Imputation - what you need to know, Part 1

People file for child support modifications all the time, hoping to get an increase to help with the adjustment of rising prices, for just about everything, or a decrease, due to a change in income or job loss.  Whatever the reason for the petition, it’s rare to have both parties happy with the outcome.  And to top it off, just because you ask for child support to be increased doesn’t mean that will be the result – if the support formula recommends a decrease, so be it.  The same situation plays out if one party asks for support to be lowered – if the formula recommends an increase, there you have it.  Hard feelings don’t even begin to explain the reaction when that happens. 

 

Child support frustrations heighten when a party is imputed, or assigned potential income.  The support formula manual allows for imputation when a parent is “voluntarily unemployed or underemployed, or has an unexercised ability to earn.”  See Michigan Child Support Formula (MCSF) 2017 §2.01(G).  Basically, it boils down to the court being able to “pretend” that a parent makes a specific amount of money for the purposes of child support.  The parent doesn’t actually earn the money attributed to him, or he may earn a portion of it, but not as much as the total figure that is used to calculate support.

 

According to the MCSF Manual, imputation should not exceed 40 hours a week or include overtime/shift premiums.  If you are already working 35+ hours a week, imputation should not be utilized.  Not surprisingly, in order for the court to assign a party potential income, it must analyze a set of 11 factors (what would a court document be without factors anyway?).

 

The imputation “dos” and “don’ts” are found in the MCSF Manual, Section 2.01(G)(2)(a)-(k).  I will examine these factors in this article and the next – let’s begin!

 

The first factor requires the court to examine the past employment experience and work history of a party, to include why the person is no longer employed.  We all know people who just can’t keep a job, and it’s always someone else’s fault.  Well, if your ex was fired for showing up to work intoxicated for the third time, that’s a legitimate fact to consider for imputation, as it should be.  This factor makes the most sense – what did you do in the past and why aren’t you doing it anymore.  How much experience a person has at a particular job is also telling as to what they could realistically earn in the future.

 

The second factor focuses on educational background, training and skills.  In theory, the higher the degree, the more money can be made, right?  While that may not always be true (think of Bill Gates), in general, people with a doctorate degree have the potential to earn more than those with a high school diploma.

 

Next, the court must look at a party’s physical or mental disabilities that impact the “ability to work, or to obtain or maintain gainful employment.” MCSF Manual §2.01(G)(2)(c).  This is the factor that causes the most arguments at my hearings – inevitably, if one party professes to be disabled, the other is absolutely certain that it’s all a lie, because the disabled party can do x, y and z on a regular basis.  It’s at times hard for me determine the veracity of this type of testimony, in particular from individuals who represent themselves, and don’t know what type of documents to bring, or witnesses to call for the hearing.  When a party is receiving a disability benefit, it can quiet the questioning by the other side.

 

A court must also look at whether or not a person is available to work, not to include times where looking for work was impossible.  You can’t expect someone to be out pounding the pavement and handing in resumes if that same person was in the pokey or hospitalized.

 

The last two factors for this article concern the “local geographical area” – what are the job opportunities, going wages, and number of hours available around town?  For some areas that have been hit hard with job loss, it may be difficult to find a full-time job in that particular region, and not everyone can just pack up and relocate to a more profitable community.  Salaries are higher in areas with a higher cost of living, so that needs to be factored in as well.

 

Stay tuned for the factors finale in the next article.

2017 Michigan Child Support Formula Changes

Well, the “Redcoats” aren’t coming, but the 2017 Michigan Child Support Formula is!  Starting January 1, 2017, the new formula and its manual will take effect, along with some welcome and I’m sure, unwelcome, changes.  I would like to highlight the two topic changes that I personally think will cause the most noise (cheers and jeers) among practitioners and clients alike – retirement and health care.  

 

The biggest “BOO!” I see coming revolves around what a party contributes to his or her retirement.  Under the current manual (2013 edition), the court can take into account voluntary retirement contributions made by a party as a deduction for purposes of the child support formula.  This amount can be up to 5.5% of one’s gross income.  The 2017 formula eliminates this option, and only provides for mandatory or nondiscretionary retirement contributions.

