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Thursday, December 2, 2021

I want a Hippopotamus for Christmas

With the holidays approaching, Christmas music is being played just about everywhere you go.  Gayla Peevey sang “I want a Hippopotamus for Christmas” back in 1953, and may be happy to learn the US District Court in Cincinnati, Ohio, afforded drug lord Pablo Escobar’s hippos the legal recognition as interested persons or people.

The hippos were illegally imported by Escobar in the 1980s and lived on his ranch in Columbia, with a host of other animals. When he died a decade later, the four hippos were left on his property due to the difficulty in moving them.  Facing no threats, they reproduced at an alarming rate and now number close to 100.  They also apparently have no fear of people, and take frequent trips into town (presumably for shopping).

Because of their growth, they pose a threat to the area’s biodiversity, as well as humans.  The government began sterilizing some of the animals, and others are proponents of simply killing them. If you’re wondering how the US became involved in a Columbian lawsuit, the Animal Legal Defense Fund (ALDF) petitioned the US District Court to award “interested persons” status to the hippos so American experts could testify in the court case.  A federal law allows “anyone who is an ‘interested person’ in a foreign lawsuit to ask a federal court to permit them to take depositions in the US in support of their case.”

Previous attempts to award animals personhood in the US have been denied, but Judge Karen Litkovitz has changed that in granting the ALDF/hippos’ request.  Many of the arguments in support of the recognition make sense – animals already have various protections under the law and this allows for enforcement of these rights.  In addition, businesses have standing in court and they are not biologically “people.”

I don’t know what impact, if any, the US ruling will have in a Columbian court.  However, this case sets precedent for the future rights of other animals; in the past, similar cases for chimpanzees and elephants were denied.  Maybe the judge has a soft spot for hippos - like the song says, “only a hippopotamus will do.”

Thursday, November 4, 2021

Holiday Parenting Time

The stores have already hung light displays, set up Christmas trees and mailed out the yearly holiday toy catalogues.  Every year it seems the preparation starts earlier, and it’s not a bad idea to start your holiday parenting time preparation now too.  

Courts are inundated with motions and complaints relative to holiday parenting time, which for many families means a different schedule than what they regularly exercise throughout the year.  Holiday parenting time takes precedence over regular parenting time, meaning that if it’s Sally’s regular weekend time, but Tom’s Christmas Eve falls on her Saturday, Tom’s holiday “trumps” and he receives the Saturday. 

As much as we tell people to clearly spell out holiday parenting time in their court order, many still stick with “as the parties agree.”  This language cannot be enforced in court as it has no specificity. If the parties have a wonderful relationship, there isn’t anything to worry about; however, relationships change over time and not always for the better.  Putting in a default or back up schedule is the safest way to go – if you still have a good relationship, then you can exercise it as you agree, but if you have a disagreement, you have something to fall back on. 

Talk to your ex about holiday parenting time now, so if there is any confusion with your court order, you have time to resolve it.  If you don’t have a court order that contains specific holiday parenting time, you can try to work it out before Santa comes down the chimney.  If you are denied parenting time over the holidays, you can file a complaint with your Friend of the Court.  While any resolution can’t give you back the missed holiday, you can receive make-up parenting time. 

Something else I hear more often than I’d like is that parents withhold holiday gifts until “your mom/dad is fair about parenting time/custody/the color of the sky,” or “when my support is lowered, I can afford to buy you gifts.”  You are telling your child that their mom or dad is solely to blame for the child’s disappointment.  Behavior like this does not encourage a close parent-child relationship, and further deteriorates the chances of successful co-parenting.  Kids will share what you said with the other parent, which may be the goal for the parent who said it.  Explaining legal and adult concepts with children is often not possible and it should not be encouraged.  Your children should be worried about how many Pokemon© they are going to catch, not a court order. 

If your child receives a gift at the holidays and wants to take it to the other parent’s home, remember that it is the child’s gift, and give them the chance to show that they can be responsible with toys and belongings.  If you would let them take it to a friend’s house, they should be able to take it to the other parent’s home. 

The holidays are a time where good co-parenting skills are especially beneficial – be kind, flexible and understanding, or you might end up on the naughty list.

Friday, October 1, 2021

A Second Chance for Drunk Driving Offense

Depending on the nature of your conviction, Michigan allows for expungement, which legally erases the conviction from your record.  In the past, no one with a drunk driving offense was eligible.  Governor Gretchen Whitmer recently signed into law House Bills 4219 and 4220, changing this exception.  They both take effect February 19, 2022.

The Governor’s press release in late August estimated that 200,000 individuals who are non-repeat offenders, and have an operating while intoxicated (OWI) conviction, can apply for the expungement. For legal purposes, Michigan’s blood alcohol content, or BAC, remains at .08. The new laws also allow for expungement of the following convictions:  anyone who operated a vehicle while visibly impaired by alcohol or other controlled substance, an underage driver with a BAC of .02 or higher, and anyone operating a vehicle with “any bodily amount of cocaine or a Schedule 1 controlled substance.”

