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MPLP Winter 2008 Family Law Section Newsletter Article

                Issue 35, Winter 2008

 


Legal Updates

Amended Court Rule

MCR 2.107 was amended effective January 1, 2008.  The amendment to the rule allows parties to stipulate to agree to e-discovery or service of papers among the parties by e-mail.  Further, the amendment requires that court clerks note the date pleadings are filed if that date is different than the date the filing is docketed.

The amendment permits some of all parties to agree to service by e-mail by filing a stipulation in the case.  However, e-mail service is subject to several conditions, including:

·       The stipulation must include the e-mail addresses and for attorneys the address must be the same as currently on file with the State Bar.

·       The stipulation must include all limitations and conditions such as the document size, designation of exhibits, the obligation if any to furnish paper copies, and others designated to receive e-mail service on behalf of a party.

·       Documents must be in PDF format.

·       Provisions for signatures if requires.

·       A subject line that indentifies the case and document being sent.

·       An e-mail sent after 4:30 p.m. is deemed to be served the following business day.

·       A party may withdraw from the stipulation with 28 days notice.

·       Service is complete upon transmission.

·       The sender shall maintain an archived record of sent items.

The content of the amendment is available at
2007-12 – Amendment of Rule 2.107 of the Michigan Court Rules

Recent Court Decisions

·       Grandparent Visitation

Brinkley v Brinkley, ____ Mich App _____ (COA # 269725, 10/16/07)

Holding: The section of the grandparent visitation statute, MCL 722.27b(5), which requires the court to dismiss a petition for visitation when two fit parents jointly oppose it, does not unconstitutionally violate the grandparents' due process or equal protection rights.

Summary: The parents of two minor children were divorced in 1999.  The mother became estranged from the maternal grandparents and together with the children's father cut off contact.  The maternal grandparents filed a petition for grandparenting time under MCL 722.27b.  The trial court dismissed the petition because both parents signed an affidavit stating that they opposed an order for grandparenting time.

First, the court of appeals noted that grandparents have no fundamental right to grandparent visitation and therefore the statute only has to be rationally related to a legitimate government purpose.  Because a fundamental right is not implicated, the court found that this statutory provision is rationally related to the legitimate goal of encouraging grandparenting time without infringing on the parent’s fundamental right to raise their children.  The court also found that the statute did not deprive the grandparents of procedural due process by not giving them the opportunity to challenge the parents’ joint opposition to grandparenting time.  The statutory scheme to defer to parents’ preferences would be thwarted if grandparents were permitted to challenge the parent’s opposition.  Finally, the court found no equal protection violation by treating these grandparents differently from grandparents of children whose parents do not oppose visitation.  The court found a rational basis to distinguish between these classes of grandparents based on the parents’ fundamental right to make decisions concerning their children. 

Keenan v. Dawson, ____ Mich App ____ (COA #265725, 6/5/07)

Holding: The court rejected respondent Dawson’s argument that the grandparenting statute, MCL 722.27b, was unconstitutional, affirming the lower court’s decision, which found that the grandparents showed by a preponderance of evidence that the denial of grandparenting time did create a risk of substantial harm to the child. 

Summary: The trial court accepted the grandparents’ argument that since their grandchild’s mother had been murdered when he was 20 months old, and since the mother had been estranged from the father, they were in the position to teach him about his mother and keep her spirit alive for him and awarded them grandparenting time.  On appeal, the father argued that the statute was unconstitutional as applied to him, but the court found that this issue was not property preserved because defendant failed to present it in the trial court.  Defendant next argued that by failing to give deference to his decision to deny grandparent time the trial court violated his constitutional right to raise his child.  The court rejected this argument as well, finding that the trial court did not simply give “lip service” to the statutory presumption, but found that plaintiffs presented sufficient evidence to overcome the presumption. 

·       Parental Termination and Domestic Violence

In re Engle, minors (DHS v Engle), Unpublished, Docket no. 275064 (8/9/07)

Holding: The court reversed and remanded the trial court order terminating respondent-mother’s parental rights for, among other reasons, the court’s failure to consider the effect of domestic violence on mother’s ability to properly parent the children.

Summary: Respondent-mother’s children were sexually abused by their father over a period of time while respondent failed to investigate and to protect them.  Respondent argued that she waited so long to reveal the abuse because she was abused and controlled by her husband.  The evidence showed that respondent and the children were dominated by respondent’s husband and feared him and that he became incarcerated at the outset of this proceeding for his abuse.  In support of the court’s finding that a mistake was made in this case, it noted: CPS had very limited contact with respondent and failed to assess her ability to parent the children in the absence of the father’s abusive presence; the court failed to noted that respondent’s passive-dependent personality was partly caused by the abuse and she therefore required long-term therapy; the circumstances in respondent’s home had changed – her husband was incarcerated, they were divorced and respondent and the children were in therapy.  For these reasons the court concluded termination of respondent’s parental rights was contrary to the children’s best interests. 