 

Realistically, we all want to save for retirement, and in my opinion, the voluntary retirement contribution deduction was a good thing.  The court should consider that people need to support themselves in the future.  The 2013 formula provided for a cap of 5.5%, so if an individual contributed a substantial amount over 5.5%, anything above the 5.5% would not be considered.  Alas, the powers that be did not agree with (or ask) me. 

 

Another retirement change is that employer contributions to a person’s pension or retirement have been removed from what is considered income.  To be honest, I don’t know too many people that utilized that provision previously, so I doubt it will be missed.

 

Health insurance changes will likely generate the largest cheers from the crowd, with modifications to allow for credit for a party’s spouse who covers the children on his or her health insurance.  This just makes sense.  The manual states that “[t]he court may permit a parent to provide required coverage through alternative means, such as a spouse’s or other household member’s coverage or coverage provided by a nonparent-custodian…provided that a parent is required to purchase coverage immediately should the alternative coverage stop.”  (MCSF Manual §3.05(B)(3)).  The manual goes on to say, “If the parent provides insurance for the children-in-common using a spouse’s or household member’s benefits, consider amounts paid by the parent’s household as the parent’s premiums paid to insure the children.”  (MCSF Manual §3.05(C)(1)(c)). 

 

One of the biggest complaints I hear is that it’s not fair to ignore the cost a spouse pays to cover their step-children on his or her insurance.  And, that’s a legitimate complaint – the money is likely coming out of a marital pot, and there’s no reason to pretend that health insurance costs are cheap.  Consideration of the cost to provide for that insurance has also changed – the 2013 formula provided that parents had to cover their children on their insurance as long as it did not exceed 5% of their gross income to do so.  The 2017 formula, section 3.05(A), has increased that reasonable cost to not exceeding 6% of the providing parent’s income.

 

Also, a new deduction was added – the cost that a parent pays to provide him or herself with mandatory health care coverage.

 

The last health care change that I think is important to note is the annual ordinary medical cost.  This cost represents the dollar amount the payee has to pay each year prior to the payer’s requirement to contribute a percentage to unreimbursed health care costs for the minor children.  This also assumes that the payer is contributing an ordinary medical portion in his or her total child support cost each month.  The current numbers are:  $357 for 1 child; $715 for 2 children; $1,072 for 3 children; $1,430 for 4 children, and $1,787 for 5 or more children; with all of those amounts being per year.

 

For orders entered after the 2017 effective date, the new amounts are:  $403 for 1 child; $807 for 2 children; $1,210 for 3 children; $1,614 for 4 children, and $2,017 for 5 or more children, all per year.  While the numbers have jumped a decent amount, so has health care.  The average cost most parents spend out of pocket each year for their children’s health care is often much more than the amounts provided by the formula.

 

I will likely supplement this article down the road, once I’ve had the chance to fully utilize the new formula with actual cases.  I’m not a huge fan of change, so my Spidey senses are tingling with a whole new formula manual after 4 years.  Here’s to hoping it’s received and put into practice well!

Finally, you too can calculate child support!

After years of parents asking me if there is an online program they can use to calculate their child support obligation correctly, the answer is finally yes!  What’s even better is the fact this online, free calculator will provide you with the same State of Michigan guidelines that you would receive from the Friend of the Court (FOC).  Of course, I have to state a disclaimer that arriving at identical figures assumes both you and the FOC used the same numbers for every entry.  


To access this new tool, simply go to www.michigan.gov/michildsupport.  Next, click on “Additional Services,” and then, “Calculate Child Support (MiChild Support Calculator).”  You don’t need to create an account or log in to use the program (thankfully, since I already have 562 passwords for every online account I have ever opened).  This link will direct you to the explanation page, and there is a pretty good rundown of the information you will need to input into the program.  



Since the program will close if you are inactive for a certain amount of time, I would suggest collecting all of this data (or at least have an idea of the figures you are going to use if you are estimating income, etc.) before you sit down and begin.  Some of the information required is:  each party’s income, number of overnights per year with the minor children, tax status, number of exemptions, cost of health insurance premiums and daycare, and children’s names and birth dates.  The site includes a link to the Michigan Child Support Formula Manual as well, which explains the formula in detail.



