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Tuesday, November 27, 2018

Clean the snow off of your car, or face being on Santa’s naughty list

Winter in Michigan sparks a plethora of interesting human behavior – people driving like they’ve never seen snow before, bundling up like you’re about to trek to the North Pole, and impatient people who decide that despite the two feet of snow covering their entire car, wipe off a mitten-sized spot in front of their steering wheel and hit the road.


Most of us find it annoying to have to stand out in the cold, scraping ice and snow off the car with whatever we find handy.  For most of us, there is a 50/50 chance that we will remember to toss the snow scraper in the back seat or trunk after Halloween.


Did you know, however, that if you fail to adequately remove the snow from your car before you start to drive, that you can be ticketed?  Michigan law, specifically 257.677a, reads: “(2) A person shall not remove, or cause to be removed, snow, ice, or slush onto or across a roadway or the shoulder of the roadway in a manner which obstructs the safety vision of the driver of a motor vehicle other than off-road vehicles. (3) A person shall not deposit, or cause to be deposited, snow, ice, or slush onto or across a roadway or the shoulder of the roadway in a manner which obstructs the safety vision of the driver of a motor vehicle. (4) A person shall not deposit, or cause to be deposited, snow, ice or slush on any roadway or highway.”


Michigan laws dealing with the ability to see your headlights, taillights and driver visibility also come in to play with respect to cleaning off your car.  If you do not clear off the mountain of snow, people are less likely to see your lights, and your headlights are less effective.  Other than some historical cars, you need to have a “device” (aka windshield wipers) for cleaning snow off of your windshield as well.  Snow can easily slide off of your car, covering your rear windshield while you are driving.  The snow can fly off of your vehicle and significantly obstruct other drivers’ visibility, as well as causing erratic driving and swerving to avoid the hit. 


So if you start throwing snow off of your car while driving down I94, smacking other drivers; or my personal favorite – the entire sheet of ice and snow that flies at you like a UFO – you are violating the law.  And Santa is watching very carefully this time of year.

New Bicycle Law Takes Effect

I often see signs and bumper stickers telling me to “Share the Road” and “Look Twice, Save a Life,” both of which are typically reminding drivers to look out for motorcycles on the road.  It’s not very often that I am blasted with advertising about good old fashioned pedal bicycle safety when I’m driving.  Sure, lots of places have designated bike lanes, but the awareness and safety aspect is far less when it comes to riding your Schwinn versus your Harley.


As of September 26 of this year, Michigan now has a three feet bicycle passing law, which requires drivers of vehicles to maintain a minimum of three feet of distance between their vehicle and the bicycle that they are passing on the road.  Specifically, the law reads:


The driver of a vehicle overtaking a bicycle proceeding in the same direction shall, when otherwise permitted by this section, pass at a distance of 3 feet to the right of that bicycle or, if it is impracticable to pass the bicycle at a distance of 3 feet to the right, at a safe distance to the right of that bicycle at a safe speed.  MI House Bill No. 4265.


I doubt many of us recall everything we learned when we first received our driver’s permit or license; my most tangible memory is that my instructor continuously ate sugar free mints (don’t worry, I have a good driving record anyways). Beginning in 2019, driver’s education will include at least an hour of instruction on pedestrian, motorcycle and bicycle laws in the state of Michigan.  Violations of the law are treated as civil infractions. 


According to the National Conference of State Legislatures, the vast majority of states have similar three feet passing laws for bicycles, although North Carolina allows two feet, while Pennsylvania provides for four feet of space.  South Dakota requires three feet if the speed limit is 35 mph or less, but it increases to six feet for roads that have speed limits over 35 mph.  Some states require you to completely change lanes if the road has two lanes in the same direction.


It may be hard to judge a distance of three feet when driving, and I plan on continuing to give bicyclists as much space as possible when passing.  Considering that I’ve got two children who love to ride their bicycles (streamers, bells and baskets included), I’m pretty happy the law is catching up to the safety of bicyclists on the road. 

No money, no problem in California criminal court

Starting October 1, 2019, the phrase “bail me out” will have less meaning in California criminal courts.  California Governor Jerry Brown recently signed a new law that eliminates cash bail requirements for individuals charged with a crime.  It is the first state to completely eliminate bail money.