The applicant must wait five years after his or her probation ends before filing the petition. In considering the request to grant the expungement, the court can look at whether the person has participated in “rehabilitative or education programs, if any were ordered by the sentencing court, or whether such steps were taken by the petitioner before sentencing.” If the court does not think the individual benefited from the programs, or did not actually participate in any programs, the request can be denied.

Expunging a conviction can open many doors that were previously closed, including opportunities for jobs, schooling, and housing.  The Governor stressed that one-time offenders should not have to be forever burdened by a past mistake.

However, not everyone is happy with the new law.  Mothers Against Drunk Driving (MADD) believes that many individuals with first time convictions have driven drunk before. The conviction is not actually the first time they have committed the crime, it’s merely the first time they’ve been caught.  MADD requested that anyone who sought expungement be required to use a device for six months to prove they were sober while driving, but this was not included in the law.

The opportunity for a second chance will be celebrated by many in the judicial system and those convicted; hopefully those celebrations will be conducted responsibly.

Saturday, September 4, 2021

Covid-19 and Ivermectin: The courts weigh in

The COVID-19 pandemic has proven to be divisive across the world in several areas – health care, personal freedom, and of course, politics.  Relationships between vaccinated versus unvaccinated populations have become particularly tense, with each side holding their ground.  Treatments for COVID-19 vary, and like many illnesses, a mix of natural and traditional medicine has been experimented with.  

In our neighboring state of Ohio, Jeffrey Smith contracted COVID-19 mid-summer of 2021 and was placed on a ventilator. When Jeffrey’s condition began a steep decline, and the traditional treatments for COVID-19 failed, his wife Julie sought out Dr. Wagshul, who prescribed Ivermectin.  West Chester Hospital, however, refused to administer it as it is not recommended by the FDA or CDC for treatment of COVID-19.

Julie sued to compel the hospital to administer the medicine Ivermectin, which has historically been used to deworm livestock.  It has been used to treat humans in more recent years, for lice and parasitic illnesses.

While some believe Ivermectin is a valid option in the COVID-19 battle, the CDC has reported a large increase in Ivermectin poisoning among humans.  Some animal supply stores have sold out of the drug, and with most of the store doses being appropriate for animals, not humans, it’s easy to see why it can be toxic.  It’s gotten so out of hand that the US FDA’s Twitter account posted: “You are not a horse.  You are not a cow.  Seriously, y’all. Stop it.”  You really can’t be clearer than that.

Despite these warnings, the court sided with Julie, and issued an order requiring the hospital to administer Ivermectin to Jeffrey. The Smiths’ lawsuit is not the only one that has been filed to compel use of Ivermectin, with two wins for families in New York.  In Illinois, a court ruled against a wife seeking to use the drug for her husband. The increasing lawsuits show the lengths to which people are willing to go to treat COVID-19.

The Hippocratic Oath has changed over the years, but the constant principle is that the medical provider will act in the patient’s best interest.  When courts are mandated to weigh in, the relationship between personal autonomy and medical liability only deteriorates.

Thursday, August 5, 2021

Traveling back in time with retroactivity

Retroactivity is a hot topic at the Friend of the Court when it comes to paying support.  Merriam-Webster defines the word retroactive as “extending in scope or effect to a prior time or to conditions that existed or originated in the past, especially: made effective as of a date prior to enactment, promulgation, or imposition.”  When it comes to the payment of support, retroactivity is legally limited.  However, it can be done in cases where “there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support.”

For example, if mom files a petition to increase child support based on dad’s new job, support can be retroactive to the date that dad was given notice of mom’s petition to change support.  Generally, this is the date that mom or the Friend of the Court mailed the notice of review or petition to dad.

Based on realistic time frames for completion of the child support review, mailing it out to the parties, and waiting for the objection period to pass, months can go by before any objections are noticed up for hearing in front of a referee or judge.

Once the Friend of the Court is notified of the objection, another hearing is scheduled, generally with the referee, and this process can be delayed by scheduling conflicts.  There can unfortunately be months’ worth of retroactive application of support by time the matter is all said and done, since parties can object to what the referee recommends as well.  This creates a snowball effect, as arrearages pile up if the new amount is more than the previously paid monthly support.

When a payer has arrears of a certain amount on his or her account, enforcement measures can be taken, such as suspension of passports or licenses, and credit reporting.  Extra monies are withheld from the payer along with regular support to “catch up” the account, but in reality, it can take years to bring the account current.

On the flip side, if the new retroactive support amount reduces the monthly payment, a payer could end up with a credit.  In those cases, support is billed against the credit until it is exhausted. Clearly payers view retroactivity in a positive light in this scenario.

Regardless of the outcome, retroactivity emphasizes the importance of filing for a child support review as soon as you learn of your new circumstances.  While everyone is afforded a review every 36 months, either party can petition for one sooner if there has been a change in circumstances, like job gain or loss, increased or new daycare or health care costs, etc.  Since the reality is that months will go by before a resolution, preserving the retroactive date is extremely important.