I actually did a practice run on the program to see what it was like, and found it fairly straight forward.  For each entry area, the parent to whom the entry applies is listed up top, and there are easy to see tabs to add income, child care expenses, etc.  If you are math challenged (like most attorneys), you don’t even have to calculate every little penny – the program allows you the option to input your income a variety of ways – for example, your hourly wage, daily rate or yearly salary – and the computer will do the calculation for the monthly gross income.



After providing the program with all of my imaginary data, I was able to receive honest-to-God accurate “imaginary” results!  And, I could print them!  Make sure that you print out your calculation, because the program does not have a save feature, so you can’t start and come back later either.  There is a nice breakdown summarizing the data submitted (helpful to double check after the calculations are completed), and a chart for what support would be for varying amounts of children.  It even tells you the child care reimbursement end date (child care ends August 31st following the child’s 12th birthday).  Again, if you don’t like math, it is nice to have this all done for you.  It also provides the uninsured medical expense cost percentage for each parent.



Overall, I am impressed with the program and its ease of use.  It will allow parents without an attorney to get an idea of the outcome of a child support review, preventing surprise if it doesn’t go the way they wanted.  It can guide parents in determining whether or not it’s even worth it to look into modifying support.  Parents can also calculate their own child support for a consent order before presenting the documents to the court, saving everyone time and frustration.  I’m extremely hopeful that this new tool will help not only the parents, but the court system as well.

Turning back time for victims

According to the Rape Abuse and Incest National Network, commonly known as RAINN, it is estimated that only 1 out of 3 sexual assaults are reported.  It’s not news that most assault victims bottle the incident away, fearful of not being believed, of being chastised because they weren’t sober, or were dressed a certain way.  In the academic scene, the horrific handling of sexual assault by major colleges and universities has not encouraged victims to press forward with disclosure.



Most people also know that there is a huge backlog of rape kits sitting on shelves collecting dust, waiting to be tested, which leads a victim to believe no one cares, so why bother going through the steps of reporting the crime and the attempt to catch the perpetrator.  Not to mention the significant emotional and physical toll taken by the court process, time off work, and the risk of loss at trial.



To add insult to injury, if a victim finally decides to speak up years later, he or she may find that the statute of limitations bars any prosecution from occurring as too much time has gone by since the crime was committed.  The most noticeable case where this has happened recently involves Bill Cosby and the dozens of sexual assault accusations against him spanning decades back.  



Due in part to the Cosby case, and to eliminate this additional barrier to survivors of assault, California Governor Jerry Brown recently signed the “Justice for Victim’s Act,” (See California SB 813).  Per the new law, which takes effect January 1, 2017, it will “allow the prosecution of rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child, oral copulation, and sexual penetration, that are committed under certain circumstances, as specified, to be commenced at any time.”  It applies to “these crimes committed after January 1, 2017, and to crimes for which the statute of limitations that was in effect prior to January 1, 2017, has not run as of January 1, 2017.”



Prior to this new law, prosecution of a felony sex offense in California had a 10 year expiration date from when the crime was committed.  Prosecution of other sex crimes for victims under 18 years old expired on the victim’s 40th birthday.  Basically, if a victim stayed quiet for a long enough period of time, the offender legally could not be charged with the crime, which is for lack of a better word, disgusting.



Michigan’s sex crimes statute of limitations varies – there is no limit of years for prosecution of Criminal Sexual Conduct (CSC) in the first degree; but for CSC 2nd, CSC 3rd, CSC 4th, and an assault with the intent to commit CSC, those must be prosecuted “within 10 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later.”  (See MCL 767.24).  However, if there is DNA evidence that goes along with the alleged crime, and that DNA belongs to an unknown individual, prosecution can commence at any time.  Once the DNA is matched to a known person, the 10 year limit applies from after the person is identified, or again by the 21st birthday of the alleged victim, whichever is later.