The California Money Bail Reform Act is meant to even the playing field for individuals accused of a crime by taking money out of the equation.  We have all seen news reports of wealthy individuals being charged with a crime who easily post the bail requirements and are left to roam free until their court date (Ethan Couch, the “affluenza teen” comes to mind).  Meanwhile, those without financial resources are abandoned in jail until, and if, they can scrape up enough money for their release, whether through family and friends, or a bail bondsman.


The new system will focus on risk assessment rather than cash flow.  Pretrial assessment services will be formed, which could be done utilizing court employees or by contracting with an outside agency.  This group will lump offenders into three categories:  high risk, medium risk and low risk.  High risk is defined as someone who is “categorized as having a significant level of risk failure to appear in court as required or risk to public safety due to the commission of a new criminal offense while released on the current criminal offense.”  Thankfully, these individuals will not be released.


Medium risk individuals are those who have only a moderate level of risk, and low risk is reserved for those with a “minimal level” of risk, with respect to attending court hearings and public safety.  Low risk individuals must be released, while a medium risk person may be released or held in detention.  Review of the low and medium risk cases must be completed within 24 hours of booking, which can be extended to a maximum of 36 hours if good cause is demonstrated.


The review itself is comprised of three main parts:  1)  risk score/level, calculated by using a “validated risk assessment instrument;” 2)  the current criminal charge, and the person’s criminal history, which includes reviewing any failures to appear in court for the last three years; and 3) any additional information that addresses the risk to society or failing to appear in court.  An attempt to contact the victim of the crime will be made as well.


While there are exceptions, if you are charged with a misdemeanor, you “shall be released from custody without a risk assessment…within 12 hours of booking.”  Being released requires you to sign an agreement to appear as ordered by the court, to remain in the state, to waive extradition, obey laws and orders, and acknowledgment that you are aware of the consequences of violation of the agreement.


Time will tell if the system will truly improve the equity between the haves and the have nots in the state of California. After all, in the words of the late Notorious B.I.G., “mo money, mo problems.”

Planet Fitness gets K.O.’d at the Court of Appeals

While I don’t necessarily enjoy working out, I understand the importance of maintaining one’s physique and improving overall physical health.  Yvette Cormier joined the Planet Fitness gym in Midland, Michigan in 2015.  A month after joining, Yvette was surprised to see a transgender woman using the locker room designated for women.


Upset by the incident, she complained to management, who told her that members could use whichever facility they identified with.  While Yvette continued to use the gym after learning of the unwritten policy, she took it upon herself to “warn” other women about the situation.  Planet Fitness eventually terminated her membership a few days later.


Yvette sued, and the trial court sided with the gym, granting summary disposition in its favor.  The Michigan Court of Appeals affirmed the trial court’s ruling, but the Michigan Supreme Court vacated the Court of Appeals’ decision relative to Yvette’s claim of a Michigan Consumer Protection Act (MCPA) violation, and remanded the issue back to the Court of Appeals.


On July 26, 2018, the Court of Appeals issued its decision after remand, reversing itself and holding that Yvette “sufficiently sets forth claims of violation of the MCPA under MCL 445.903(1)(s), (bb), and (cc).”  See MI Court of Appeals, No. 331286.


The MCPA “ ‘prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.’ ”  In this case, Yvette argued that Planet Fitness advertised separate gender locker rooms and other facilities, all the while having an unwritten rule that a person could use whichever facility he or she self-identified with.  Moreover, she had no real way of knowing of this policy, and had she known, it would have impacted her decision to join Planet Fitness.


The Court of Appeals dismissed several of her allegations as failing to state a claim for violation; however, it concluded that Planet Fitness’ failure to disclose the unwritten “self-identification” policy was germane to Yvette’s agreement to become a gym member.  As evidenced by her actions, policies on which individuals were allowed to use the various locker and rest rooms were an important part of her decision to join the gym, and could affect other members as well.


The Court emphasized that even though Yvette still used the gym after learning of the policy, this did not void her claim.  The Court of Appeals reversed its previous ruling, and remanded the case for further proceedings.  Yvette may have won this round, but it remains to be seen who will prevail in the next match.

