible parental habit to consider when determining what is in the best
interests of the children because it may affect their health and safety.") The
Ohio Supreme Court has additionally recognized that " * * * the Surgeon General,
as well as other health agencies, has concluded that secondhand smoke impairs
the respiratory health of thousands of young children." D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 263, 2002-Ohio-4172.
Decisions on child custody and visitation lie within the trial court's sound
discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178; Trickey
v. Trickey (1952), 158 Ohio St. 9, 106 N.E.2d 772. Upon review of the record, we
are unpersuaded the trial court abused its discretion in crafting a provision to
protect the parties' children from secondhand smoke. We state this holding with
the understanding that the trial court will reasonably interpret this provision
to avoid frivolous contempt proceedings for inadvertent exposure to public
secondhand smoke.
Rulings in other cases have been the product of compromise.
See,
e.g., Northcutt v. Northcutt, a 1997 case, a nonsmoking father objected
to ETS around his 2-year-old son, who has asthma and has had repeated
respiratory infections, bronchitis, allergies, and earaches (Sweda 1998). As
part of a joint custody agreement, a Warren County, Tennessee, judge ordered the
mother to keep her son away from ETS. Each parent was to have custody for six
months per year.
SCIENTIFIC RESEARCH TO SUPPORT POSITION THAT CHILDREN SHOULD NOT BE EXPOSED TO
SECOND-HAND SMOKE:
I
found valuable information about the harmful effects of smoking, and of
breathing second-hand smoke in the following publication: I. U.S. Department of
Health and Human Services.
Reducing Tobacco Use: A Report of the Surgeon General. Atlanta, Georgia:
U.S. Department of Health and Human Services, Centers for Disease Control and
Prevention, National Center for Chronic Disease Prevention and Health Promotion,
Office on Smoking and Health, 2000. II. From the CDC:
Secondhand Smoke and Children
What's the Problem?
Children who
breathe secondhand smoke are more likely to suffer from pneumonia, bronchitis,
and other lung diseases, as well as more asthma attacks and ear infections.
Who's at Risk?
Twenty-seven
percent of children aged 6 years and under live in a household where someone
smokes inside the house at least 4 days per week.
Secondhand smoke is linked to many illnesses, including between 700,000 and 1.6
million physician office visits for middle ear infections in children each year.
It causes and worsens asthma as well as acute respiratory infections such as
bronchitis and pneumonia and contributes to 500,000 physician visits by
children.
In
addition, smoking during pregnancy can cause miscarriage, low birth weight,
premature delivery, respiratory problems in newborns and Sudden Infant Death
Syndrome. Many people are unaware that smoke from cigarettes, pipes, and cigars
is toxic to the developing fetus. A child who has had this type of exposure may
experience long-term consequences.
III.
From the American Lung Association:
Secondhand Smoke Fact Sheet [November 2004]
Secondhand smoke is especially harmful to young children. Secondhand smoke is
responsible for between 150,000 and 300,000 lower respiratory tract infections
in infants and children under 18 months of age, resulting in between 7,500 and
15,000 hospitalizations each year, and causes 1,900 to 2,700 sudden infant death
syndrome (SIDS) deaths in the United States annually, citing California
Environmental Protection Agency. Health Effects of Exposure to Environmental
Tobacco Smoke. September 1997.
Secondhand smoke exposure may cause buildup of fluid in the middle ear,
resulting in 700,000 to 1.6 million physician office visits per year. Secondhand
smoke can also aggravate symptoms in 200,000 to 1,000,000 children with asthma.
Id.
In the
United States, 21 million, or 35 percent of, children live in homes where
residents or visitors smoke in the home on a regular basis, citing Schuster,MA,
Franke T, Pham CB. Smoking Patterns of Household Members and Visitors in Homes
with Children in United States. Archives of Pediatric Adolescent Medicine. Vol.
156, 2002: 1094-1100.
Approximately 50-75 percent of children in the United States have detectable
levels of cotinine, the breakdown product of nicotine in the blood. Citing
U.S.Environmental Protection Agency. America's Children and the Environment:
Measures of Contaminants, Body Burdens, and Illnesses. Second Edition. February
2003
Footnotes.
[1]
U.S. Department of Health and Human Services. Preventing tobacco use among young
people: A report of the Surgeon General. U.S. Department of Health and Human
Services, Public Health Service, Centres for Disease Control and Prevention,
International Centre for Chronic Disease Prevention and Health Promotion, Office
on Smoking and Health, 1994.