When you consider the devastating impact that sexual crimes have on the victim and his or her family, imposing a time period with which the perpetrator can be charged with the crime is shameful.  What is heard by the victim is the court saying, “well, 10 years have passed, we have moved on, you should too.”  The law should afford the victim as much protection as the accused, but as long as statutes of limitations for these crimes are in place, it fails to do so.

Cutting through the red tape for special needs kids

Almost every day that I am at work, I wish we had an office dog or cat.  Not because I require one to work, but because they simply make dealing with the day to day stress easier.  Who wouldn’t smile when seeing a goofy mutt lumbering down the hallway, or popping in the office looking for treats?



For some, having a dog as a service animal is imperative from the minute they wake up until the time they go to sleep.  Service dogs have long been viewed as welcome in offices, malls and governmental buildings without most people giving it much thought.  However, for a young student in Napoleon, MI, her fight to bring her service dog to school has gone all the way to the US Supreme Court.



Ehlena Fry, who was just 8 years old at the time the legal issues began, has cerebral palsy.  She also has a now mostly retired Goldendoodle, named “Wonder,” who her parents desired accompany her while in school as a trained service dog.  At first, Napoleon Community Schools said bringing the dog was a no go, but then allowed him to accompany her in the classroom on a trial basis.  However, while Wonder was permitted in the building, he could not go with Ehlena for recess, lunch, or activities out of the classroom, which essentially rendered him fairly useless.



Ehlena’s parents sued the principal at the time, Pamela Barnes, the county’s intermediate school district and the school directly at the heart of the conflict, Napoleon Community.  Ruling that the family had to jump through the hoops of an administrative hearing before filing suit, the lower court and the court of appeals dismissed the lawsuit.  Fortunately for the Frys, the US Supreme Court has agreed to hear the case, and determine if administrative hearings are a necessary first step before heading to the courthouse.



There are a lot of strong supporters on Ehlena’s side, and I think there should be.  The American Civil Liberties Union is representing the family; the Office of Civil Rights has determined that Ehlena’s rights under the Americans with Disabilities Act were infringed upon, and President Obama disagrees with the courts’ rulings thus far.



In these situations, administrative hearings delay a student’s ability to have access to his or her service dog while in school, which can be extremely detrimental to the safety and well-being of the child.  A cooperative relationship between parents and schools is ideal, but at times, the forced use of administrative remedies causes more harm than good.  



Not surprisingly, Ehlena now attends school in Washtenaw County.  Hopefully her story will have an enormous impact and will push forward rights of access for all special needs students.

Come one, come all! Adopt a highway!

In Michigan, we have all seen the road signs that recognize a family, business or organization that has volunteered to spruce up the highway by picking up litter for a certain number of miles.  I saw some of the “Adopt A Highway” bags filled with trash on US23 just the other day.  Not only does this help the environment, but it keeps the roads safer as potentially hazardous debris is removed, and the landscape is beautified (considering the shape of most of Michigan’s roads, picking up litter barely touches the negative visuals we have driving down the highway).  I’ve always considered the recognition signs to be a sort of public “thank you” to those who have volunteered their time (and safety) to making a difference.  Most of the signs are thanking families, large company employees, memorial groups, and yes, at times, law firms, for their help.



When I think of the Ku Klux Klan (KKK), I can honestly say I have never considered the organization to be civic minded.  My immediate images are those of exclusion, hatred, racism and violence against others for reasons out of one’s control, such as ethnicity and skin color.  However, in 2012, the International Keystone Knights of the Ku Klux Klan decided, hey, let’s pick up litter on a highway in Georgia!  So, they filed the paperwork to do so, but were rejected by the Georgia Department of Transportation, for two reasons. First, the area they were seeking to adopt was “unadoptable” due to safety concerns; and two, Georgia just didn’t think it was a good idea given the KKK’s history record of “civil disturbance.”  I think many people would be shocked if they saw a sign thanking the KKK for picking up garbage on the highway, and that could lend itself to accidents, or perhaps incidents that were not exactly accidental.