Unconventional will cuts mom out from inheritance

On July 17, 2018, the Michigan Court of Appeals upheld an unconventional will left by 21 year old Duane Horton II (See Michigan Court of Appeals Case No. 339737).  Duane committed suicide in 2015, but before doing so, he wrote in his journal one last time.  In the undated and handwritten entry, he referenced a note he had left on his cell phone.  He provided the password and email so that the note could be accessed.


On his cell phone, Duane had typed a will, detailing his belongings and the individuals he wished to inherit the items.  He specifically left out his mother, stating, “If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her.  Not my mother.” 


Duane already had a court-appointed conservator, Guardianship and Alternatives, Inc. (GAI), and it filed to be the personal representative of his estate.  Not surprisingly, Duane’s mother, Lanora Jones, also wanted to be the personal representative of her son’s estate.


The lower court in Berrien County determined that GAI had set forth “clear and convincing evidence” that Duane’s “electronic note was intended by decedent to constitute his will.”  Under MCL 700.2503, the probate court accepted the cell phone note as a valid will.


Duane’s mom appealed this ruling, arguing that the document could not be construed as a valid will under Michigan law.  She further believed that the lower court was incorrect in determining that GAI offered enough evidence to prove her son intended the document to be his will.


Michigan statute 700.2502 provides that a will must be in writing, signed by the testator (or by someone else at his direction and in his “conscious presence”) and witnessed by two individuals.  If all of these requirements are not met, it could still be considered a “holographic will,” so long as the document is dated, contains the testator’s signature and the meat and potatoes of the will are in his handwriting. 


MCL 700.2502 provides for exceptions to the requirements for a will – one of those is set forth in MCL 700.2503.  In part, MCL 700.2503 states that despite not complying with the formal statutory requirements of a will, a “document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:  (a) The decedent’s will….”


In Duane’s case, the Court of Appeals found it very clear that he wrote the document knowing it would be read after his death; he offered apologies and said goodbye to those he was leaving behind.  The distribution of his property was also explicit, describing who he wanted to leave certain items to, and in this case, who he did not intend to inherit his estate.


The Court of Appeals concluded that Duane and his mother had “at best, a strained relationship,” which supported his decision to not leave anything to her.  It upheld the lower court and affirmed that the cell phone note was indeed a valid will.  This was one case where a mother’s love (or lack thereof) was not forgotten.

No Labradors for able bodied litigants

Support animals are increasingly common – we see them on airplanes, at restaurants, schools, stores and even in courtrooms.  Several prosecutor’s offices in Michigan have therapy dogs, and the Troy Police Department recently adopted a “police cat.”  They definitely serve a purpose, as I’ve written in past articles, but the Michigan Court of Appeals recently drew a line as to their appropriateness in courtroom proceedings in a June 7, 2018 ruling.

In the case People of the State of Michigan v Dakota Lee Shorter, Michigan Court of Appeals number 338629, the court declined to follow its 2016 holding in People v Johnson, 315 Mich App 163, citing the numerous differences between Shorter’s case and that of defendant Johnson.  Both men were tried and convicted of sexual assault – Johnson’s victim was a six year old family member, and Shorter’s accuser was an adult female friend. 

In each case, the lower court allowed a support dog to accompany the complainants when testifying in court.  However, the court determined there was a “fundamental difference” between the two cases – one involved testimony given by a child, and the other was testimony of a grown adult.  Additionally, the dog’s handler was also present during Shorter’s trial, which required prior notice under MCL 600.2163a(4).

The Johnson court provided a plethora of cases across many jurisdictions which lent support to the appropriateness of a support animal for a child who was called to testify.  In those instances, the court believed that jurors could easily understand why a child would be nervous in a courtroom, and why a dog would be beneficial yet not prejudicial.  However, in the Shorter case, the court opined that “[w]ith a fully abled adult, a juror is far more likely to conclude that the reason for the support animal or support person is because the complainant was traumatized by the actions for which the defendant is charged.” 

The appeals court was also unable to find any case in the state of Michigan or nationwide, that allowed a support animal to accompany a non-disabled adult when testifying.  The complainant in Shorter’s case did not fit the definition of a person 16 years or older with a developmental disability, nor was she a vulnerable adult.  If she was either of these, the statute would have afforded her the opportunity for a support “person.”  Instead, the prosecution argued for the use of the dog because it had made the alleged victim less emotional during trial prep.