[2]
U.S. Department of Health and Human Services, 1994. Ibid.
[3]
Klonoff-Cohen HS. The effect of passive smoke and tobacco exposure through
breast milk on sudden infant death syndrome. Journal of the American Medical
Association , March 8, 1995:273;795-798.
[4]
Gridding SS, et al. Active and Passive Tobacco Exposure: A serious pediatric
health problem: A statement from the committee on atherosclerosis and
hypertension in children, council on cardiovascular disease in the young,
American Heart Association. Circulation , November, 1994:90(5);2581-2590.
_____________________________
Should a trial court
restrict overnight guests of the opposite sex? (October 28, 2005)
On
October 27, 2005, in an unpublished opinion, the Michigan Court of Appeals
affirmed a lower court decision that the father (non-custodial parent) could not
have his co-habiting girlfriend stay overnight during his parenting time.
Muller v Muller, Docket No. 259271, arising in the Oakland County Circuit
Court, Family Division.
First,
the Court said that "The social policy of the state of Michigan is established
by the Legislature, not the courts, and we note that MCL 750.335 prohibits lewd
and lascivious cohabitation1. The Legislature has not repealed this statute."
Since only the mother had argued against cohabitation, and the father had
expressed no opinion about whether it was in the best interests of the children,
the COA said it was reasonable for the court to honor her request.
Next,
the Court addressed the father's argument that the court was interfering with
his free exercise of his religion.
The
father argued that the court order unconstitutionally interfered with his First
Amendment right to freedom of religion by forcing the mother's moral values upon
him.
The
COA rejected that contention saying that neither party had presented evidence on
the issue of their religious beliefs.
_____________________________
Child Support in
Paternity Actions (October 14, 2005)
In
McLaren v Miller, Docket No. 260868 Decided on October 13, 2005, the
Michigan Court of Appeals ruled that the amendment to Michigan’s Paternity Act,
effective on October 1, 2004. operated prospectively only. Because the mother’s
two complaints for paternity were filed prior to October 1, 2004, she was
entitled to child support as prescribed under the former statute, retroactive to
the date of birth of the children, not child support commencing only at the date
of filing of the complaint.
The specific
facts of this case are as follows:
May 25, 2004:
Mother filed a complaint against defendant seeking child support for her
daughter, who was born on April 29, 2002. She alleged that he is the child’s
biological father, and he admitted paternity in his answer.
July 8, 2004:
Father filed a petition to establish custodial rights and a parenting time
schedule with respect to the child.
August 24,
2004:
Mother gave birth to a boy.
September 20,
2004:
Mother filed a paternity complaint against Father regarding the boy. This case
was assigned a separate case number.
September 21,
2004:
An order of filiation was entered establishing defendant as the girl child’s
father.
October 1,
2004:
The amended language of MCL
722.717(2)
that had been enacted pursuant to 2004 PA 2009 became effective. This language
limits a father’s liability for child support to the date of filing of a
complaint, rather than to the date of birth of the child, except for three
exceptions that don’t apply to this case.
November 1,
2004:
An order of filiation was entered establishing defendant as the boy child’s
father.
November 17,
2004:
Consolidating a hearing on both cases, the trial court considered the issue
regarding child support and whether the amendment of MCL 722.717(2) was
retroactive to the time the actions were filed.
The trial
court ruled that the child support would be retroactive to the children's birth,
and that the amendment to the Paternity Act did not apply retroactively to limit
her to child support only as of the date of filing of her complaints. The Court
of Appeals affirmed its decision, stating:
[W]e conclude that because
both complaints were filed prior to the effective date of the 2004 amendment,
and because the amended statutory scheme significantly impacts both children’s
substantive right to support by altering the extent of any potential award, and
given that there is no express indication in the statutory language that the
2004 amendment should apply retroactively, the amended scheme does not apply to
either child. In other words, because the 2004 amendment can significantly alter
the right to support by limiting the effective date for support to the filing of
the complaint, these claims, which arose under the prior statutory scheme, are
subject to the pre-amendment timing rules.
For more
information on parentage issues, you may read my collected articles on
here.
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Stepparents and
Deployments: What About the Children? (October 14, 2005
Deployments of military personnel can mean that various new task,
responsibilities and challenges are faced. To learn more about how stepparents
remaining at home can cope with ambiguity in legal authority and help their
stepchildren stay in touch with parents, read this article prepared by members
of the Stepfamily Association of America.
Advice for Stepparents When Their Spouse is Being Deployed.
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