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Friday, April 26, 2024

Paid surrogacy is no longer a crime in Michigan

Coming in last, Michigan joins the rest of the states in finally decriminalizing paid surrogacy. Governor Whitmer signed the Michigan Family Protection Act which will aid those who grow their families with the help of science.

 As most people know, surrogacy is when a person other than the intended parent carries the baby for those who will become the child’s legal parents. For people who are unable to become pregnant the “old fashioned way,” surrogacy is an important option to make their dream of becoming parents come true. Surrogates are giving more than nine months of their lives to help others, as medical preparation, legal contracts and meetings occur prior to the actual implantation of the embryo.

 

Prior to the new act taking effect, Michigan criminalized paid surrogacy, with penalties of a $10,000 fine and a maximum of one year incarceration. The new act encompasses nine bills, including surrogate regulations. According to the Michigan Fertility Alliance, only 5% of women meet the law’s standards for who can be a surrogate, lessening the chance of complications. The law sets forth what surrogacy agreements must contain and rules that must be followed, and clarifies how the parent-child relationship is established.

 

These changes greatly help those within the LGBTQ plus community as well as others who need reproductive assistance. While it took Michigan a long time to reach this point, it’s better late than never.

Monday, March 25, 2024

Texting judge is off the bench

People are addicted to their cell phones, with no end in sight for the obsession. States have passed laws requiring calls to be hands free and prohibited texting while driving, and schools have rules in place to control when and where a student may access his phone. They are frequently prohibited in various medical settings, and businesses advertise that they won’t take your order or assist you unless you have ended your phone call.

 In jury trials, jurors are given a strict list of rules regarding use of cell phones, with some courts only recently allowing non-lawyers to have their phones in court. You would think that court employees, especially judges, would behave appropriately and respectfully relative to cell phones. After all, they require it of everyone else.

 

That, however, is not the case for now former district court judge Traci Soderstrom of Oklahoma. During a murder trial where the defendant was charged with killing a two-year-old boy, Soderstrom sent over 500 texts to her bailiff commenting about the attorneys and witnesses in the case (both negative, positive and some outright disturbing). She texted that the prosecutor’s witness was a liar and she wanted to clap for the defense attorney. This was done during jury selection, witness testimony and opening statements. Courtroom cameras clearly show her on the bench looking at and holding her cell phone.

 

Ultimately, the defendant was found guilty of second-degree manslaughter and given a sentence of time served. While everyone is guilty of not paying attention at times, one wonders how legitimate and trustworthy are the court proceedings in the case, or any other case Soderstrom presided over? Was the judge preoccupied with her phone when an objection was made? Did it lead to inaccurate rulings? The texts themselves clearly show a lot more than the appearance of impropriety.

 

Her behavior may lead to questioning all other hearings that were in front of her, and possibly reopening matters that were considered resolved. Soderstrom resigned in February 2024, stating “I promised to uphold the Constitution in a fair, even-handed and efficient manner. I believe that I have done so. However, being human, I have also faltered.” Indeed, we are all human, but her behavior is more than a falter – it’s unconscionable.

 

Wednesday, February 28, 2024

Ohio Church Update

In my last article, I addressed the backlash against Chris Avell and his Ohio church, Dad’s Place, when Avell opened the church to the homeless 24/7 and provided shelter to those least privileged. He found himself facing 18 criminal charges for city ordinance violations, and in turn, Avell slapped the city with a lawsuit for hampering religious activities.

Shortly after I had written my article, I received an email from First Liberty Institute, which included an update on Avell and the church’s predicament. On February 6, 2024, the city of Bryan, Ohio, dropped the charges against Avell, without prejudice, since he agreed to shutter the church’s doors to those seeking shelter. He had previously pled not guilty.

Dad’s Place plans on moving forward with obtaining the proper certifications and permits to continue its work of providing for the community. The mayor of Bryan was quoted as saying she appreciated Avell’s willingness “to ensure that the services provided…are delivered in a safe manner.” If you recall, part of the concern for the makeshift inn was the increase of criminal activity in the area.

So how do the church and city move forward and resolve the lawsuit at hand? Mediation of course! The church and city are engaging in mediation to attempt an amicable resolution. We often see mediation in domestic law cases, helping people resolve property, custody, parenting time, and support issues while the parties are embroiled in a divorce or custody matter. Because that is one of the most popular cases to mediate, some people aren’t aware that just about anything can be mediated. It’s usually far less expensive than a dragged-out court case, and Dad’s Place can use that money to pay for improvements to expand their community outreach.

Friday, February 2, 2024

O-HI-No for church opening to homeless

 Treating others as he would like to be treated has caused legal problems for Chris Avell, the pastor of Dad’s Place Christian church in the small town of Bryan, Ohio. Dad’s Place is located next to a homeless shelter and welcomed those who needed shelter into the church around the clock. Instead of being met with praise for his good actions, Avell was hit with 18 criminal charges for violation of city ordinances because the church lacked appropriate kitchen and laundry facilities, and proper ventilation and exits. He has pled not guilty.

Not willing to turn the other cheek, Avell filed a federal lawsuit against the city and its officials, as well as Bryan’s mayor Carrie Schlade. The church alleges that the city is infringing on its constitutional right to religious freedom by harassing the church and filing charges. Avell believes the city’s behavior is a “not in my backyard” issue, and that it blames the church for tarnishing the area.

 

Implying that the homeless are wolves in sheep’s clothing, the city claims that there’s been an uptick in police activity and concerns relative to criminal behavior occurring at the church, making it necessary to enforce its ordinances.  Prior to charging Avell, the zoning administrator gave the church 10 days to exile those taking shelter.