The court went so far as to determine that the use of the dog in Shorter’s case “undermined the reliability of the verdict,” and the error was not harmless.  Specifically, the court wrote that “it was particularly improper to allow a comfort dog to help the complainant ‘control her emotions’ while testifying.  If the adult complainant’s emotional state constitutes evidence of guilt, the jury is entitled to evaluate her emotional state uninfluenced by outside support…”  In this case, there was no DNA evidence and no witnesses, and the case hinged on the credibility of those involved.  The Court of Appeals reversed and remanded Shorter’s case for a new trial.

With the popularity of support/service animals on the rise, I expect to see more legal questions about the appropriate times and places that they can sit, and stay.

This Rose has a thorn for Veterans

Having just celebrated Memorial Day, I thought it was fitting to write an article on Veterans’ benefits.  In the US Supreme Court case Charlie Rose v Barbara Rose, 481 US 619 (1987), Charlie argued against his Veterans’ Administration (VA) benefits being used as income for his child support obligation.


A Tennessee Circuit Court held Charlie in contempt for failing to pay his child support.  Unlike many other parties who don’t pay support, Charlie was a completely disabled Veteran, and his VA benefits were his primary source of income.  The lower court determined that his VA benefits could be used for the purposes of child support.  Charlie disagreed, and appealed to the Tennessee Court of Appeals, which I’m sure to his dismay, upheld the lower court’s decision.  The case made its way up to the US Supreme Court, where Charlie lost once again.


Charlie’s argument was short and sweet – only the Veterans’ Administration had “exclusive jurisdiction to specify payments of child support from the disability benefits it provides.”    Federal law grants the VA discretionary authority to determine how a Veteran’s children are to receive disability monies; however, as opined by the US Supreme Court, this law “is not an exclusive grant of authority to the VA to order that child support be paid from disability benefits, and does not indicate that exercise of the VA’s discretion could yield independent child support determinations in conflict with existing state-court orders.”


If the law had meant for the VA’s decisions to usurp state statutes in this regard, the Court believed that it would have expressly provided for that power.  The state courts are the ones most familiar with handling child support cases, and it didn’t make sense for the VA to control what it had little knowledge of.


The Court noted that VA benefits are not just for the Veteran himself, but are for his family as well.  Most importantly, the Court ruled that “…although veterans’ disability benefits may be exempt from attachment while in the VA’s hands, once they are delivered to the veteran a state court can require that they be used to satisfy a court order.”


This is one case where the rose truly has a thorn for those receiving Veterans’ benefits.

From the baseball diamond to the love triangle

Money is often the most fought about issue in family law.  Personally, I find it easier to settle custody and parenting time cases because parties tend to be more flexible about those concerns.  It’s not uncommon to have an agreement on all issues but support, or to lose an entire agreement once support is factored in the equation.


In addition to support, plenty of parents fight about the “extras” – extracurricular expenses, extra money for clothes, extra money for school supplies, extra money for field trips, and extra money for vacations.  Some argue that those costs are essentially “built in” to child support, and the parent receiving support should never ask for these additional monies on top of support.  Others claim that support doesn’t encompass all of the growing costs to raise a child who participates in sports or other activities.  If you and your ex have an agreement on these types of costs, put it in a court order so that it’s actually enforceable by the court!


If you’ve ever felt that you’ve unfairly paid for some of these extras, imagine how Detroit Tigers’ player Miguel Cabrera is doing after his recent Florida court ruling.  Cabrera has two children, ages 2.5 and 5, with his former mistress, Belkis Rodriguez.  He has three children with his wife.  Prior to the paternity case commencing, Cabrera had been paying Rodriguez up to $20,000 a month in support, not including extras.


As is common in family law cases, the parties had to submit financial affidavits, which include information about your income and expenses.  No one would argue that Cabrera isn’t pulling down big bucks with his yearly $30 million salary, and the judge presiding over the case, Alan Apte, issued a temporary order for monthly child support in the amount of $12,247.  That’s a pretty hefty sum, but I’ve seen higher orders for support with parties that earn less than $30 million. 


However, in addition to the monthly child support, Cabrera also has to pay for a lot of “extras.”  There are the normal things one would think of – health care, daycare, sports, extracurricular activities, and mom’s bills, but what do you think of these:  $300 per month for children’s clothes, and an additional $300 for entertainment, $100 per month for gifts for the kiddos, and an extra $100 for gifts that the kids want to buy for friends or teachers.  Oh, and $80,000 for mom’s attorney fees.