·       Change of Domicile

Spires v Bergman, ____ Mich App ____ (COA #276722, 8/21/07)

Holding: Where a parent is awarded sole legal custody, MCL 722.31 (the 100-mile rule) does not apply and the court need not consider the change of domicile factors enumerated in MCL 722.31(4).

Summary: Plaintiff had sole legal and physical custody of her child, and defendant father had reasonable parenting time. The plaintiff filed a motion for permission to move with the child from Michigan to Texas, where she had greater family support.  Defendant responded asking for sole custody.  The court of appeals rejected defendant’s argument that the court must apply the D’Onofrio factors listed in the statute.  The court found that when the legislature codified the factors, it specifically exempted cases where the relocating parent had sole legal custody.  Further, the court found no legal authority to support defendant’s position that the trial court should have decided the change of motion first.  Even if it had, there was no evidence that the outcome would have been different.

Note: See also Rittershaus v Rittershaus, 273 Mich App 462 (2007), (the court must consider whether a change of domicile would result in a change of the established custodial environment, which would then require a best interest analysis).    

·       Personal Protection Orders

Bachand v. Wethmann, Unpublished, Docket #270161 (6/14/07)

Holding:  The trial court did not err when it entered a PPO under the stalking statute where a threat three years after the first showed a “continuity of purpose” because the second was a reminder of the first.

Summary: The court rejected respondent’s challenge to a personal protection order (PPO), concluding that there was sufficient evidence to establish that the two threats respondent made toward petitioner constituted “a continuity of purpose” for the purpose of establishing a  “course of conduct” as required under the anti-stalking PPO statute, MCL 600.2950a.  Respondent argued that his two threats towards petitioner did not establish a continuity of purpose because three years had passed between the first and second threats.  The court of appeals held that the lower court had not erred in finding a continuity of purpose because the second threat was a reminder and reiteration of the first threat and there is no requirement as to the distance in time between the two acts. The court further concluded that petitioner’s awareness of respondent’s arrest for a violent crime supported petitioner’s claim of emotional distress.

·       Paternity

People v. Nugent, ____ Mich App ____ (COA #267069, 7/3/07)

Holding: In an action to revoke defendant’s acknowledgement of parentage, a mistake of fact was shown based on defendant’s mistaken belief about paternity.  However, the case was remanded for the trial court to also consider the equities of the case before revoking the acknowledgement.

Summary: Defendant thought he was the biological father of a child and signed an acknowledgement of parentage.  DNA testing later determined that defendant’s son was the child’s father.   Although defendant signed the acknowledgement, the statute provides for a claim of revocation based on a mistake of fact.  MCL 722.1011.  The court of appeals found that the statute was satisfied based on defendant’s believe that he was the biological father at the time he signed the acknowledgement.  However, the statute also requires that revocation is proper considering the equities of the case.  The trial court failed to make such a determination and the case was remanded on that issue.

National Activity

Pending Federal Legislation

The National Domestic Violence Volunteer Attorney Network Act (S 1515) was recently introduced in the U.S. Senate.  According to the ABA, which strongly supports this bill, it would harness the skills and dedication of volunteer lawyers to provide desperately needed legal assistance to domestic violence survivors.  There are five components of the bill:

  1. Create a National Domestic Violence Volunteer Attorney Network to be managed by the American Bar Association Commission on Domestic Violence
  2. Connect domestic violence victims with legal assistance via the National Domestic Violence Hotline
  3. Create a pilot program and national rollout of the National Domestic Violence Volunteer Attorney Network and Referral Project
  4. Establish a Domestic Violence Legal Advisory Task Force
  5. Require the Government Accounting Office to study existing legal services available to battered women and report back to Congress within a year.

Jessica Gonzales v U.S., before the Inter-American Commission on Human Rights (10/5/07) 

Jessica Gonzales’ children were abducted and murdered by her husban.  She sued the police department on a failure to protect claim based on her protection order but lost before the U.S. Supreme Court.  The decision of this Commission holds that Ms. Lenahan (Gonzales) exhausted all domestic remedies (i.e. that she pursued every potential legal avenue available to her but had those doors closed to her). The decision also indicates that countries in the Americas, including the U.S., are responsible under the American Declaration on the Rights and Duties of Man for protecting victims of domestic violence from private acts of violence. This is the first time that the Commission has ever made such a pronouncement. This admissibility decision is the first phase of a two-step process before the Commission.  The next step is the merits phase, where the Commission will decide whether the US and the Castle Rock Police Department/Colorado violated Ms. Lenahan (Gonzales') and her children's human rights. (Specifically, the rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections).  

For more information on the Gonzales case, and to view the Commission's admissibility decision, go to http://www.cidh.org/annualrep/2007eng/USA1490.05eng.htm or http://www.aclu.org/womensrights/violence/32105lgl20071005.html

To view Ms. Gonzales' testimony before the Inter-American Commission in March 2007, see http://www.aclu.org/womensrights/violence/gonzalesvusa.html.  

 

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