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Friday, May 31, 2013

The Burnett Case - a good summer read

If you want a drama filled read involving lawyers, dementia and a sex change, look no further than the recently published Court of Appeals Burnett case (with an absurdly long actual case name – In re Estate of Devon Pearl Burnett, Devon Pearl Burnett, by and through her Guardians, Joseph Buxbaum and Beryl Ellen Niles and her conservator and personal representative, Beryl Ellen Niles v Bobbie Eliza Burnett, Court of Appeals Docket No. 309640, April 16, 2013).

The Burnetts were married in the ‘80s in Ann Arbor and later moved to Pennsylvania.  One day Mrs. Burnett decided to visit her daughter, Beryl Niles, in Michigan and never came back (apparently the marriage was not so good at this point).

Mrs. Burnett’s kids became her guardians in her advanced age when dementia reared its ugly head, and they filed for divorce on her behalf.  Mr. Burnett was not at all pleased about this and filed motions for summary disposition, both of which he lost.  A divorce judgment was entered and he subsequently appealed. 

Mr. Burnett’s first motion seems to hold more merit – he contended that guardians and conservators had no legal right to file a divorce on behalf of an incapacitated individual, and therefore, the divorce complaint had to be dismissed.

Unfortunately for Mr. Burnett, this exact legal issue was already decided in the 2003 case Houghton v Keller, 256 Mich App 336, in which the Court of Appeals held that indeed an incapacitated person’s guardian could file a divorce on that person’s behalf.  To top it off, the Michigan Court Rules give guardians and conservators the legal right to do exactly what Mrs. Burnett’s children did, and file for divorce on her behalf.  This is why one should do his homework before filing pleadings.

The second motion filed by Mr. Burnett was a bit more of a stretch.  He was born a man but decided to undergo gender reassignment surgery and became a woman in 2003, well after the parties were married in 1984.  His argument was that since he was now considered a woman, and Michigan law doesn’t recognize same-sex marriages, their marriage was not valid so a divorce could not be granted.

On its face this argument seems to lack common sense, and to me it appears that grasping at straws is putting it mildly.  The Court of Appeals readily admitted that same-sex marriage is not recognized in Michigan, but here’s the obvious problem with Mr. Burnett’s argument – at the time the parties entered into the marriage contract in 1984, he was indeed a man and Mrs. Burnett was indeed a woman.  Voila, valid marriage contract which entitled her to a valid divorce years down the road, regardless of his gender at the present time.

My personal opinion was that Mr. Burnett did not have a great case from the start and it’s not surprising that he lost his arguments, albeit very interesting ones that make for a good read.  Interestingly, Mrs. Burnett died during the course of the case – making me wonder if Mr. Burnett believes in divine intervention.

Parenting Time Factors: Part Dos

This is the second part of a two part series.

Last month we examined the first five factors for parenting time that the courts should consider, outlined in the Michigan statute, MCL 722.27a(6)(a-i).  Now it’s time for the last four, but before I start, a quick comment on the fourth factor from the last article, “the reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”

I had explained this in terms of the abuse between the parents during the exchange of parenting time, but failed to mention that this factor can also involve the actions of a minor child.  Unfortunately, at times a child can be abusive to his or her parent, and while I’ve thankfully only seen this in a limited number of cases, it does happen.  This factor can relate to the abuse of a parent at the hands of a child or the other party, and both possible scenarios should be taken into consideration by the court.

Now, moving on to factor six, “Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.”  Is the schedule proposed or ordered something that mom or dad can actually exercise?  Work shifts, where one lives, the distance necessary to travel and other considerations are all things that can impact the reality of whether or not the parenting time schedule will actually function properly and allow the parent to see the child on those designated days and times.

The next factor is “Whether a parent has frequently failed to exercise reasonable parenting time.”  This is why I harp on my clients to make sure they utilize the parenting time schedule they presently have to the fullest, because it can come back to bite you if you don’t.  Obviously if you’re not using all the time you have now, what are the chances that a judge will increase your time in the future?  Not likely.  And if the motion is to reduce a parent’s time with his or her child, there’s a greater chance it will be granted if the parent isn’t complying with the current order.  So please dear parents, use your parenting time!

Have you ever thought that your ex will use parenting time to hide or keep the child from you?  That’s the subject of the next factor, “The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody.  A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.”

If your ex has ever used parenting time as a way to prevent you from having your child during your rightful time, has ever refused to give him or her back on time, or threatens any of this, it needs to be taken into consideration when modifying or establishing any parenting time schedule.  A lot of clients are fearful of this happening, and the person threatening this behavior will often stop after a stern talk from his or her attorney that this is not a good idea under any circumstance.  However, in a domestic violence situation, this is much more of a reality and all such comments and behavior need to be documented and reported quickly.

The final factor is what we call a “catch all,” in that you can include whatever else you think is relevant, as the statute literally states, “Any other relevant factors.”  People will toss in concerns with illegal behavior, abuse, moral issues and the like in an effort to prove their case in court.

The court will look at the Best Interest of the Child Factors, MCL 722.23, for parenting time also, but it is imperative to go through the various statutory parenting time factors when pleading your case to ensure that you have everything covered.  In doing so, you’re giving yourself the best chance possible at success.