But my personal favorite is that Cabrera must pay for the most exclusive, no limitations annual passes for both kids to the following places:  Walt Disney World, Sea World, Busch Gardens, Universal Orlando Resort, and Orlando Science Center (this last one is a family membership).

The judge still hasn’t decided if he will award a monthly vacation stipend, and mom is reportedly asking for $100,000 a month in support. She believes that the children of his marriage and the children of his affair should be treated equally in terms of finances.  Frankly, she has a point.


With the case being so publicized, neither party is likely to back down from their position.  When the case is finally over, Cabrera may be left wishing that he had stayed on the baseball diamond, instead of starting a love triangle.

Did you know...child support?

When I’m holding a hearing, or helping walk-in clients at the FOC, I’ve noticed that some information I provide comes as a surprise to them.  So, I have put together a list of “did you knows” to better educate those utilizing the Friend of the Court child support system.


Did you know that the FOC is not the entity that automatically starts your support case?  The Office of Child Support (OCS) and the family division of your county’s prosecutor commence the proceedings.  Of course, you can file on your own or via an attorney as well.


Did you know that the FOC has temporary payment coupons so you can pay your child support obligation before the income withholding order (IWO) is processed with your employer?  This is particularly important to prevent an accumulation of arrears – you can mail your payments directly to the Michigan State Disbursement Unit using the payment coupon.  The amount will then be credited to your account before the IWO is effective.  It can take an average of four to six weeks for the IWO to start pulling support out of your paycheck, so staying on top of it will help everyone out in the long run.


Did you know that you can choose how you are paid support?  You can receive it via direct deposit into a bank or checking account, or added to a state provided debit card. 


Did you know that the payee of child support can issue you a direct credit for any support you have paid him or her directly?  Like everything else related to the law, there’s a form for that, and you can get it at the FOC.  Each county is different, but Washtenaw County has you fill out the form, sign it and if possible, have the payee sign too.  A case manager will verify the direct credit with the payee before modifying the account balance. 


This form can also be used to waive any arrears owed to the payee – we recognize that support may come in the form of diapers, wipes, new school clothes, etc., and if the payee wants to acknowledge receipt of those items in the form of a credit or waiver of money owed, she or he can do so. 


Did you know that if you have had over $2,500 in arrears at any point in the life of your case, a hold is issued on your passport?  Even if you reduce the arrears to zero, you still have to contact OCS/FOC and request that the hold be removed.


Did you know that there is an arrears forgiveness program relative to monies owed to the state of Michigan?  This program applies to the time period when the custodial parent was on cash assistance from the state.  Fill out the application and list your reasons for inability to pay this particular arrearage amount – common reasons are history of incarceration, inability to work, receiving SSI/SSD, currently receiving state assistance, custody has changed, etc.  Once the application is reviewed, you may be able to have this amount erased from your balance. 


Did you know that the FOC has a plethora of other free paperwork you may need to file motions or ask for assistance?  You can request packets such as motions regarding custody, parenting time, child support, parenting time assistance, request for show cause, various blank orders like uniform support orders, and the paperwork needed to answer any of the above motions.  We also provide suspension of fee affidavits – if you are unable to pay the filing fee, it’s possible that it can be waived.


The FOC is actually a great resource, despite the bad rap it is sometimes given.  Just ask your question, and you may be pleasantly surprised at the answer!

Wednesday, February 28, 2018

Bargaining Away Your Reproductive Rights

Bargaining is a regular occurrence in life, as negotiation and compromise are crucial to achieving acceptable outcomes.  We’ve all given something to get something in return.  For Summer Creel of Oklahoma, she gave up her reproductive rights in order to receive a reduced prison sentence.


Ms. Creel is a 34 year old mother of seven, who was convicted of using a counterfeit check at Walmart.  Not a stranger to the court system, Creel’s parental rights to six of her seven children have been terminated, and this certainly wasn’t her first arrest.  She has a long history of using crack cocaine and methamphetamine, and tested positive for methamphetamine as recent as December 2017.


U.S. District Judge Stephen Friot noted that Creel’s drug abuse corresponded with when she was pregnant, stating that “with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel’s children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances.”