Thursday, July 1, 2021

Supreme Court case gives students something to cheer about

We’ve all had those days (or months or years) where nothing seems to go right.  It’s hard to not vent about it, so you let some of your frustration loose on social media.  Depending on who can see your posts, this may or may not be a good idea.  For Pennsylvania teenager Brandi Levy, it was not a good idea.  However, she had the last laugh when the United States Supreme Court sided with her this June.

Brandi had tried out for her high school’s varsity cheerleading squad, as well as a non-school affiliated softball team.  She was 14 years old at the time, which we all recognize as a highly rational and thoughtful age.  Unfortunately, Brandi was offered a spot on the junior varsity squad, and to make matters worse, she did not get the position she tried out for on the softball team.

Frustrated and armed with a phone, Brandi shared her feelings on Snapchat, using profanity toward school and sports.  Naturally, when her Snapchat “friends” saw the posts, they took pictures and it spread like wildfire, getting back to the cheerleading squad and coaches.  Her apologies fell short and the school ultimately suspended her from the squad.

Brandi and her parents said, “give me an L for lawsuit!” and filed in Federal District Court, with the lower court ruling in her favor.  It opined that the school’s punishment violated the First Amendment, required the school to remove the discipline from her record, and pay nominal damages and attorney fees.  It was affirmed on appeal, with the Third Circuit relying heavily on the fact that Brandi’s behavior occurred off campus.  The school district appealed, seeking for off campus speech to be regulated by the school if it is substantially disruptive.

The Supreme Court of the United States (SCOTUS) noted that schools may be able to regulate some off campus speech, but not all.  While Brandi “used vulgarity, her speech was not obscene as this Court has understood that term.  To the contrary, [Brandi] uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

Her posts were not during school hours, and not on school property.  She used her personal cell, and didn’t call anyone out by name, including the school.  SCOTUS stated that all of this “diminish[ed] the school’s interest in punishing [her] utterance.” 

While her words were simply those of a temperamental teenager who didn’t get what she wanted, SCOTUS wisely opined that “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”  Happy Fourth of July everyone.

Monday, June 7, 2021

Michigan's New Parenting Time Guideline

After 20 years, Michigan has a new parenting time guideline, drafted by the State Court Administrator’s Office, Friend of the Court Bureau, and the Michigan Supreme Court.  It’s important for attorneys and parents to know that these are not the law, and instead provide an outline of what suggested parenting time should be for children of various ages in different circumstances.  They are user-friendly and written so that an attorney or client understands what to expect.

The ages looked at are grouped in small increments so that the suggestions cover more than one age group.  It provides parenting time outlines for birth to 12 months, 3 to 5 years, 5 to 10 years, 10 to 14 years, and 14 to 18 years of age.  One consistent theme across all the age groups is a recommendation for overnight parenting time if both parents have provided the child’s day-to-day care.  If primarily one parent cared for the child, the other should begin with limited parenting time that can increase gradually as the relationship between parent and child grows.

I really appreciate the fact that the guideline provides information about typical child behavior in each age group, as well as suggestions as to how parents should communicate about their child’s needs and potential concerns.  By focusing on what is “normal” at a certain age, it will alleviate concerns that behavior changes are strictly related to the parents’ separation or that the child only acts a certain way when they are with mom or dad.  The truth is, many children behave in this manner regardless of their family dynamic, and it should not automatically lead a parent to believe something is “wrong” with parenting time.

For younger children, the guideline suggests more frequent and shorter contact.  As the child gets older, parenting time increases to longer periods, and at least two overnights every two weeks for children ages 3 to 5.  If the relationship between parent and child is not yet fully formed, transitions to increased parenting time are a good way to give everyone the necessary time to adjust.

Once the child enters school, schedules will likely have to adjust to accommodate the school day and transportation.  Transitions should be limited and splitting school break time should be taken into consideration.  As the children become pre-teens and teens, they will likely want to spend more time with friends, and both parents need to be cognizant of this fact and stay active in the children’s activities and friendships.  The older age groups do not need as much frequent contact with each parent to maintain the parent-child bond.

With COVID-19 and the constant increase in technology, the guideline recognizes that video chatting or virtual parenting time are real possibilities and should be utilized in appropriate cases.  It can improve the parent-child bond and decrease the stress of time between visits.

Because every case is unique (don’t believe that your case should turn out exactly like your neighbor’s case did), the authors provided suggestions and explanations for various types of family situations.  Domestic violence, long-distance relationships, reunification, and children and parents with special needs are just a few of the considerations that are discussed in the guideline. 

Blank calendars are provided, as well as examples of schedules that can be utilized for the parents to come up with their own parenting time ideas.  It contains a worksheet to write down specifics about the situation and provides a brief overview of what a parent can do to enforce parenting time through the court system, including the Friend of the Court.

Overall, I think the new guideline is going to be extremely helpful to litigants representing themselves, attorneys, and the courts.  The take-away is that this is not a “one size fits all” guideline, and you should always focus on what is best for your unique family.