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Family Law Archives

Putative Fathers May Gain Rights

Michigan's case law has consistently held that a putatively father does not have standing to bring a paternity action when a child is born to a woman who is married to another man from conception to the birth of the child. (Barnes v. Jeudevine 475 Mich. 69 (2006); Girard v. Wagenmaker, 437 Mich. 231(1991); Serafin v. Serafin, 401 Mich. 629(1977)). But on February 5, 2009, Senator Michelle A. McManus introduced legislation to deal with this issue (SB 0197). The bill would amend the Paternity Act (MCL 722.711) to allow a putative father to bring a paternity action under certain circumstances. The bill does the following:

Ability to Earn to be Considered in Award of Spousal Support

In the unpublished case of Jensen v Jensen, issued on July 8, 2010 (Docket No. 289698), the Court of Appeals held that a trial court erred when it failed to consider the defendant-wife's unearned income potential in awarding spousal support. In that case, the Plaintiff-husband worked between 65 and 70 hours a week with an employer who offered unlimited overtime. Defendant, a registered nurse, worked only 30 hours per week, despite the availability of full-time work. Ironically, wife cited husband's long hours as one of the reasons for the breakdown of the marriage, but then asked the trial court to utilize these hours and the income derived thereby, in calculating alimony.

Worker's Compensation Benefits Received During Marriage May Be Marital Property

In a per curium opinion by the Court of Appeals issued on July 13, 2010 (Cunningham v Cunningham, Docket No. 285541, for publication), the Court held that a worker's compensation award received during a marriage can be considered marital property.

Non-Modifiable Means Non-Modifiable

In the recently decided case of Rose v Rose (issued June 22, 2010 for publication), the Court of Appeals dealt a blow to litigants who were hoping that postjudgment financial insolvency might get them out of non-modifiable spousal support obligations. This case makes clear that no matter how dire the postjudgment situation, non-modifiable support obligations will not be set aside.

Ill-Behaved Parents Poor Examples at Sporting Events

Most parents try to teach their children how to behave in a civilized society, to "share" and to "be nice," yet those same parents toss the rules when they attend their own child's sporting events. According to an article posted on the AP Wednesday, April 7, more than 35 percent of adults worldwide have witnessed a parent become physically or verbally abusive toward a coach or official at a children's sporting event. In a survey of 22 countries, the United States ranked the highest (60%) for ill-behaved parents, with residents of India a close second (59%). Italy came third (55% -- were the pollers at a soccer event?), Argentina fifth (54%) and Canada 6th (53%).

Brazilian Grandparents Thwarted by Troxel

The grandparents of a boy brought from Brazil to his father's New Jersey residence after a five year international custody battle was denied the "right" to visitation with their grandson. Father had been enmeshed in a protracted custody battle with the mother, who had taken the child to her native Brazil in 2004. She divorced the father there and remarried (a lawyer no less).. After the mother died in 208, the abduction case received world-wide attention. Father repeatedly traveled to Brazil to visit his son, but was unable to bring him to the U.S. until after a U.s. Senator began traveling with him. Father denied visitation to the grandparents so he could have time to get to know his son. The boy is reported to be doing well at his new home and in school. The grandparents were miffed about father denying visitation and filed an emergency motion in court. The NJ court rightly found that the situation was not an "emergency," and ruled against them. Apparently counsel for the grandparents has never heard of Troxel. The entire AP story can be found here.

Parenting Time Calculator

The State of Oregon has created a parenting time worksheet that can help you figure the average time a child spends with each parent based on a parenting time agreement. Results may even be used to assist parties in calculating overnights for purposes of plugging the data into the child support formula.

Legislative Updates Friend of the Court

The Michigan Legislature passed some minor, yet significant changes to the Friend of the Court Act at the end of the year. These changes will impact practitioners and their clients. Within the Friend of the Court Act (MCL 552.502 et. seq) is a provision that requires a custody and/or parenting time investigation and recommendation if ordered by the court. MCL 552.502(1)(g). This section was amended effective January 8, 2010 to add that "If custody has been established by court order, the court shall order an investigation only if the court first finds that proper cause has been shown or that there has been a change of circumstances." (emphasis added). This is a significant change that reinforces, as a procedural matter, the edict set forth in Vodvarka v Grassmeyer. The Friend of the Court is now on notice that the court must first make a determination of proper cause or a change in circumstances before the Friend of the Court is released to conduct an investigation. This will change the way cases are handled in some counties, where sending parenting time and custody modification requests to the FOC for an investigation (especially if such motions were filed by unrepresented parties) were a matter of course. This may result in more petitions to modify custody being dismissed at the initial hearing. The change encompasses parenting time modification requests, as well, even though our Supreme Court has yet to issue a published decision on whether the Vodvarka standard applies to parenting time petitions that do not change the established custodial environment. Indeed, a recent unpublished case from the Court of Appeals implied that a court need not find proper cause or change of circumstance before hearing a petition to change parenting time when such a request did not result in a change of custody (See Ellsworth v Smith, published February 23, 2010)(holding that the trial court "conflated" the procedure for modifying parenting time with a request to change custody). The new procedural requirement set forth in MCL 552.505(1)(g) just may add more confusion to this issue for practitioners, and those seeking a parenting time modification for their clients would do well to be armed with this case and an argument for why the new requirement does not apply.

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