Creel was facing up to 10 years in federal prison for the counterfeit check crime, but Judge Friot came up with what he believed was a win-win.  If Creel agreed to be medically sterilized, thereby preventing the chance that she would become pregnant in the future, he would reduce her sentence.


Both the Assistant US Attorney and Creel’s defense attorney agreed that she was interested in being medically sterilized prior to the judge’s suggestion, and did so freely in November 2017.  Honoring his word, Friot sentenced Creel to one year in federal prison and three years of supervised release.  She also has to pay over $15,000 in restitution. 


The fact that a judge would even suggest a defendant be sterilized has created significant controversy, with some saying the suggestion never would have happened if the defendant was a man.  Friot has defended his behavior, arguing that the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."  I guess that is all the justification the court needed.

Tuesday, February 20, 2018

Parental Alienation: A Jackson County Case Study

An unpublished Michigan Court of Appeals opinion issued January 23, 2018, reviewed a custody award involving parental alienation and deviations from child support (Brian Harner v Kayla Harner, Court of Appeals Case No. 338746).  The case hails from my old stomping grounds of Jackson County. 


The divorce trial, which lasted for four days over a span of seven months, involved three minor children, all of whom had a certain aspect of Autism.  While the parties had agreed on joint custody during the divorce, it was the main argument at trial.  Practically from the word “go,” mom started interfering with dad’s parenting time – repeatedly calling the children when they were with their dad, sending police to conduct numerous welfare checks, and accusing dad of neglect and abuse.  She also sought a personal protection order.  As the Court of Appeals put it, “[t]he claims escalated over time to include allegations of sexual abuse, which became more disturbing with each retelling.” 


A plethora of Child Protective Services (CPS) cases were opened and closed as unsubstantiated, and three criminal investigations were conducted.  The only CPS exception was that dad had threatened mom with the children present.  As is common with CPS involvement, dad had been unable to exercise his parenting time, which further distanced the children from him and damaged their relationship. 


Police, CPS, and two psychologists testified at the trial that the abuse allegations were seriously doubted, and instead pointed toward coaching of the children by their mother.  Mom had told one psychologist that she did not believe CPS and the police had done their jobs. 


The trial court held that for over one year, the mother “had engaged in acts that caused the unsubstantiated abuse claims against [dad] and resulted in the disruption of his parenting time.” (Citation from Court of Appeals opinion)  As such, the trial court granted sole physical and sole legal custody of the children to the father.  However, it recognized that due to the parental alienation that had occurred, reunification therapy was necessary. 


The Court of Appeals strongly sided with the trial court in its custody award to father, stating: 


There was evidence of numerous, ever-growing, increasingly-egregious, and highly-suspect claims of abuse by the children that were unsubstantiated and called into question by several witnesses, giving rise to a reasonable conclusion that no abuse occurred, along with a reasonable inference that the claims were attributable to conduct, coaching, and communications by [mother], which can be properly characterized as acts fostering parental alienation.  The implications drawn from the evidence are matters of common understanding.


In ordering child support, the trial court took note that dad had been paying $650.00 per month in support during the divorce, and ordered him to pay monthly for the reunification therapy up to the same amount of $650.00.  As this type of payment would be considered a deviation from the Michigan Child Support Formula, an examination of why the deviation from the formula recommended amount was necessary.  The Court of Appeals did find that due to the lack of an explanation relative to the deviation, the trial court had erred and remanded the case for this issue only.


In my opinion, this unpublished case provides two exceptional examples.  First, it serves as an excellent reminder to attorney referees and judges alike that when deviating from the child support formula, you need to specifically state and cite the reasons for the deviation.  Second, it sets forth specific examples of behavior by a parent that justify classifying that behavior as parental alienation.  Most importantly, the trial court’s ruling, and the Court of Appeal’s affirmation of that ruling, sets the example that this type of behavior cannot be tolerated, and will have consequences. 


As it stands, the children reside with the mother while undergoing reunification therapy to work toward a permanent placement with their dad.  Helping this fractured family heal will hopefully be a lifelong goal that both parents will strive for.

Penalty for 1st time MIP is reduced

All those under age 21 just received a late Christmas gift.  Beginning January 1, 2018, a first time minor in possession (MIP) of alcohol violation will only be a state civil infraction instead of a misdemeanor.  (See Public Acts of 2016, Act No. 357). 