 

The church claims that various city police officers, hospital employees and shelter staff sent individuals to Dad’s Place for refuge. Two volunteers remain at the church to handle any issues that arise, and individuals are free to leave at any time.

 

The day of reckoning is March 4, when the court will hear the request for an injunction against the city; in the meantime, the status quo remains in effect. The outcome of this case will determine if we really are our brother’s keeper.

Thursday, January 4, 2024

Michigan's minimum wage increase

Michigan rang in the new year with a boost in its minimum wage, increasing from $10.10 to $10.33 per hour. Tipped employees also saw an increase to $3.93 per hour. While many do not consider this a wage that one can live on, let alone support a family, income is very important in family law as it directly impacts support payments.

If a person is actively working and earning a specific wage, it’s pretty easy to figure out support based off paychecks and W2s. At times clarification is needed in terms of retirement contributions, union dues, health care insurance, etc. but W2 employees bring a smile to everyone’s face in family court. There’s less to argue about if a party’s income is screaming at you in black and white.

 

If a party to a case is not working, but could, what figure is used to determine their income? I’m glad you asked. The 2021 Michigan Child Support Formula Manual Section 2.01(G) addresses imputation of income, and multiple factors must be considered before the potential income is determined. There is no minimum or maximum requirement for a person’s imputed income.

 

Because the courts can assign a party “pretend income” as I like to call it, knowing the correct minimum wage amount is imperative to ensuring that the formula recommended amount is as accurate as possible. It’s also important to recognize that minimum wage amounts vary from state to state, and certain cities can top the state’s minimum wage. For example, Washington has the highest state wage at $16.28 per hour, but the city of Seattle provides $19.97 per hour.

 

The US Department of Labor’s website contains valuable information about each state’s rate and if any special circumstances apply.  Generally, if a state doesn’t have a minimum wage law, employers subject to the Fair Labor Standards Act must follow the current Federal minimum wage of $7.25 an hour, with this figure having been in effect since 2009.

 

No matter where you live, minimum wage will always be debated, especially during election years. Cooperating with any court support investigation will aid in reaching a right sized support order. Advocate for yourself and don’t assume gaps in your testimony or questionnaires will be filled in correctly – if you’re in control, you can do more than the bare minimum.

Monday, December 4, 2023

You've been served

Timing is everything in the court system. The deadlines and dates are endless and if you miss one, it can change the entire trajectory of your case. For this article, I am focusing on the service deadlines for filing regular motions in circuit court.

Governed by MCR 2.119, a party must serve his or her motion on the other party no later than nine days before the hearing via first class mail or seven days via personal service. As many courts now accept, and in some cases, mandate, electronic filing, there is a court rule on electronic filing and service, MCR 1.109(G)(6)(a)(iii). It states: “Delivery of documents through the electronic-filing system in conformity with these rules is valid and effective personal service and is proof of service under Michigan Court Rules,” thereby allowing a party to utilize the seven day service requirement.

 

The closer you serve your pleadings to the hearing date increases your odds of the opposing party or attorney asking for an adjournment so they can prepare a response or engage in negotiation talks. Remember that a favor granted by you in terms of pushing out a hearing date is more likely to be returned in the future when you’re the one short on time.

 

Individuals representing themselves often neglect to file proof of service for the documents that they served on the opposing party. While the legal process is difficult to navigate pro per, several standardized court forms contain a certificate of mailing or proof of service section to complete where the party can write the date and sign, indicating when he or she served the documents on the opposing party.

 

However, this section is often ignored and left blank. On forms that don’t contain this handy dandy option, parties need to be aware that they must file a separate proof of service, listing the documents served, how and when they were served, and the name and address of the person served. Without this, the court will likely adjourn the hearing so the party can effectuate proper service.

 

On occasion, a party has actually served the other side but was unaware that the court file needed yet another piece of paper to verify this fact. If the “unserved” party attends the hearing and waives the defects in service, the court can hold the hearing. Otherwise, the matter will be adjourned. Side note: please don’t serve your ex at parenting time exchanges. JUST DON’T.

 

Be sure to dot your i’s and cross your t’s when it comes to filing your proof of service so your motion can be heard timely.

Wednesday, November 1, 2023

Proper pronoun use has come to court

The Michigan Supreme Court voted to amend Michigan Court Rule (MCR) 1.109 to include language about respecting a litigant’s or attorney’s preferred pronoun when “addressing, referring to, or identifying the party or attorney, either orally or in writing.” It is the first state to do so, and the amendment takes effect January 1, 2024.

Case captions can also include Ms., Mr., or Mx., and a personal gender pronoun. The court must use either the “individual’s name, the designated salutation or personal pronouns, or other respectful means that are not inconsistent” with the person’s designated salutation or pronouns. The vote to amend the rule was five in favor, and two against. Michigan Supreme Court Justice Welch noted that as society evolves, so does vocabulary, and the judiciary must recognize and respect the desired identity and pronouns of the society served.

 

Opponents of the change believe that courts are wading into a significant political issue that has no place in a courtroom. Defenders of the amendment note that if the court has a religious or other objection to using a preferred pronoun, the party can still be addressed by their role and last name (Attorney Jones, Defendant Jones).

 

Like everyone else, judges have personal beliefs and thoughts on gender identity and pronoun use. In an environment that many litigants feel is ripe with bias and inequity, recognizing how a person identifies helps protect against gender prejudice.