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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An unpublished Michigan Court of Appeals opinion issued January 23, 2018, reviewed a custody award involving parental alienation and deviations from child support (Brian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.

US Supreme Court ruling further protects DV victims

On June 27, 2016, the US Supreme Court ruled in Voisine et al. v United States (579 U.S. __(2016), that a domestic assault committed recklessly constitutes a “misdemeanor crime of domestic violence,” as set forth in 18 U.S.C. §922(g)(9).  Because of this inclusion, anyone who is convicted of domestic violence based on reckless behavior, in addition to knowing or intentional behavior, is also prohibited from owning and possessing a firearm (pursuant to the same law).  This decision will eliminate possible exceptions that convicted abusers may try to use to get around the prohibition of owing a gun.


The two petitioners, Stephen Voisine and William Armstrong, pled guilty to misdemeanor domestic violence crimes in 2004 and 2008, respectively.  Both petitioners were convicted of their crime in Maine, and both did not end their trouble with the law after their assaults.  Voisine killed a bald eagle, which led police to uncover the fact that he owned a rifle.  Armstrong was later part of a narcotics investigation, and low and behold, he had not one or two, but six guns in his house, along with plenty of ammo. 


Due to the fact that both men had misdemeanor domestic violence convictions, they were charged with violating the firearms prohibition under §922(g)(9).  Being creative criminals, they decided to argue that their convictions “could have been based on reckless, rather than knowing or intentional, conduct.”  The lower courts rejected their claims, which the men appealed jointly (Birds of a feather…).


In United States v Castleman, 572 U.S.__ (2014), the Supreme Court had examined the meaning of “use of force” when the conviction was based on an intentional or knowing assault.  When Castleman was decided, the Supreme Court vacated the lower court’s judgments for both men, and required that the lower court take into account the new ruling in Castleman.  However, the Court of Appeals reached the same conclusion and would not overturn either conviction.


The Voisine ruling noted that “[n]othing in the word ‘use’…indicates that §922(g)(9) applies exclusively to knowing or intentional domestic assaults.”  If it did, considering that “two-thirds of such state laws extend to recklessness, construing §922(g)(9) to exclude crimes committed with that state of mind would substantially undermine the provision’s design.” 


Regardless of how one commits the assault, he or she is using force, which in turn subjects the abuser to the gun prohibition as set forth in §922(g)(9).  Voisine will provide further protection to victims of domestic violence by no longer putting guns in the hands of abusers.