Along with the civil infraction, the minor “shall be fined not more than $100.00” and may also have to participate in substance abuse services, community service, and/or be subjected to substance abuse tests and assessments, at his cost. 


If you’re willing to test fate more than once, a second violation is considered a misdemeanor.  On top of that, if you violated any previous conditions, it could land you up to 30 days in jail, and a $200.00 maximum fine.  The substance abuse treatment, testing and community service requirements are still in play as well.  After two or more convictions, you will have your driver’s license suspended.


Finally, if you believe you are truly impervious to harm, and continue to love your long island ice teas after two MIPs, you are again guilty of a misdemeanor, face a maximum of 60 days in the pokey and/or a $500.00 maximum fine.  At this point, if you haven’t already enrolled in a treatment program, the court may do this for you. 


Prior to this new law, courts across the state varied in how they treated those charged with MIPs.  Some were more lenient and required very little for the offender to have the charge dismissed, while others used all possible punishments available for a first time offense.  Proactive and preventative measures may or may not have been used, and the great variety in sentencing left many offenders not knowing their fate.


With the commencement of this law, it certainly levels the beer bong playing field.

In the dog house

Have you ever told someone something, and then had to explain that what you said wasn’t really what you meant?  Louisiana Defendant Warren Demesme knows that feeling all too well.


Two years ago, Demesme, who is accused of sexually assaulting two juveniles, waived his Miranda rights during two separate interviews with police.  During the second interview, Demesme stated “…if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” (Supreme Court of Louisiana, No. 2017-KK-0954, Louisiana Associate Supreme Court Justice Scott Crichton concurrence). 


I think many people would agree that Demesme was requesting an attorney, at which point the interrogation should have ended.  However, the Louisiana trial, appeals and supreme courts do not agree, and have ruled that Demesme merely “ambiguously referenced” an attorney, which per State v Payne, 2001-3196, p. 10 (La. 12/4/02), is not enough to stop the interview and provide the defendant with an attorney.  State v Payne held that “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.”


Demesme argued that he requested an attorney, and based on the alleged denial of same, he was seeking to suppress information told to one of the detectives, where he admitted to the sexual assault of one alleged victim, and denied the other.  The Louisiana courts are choosing to take his request literally, and believe that he asked for a lawyer dog (if anyone knows of a dog that is an actual lawyer, let me know). 


The courts have essentially determined that Demesme lost his argument due to his use of slang.  Many argue that this is a racial injustice based on the vernacular use of the word “dog,” as Demesme is African American.  Others believe that if the police had viewed the statement as having a comma between “lawyer” and “dog,” it would have been interpreted differently. 


Whatever the reason, it’s one of the most ridiculous rulings I’ve seen in a long time.  I mean, at minimum, Demesme should have at least been able to speak to McGruff the Crime Dog ®.

How to get the most out of the Friend of the Court – Part 2 of 2

Dealing with your Friend of the Court (FOC) may not be number one on your bucket list of life goals.  Hopefully these tips will help you achieve the best result in your FOC case.


The FOC provides both parenting time and child support enforcement.  If you were denied parenting time by the other parent, you may have recourse.  The first thing I look for in parenting time complaints is…wait for it…do you have an order that provides you with specific parenting time?  Meaning, is your parenting time detailed, and spelled out in a court order?  For example, it may say, “Father has parenting time every Tuesday, from 5:00 p.m. until 8:00 p.m., and every other weekend, from Friday at 5:00 p.m. until Monday at the commencement of school or 8:00 a.m. if there is no school.”  This amount of specificity in a court order allows me to properly address your complaint – if you are alleging that you were denied your parenting time last Tuesday, from 5:00 p.m. until 8:00 p.m., BAM, I have a court order telling me that yes, indeed, you did have parenting time that day.


This is why I emphasize to people who want to just agree on parenting time to have a minimum back-up schedule in the event that they cannot agree.  It’s amazing what a new boyfriend or girlfriend will do to the parents’ ability to get along.  If your order simply states “parenting time is as the parties agree,” or “at the Mother’s discretion,” this means you do not have specific parenting time.  This language is vague and does not entitle you to a particular day or time.  Even if you’ve been exercising parenting time specifically for the last two years, if your court order does not match what you’ve been doing, we can’t enforce it.  At that point, you would need to file a motion to ask for specific parenting time.  MCL 722.27a(8) provides for specific parenting time to be granted if either party requests it (of course, this is subject to the scrutiny of the best interest factors and other parenting time factors).


Be mindful of all time limits that exist when dealing with the FOC.  Your paperwork will state the time frame that you have to object to recommendations, or abatements of support.  You may only have so many days that you can request assistance on a parenting time denial before it’s too late and no enforcement action will be taken.  I adhere strictly to time limits – if I don’t, it’s a slippery slope to consider one person’s objection even though it’s nine days late.  The rules are there for a reason – you may not know them or be aware, but it’s your responsibility (whether you have an attorney or not) to make yourself aware of the deadlines. 


If you don’t turn in your paperwork on time for a child support review, and you are the petitioning party, your petition may be dismissed.  If you aren’t sure of the time frame, call and ask.

Speaking of paperwork, turn in all of your requested documents.  No one likes playing the guessing game, and that includes FOC employees.  Even if you are coming in for an appointment on parenting time, and you have no intention of changing child support, if you are asked to bring in financial information, please do it!  At minimum, this paperwork can remain in the FOC file, and if child support is an issue a year down the road, and we don’t hear from you then, we’ve got something to potentially provide us with your information. 


Be sure to tell us, just like you’d advise your doctor, if you move, your insurance changes, etc.  We do not want to make your life difficult (really we don’t).  Get ahead of any potential issues and be as cooperative as possible when asked for information.  My best advice in dealing with the FOC is to be proactive, not reactive. 

How to get the most out of the Friend of the Court – Part 1 of 2

Every Friend of the Court (FOC) is a little different, but overall the mission is the same – to look out for the best interests of the children in the court system.  I’m going to give some pointers on how you can get the most out of your FOC case managers and staff.


Most FOCs assign specified workers based on the last name of one of the parties – two common methods include assigning by the father’s last name or by the payer’s last name.  By doing this, it allows parties and staff to become familiar with each other.  One worker does not necessarily know EVERYTHING about your case file – they are highly trained in a specific area, but may have only general knowledge about a process that occurs in another department.  I would recommend that when your case is opened, ask for the names and contact information of the workers assigned to your case, in each department.  This will help you avoid a lot of transferred calls and “I’m not sure” answers to your questions.


Be patient with hold times on the phone – I know it’s frustrating, but the volume of cases the FOC handles each day is astounding.  Yelling will not change the wait time you already endured, nor will it solve your problem.  While the FOC is certainly no stranger to upset customers, no one likes to be personally attacked.


Have your case number, or at minimum, your Social Security number, available before you make the telephone call.  Your case number is pretty much the golden ticket for your worker to access your case quickly and correctly.  Write down your questions ahead of time and then write down the answers you are given, along with the worker’s name, date and time you spoke to him or her.  Too often people will say that they spoke to “us” or “a lady,” and if by chance the worker did not put a note in one of the various computer systems, we don’t know who you talked to.


Personally, I would recommend emailing FOC staff whenever possible – this provides us with a paper trail, which we can easily upload into our files.  By having the information written down, you can refer to it again and again if need be.  Some information cannot be given over email, and you may need to come down to the office.  If you appear in person, bring your state issued ID – whether a driver’s license or ID card.  We have to verify who you are in order to provide access to your files, or provide you with specific information.


I cannot stress how important this next piece of advice is – always keep your address and contact information up to date!  If you only take away one thing from this article, this should be it!  The FOC’s primary method of communication is mail.  Yes, we can send out postal verification requests, and sometimes the returned mail may provide information, but ultimately it is your responsibility to advise the FOC if any of your contact information changes.  I can’t tell you how many times I have heard “I never received that notice!” The answer to my follow up question “is this your current address?” is more often than not “no.”  We are obligated to send mail to your last known legal address on file, even if it’s a known incorrect address.    


If your address isn’t updated, you can miss very important appointments, court dates, and deadlines for objecting to various recommendations.  This can result in court orders being entered that you may not know about, and/or don’t agree with.  Trust me, you don’t want to be notified of an increase in your child support by having a much larger chunk come out of your paycheck one day.


My next article will continue my sage advice on managing your case with the FOC.