Considering its persistence throughout history, Georgia should’ve known that the KKK wasn’t going to leave it at that.  It sued the Department, through the ACLU, offering to pick up litter in another location, with the crux of the case being that they were denied their right to free speech, as provided by the Georgia Constitution.  The trial court sided with the KKK in finding that refusing to accept an application for the history of civil disturbance was “ ‘…an unconstitutional infringement on an applicant’s right to free speech.’ ”  It also prohibited the Department from denying applications to Adopt A Highway for this reason.



An appeal was filed by the Department of Transportation; however, the Georgia Supreme Court ruled on July 5, 2016, that the appeal was brought incorrectly, and it was left with no option but to dismiss the appeal on the basis that it did not have jurisdiction.



With the recent escalation of racial tension in the US, it is doubtful that this ruling will help calm the atmosphere – but I guess everyone has the right to pick up trash.

"Paws" and Think Before You Leave Buddy In the Car

As I am constantly pulling objects out of my puppy’s mouth, it’s a safe bet to say that I think about dogs a lot lately.  And sadly, I’ve seen quite a few reports of people leaving animals (including K-9 officers) in their cars, causing the animal’s death from the being trapped in a suffocatingly hot car.  We all know that leaving your child in a hot car brings criminal charges quickly, and steep ones at that (as it should).  Laws are in place to govern when the unthinkable happens to children as a result of being left behind, and lawmakers in Michigan are trying to better protect animals too.

 

Proposed Michigan Senate Bill No. 930(2)(H), introduced May 3, 2016, provides that “An owner, possessor, or person having the charge or custody of an animal shall not….leave or confine an animal in an unattended motor vehicle under conditions that endanger the health or well-being of the animal, including, but not limited to, heat, cold, lack of adequate ventilation, lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death of the animal.”

 

Under the proposed legislation, if a person violates the law, he or she would be guilty of a misdemeanor, which carries a 45 day imprisonment term or a fine of not more than $350.00, or both; the second offense is a misdemeanor punishable by 90 days in the slammer or a fine up to $500.00, or both.  If the animal suffers “serious physical harm,” the violator is guilty of a misdemeanor, imprisonment of up to one year, a fine up to $1,000.00, or both.  Last, if the animal dies as a result, the proposed law would make that crime a felony, punishable by up to five years in prison, a fine up to $5,000.00, or both.

 

If this bill makes its way to the Governor’s desk, it will provide prosecutors with stronger consequences for those violating the law than what are presently in place.  It will call out this specific behavior as a crime, hopefully giving pet owners pause (or “paws”) when they take Buddy or Muffin out for a Sunday ride and decide to stop at the local hardware store on the way.

A "Pawsitively" Great New Law

For all the negative things that Michigan Governor Rick Snyder has been in the news for lately, I found a pleasant surprise in my newsfeed the other day.  He recently signed into law additional protection for pets that are at risk of abuse and/or neglect.

On May 19, 2016, House Bill 4478 expanded the personal protection order (PPO) laws to include “animal[s] in which the petitioner has an ownership interest.”  The recognition that animals are often used as a means to threaten or injure the abused partner in a domestic violence relationship is a huge step in encouraging the abused partner to end the relationship.

Many abuse victims stay in the unhealthy partnership due to threats and fear that their children will be taken away.  However, people also remain in the relationship due to the same threats and fears, but as it relates to their beloved pets. Often times it is difficult for the person to escape with her pet because shelters and family members won’t or can’t accommodate the dog or cat.  Similar to how children are used as weapons against one parent in court actions and domestic violence relationships, so are pets.

The abuser tells the victim that if she leaves, she can’t take the dog, or the cat will be killed if she walks out the door.  Not willing to risk harm to the pet, the victim complies and stays in the relationship.

With the new law taking immediate effect, courts now have the authority to add pets to a PPO, prohibiting someone from doing any of the below acts, “with the intent to cause the petitioner mental distress or to exert control over the petitioner with respect to an animal in which the petitioner has an ownership interest”:  “[i]njuring, killing, torturing, neglecting, or threatening to injure, kill, torture, or neglect the animal….[r]emoving the animal from the petitioner’s possession….[r]etaining or obtaining possession of the animal.”

Michigan is the 30^th state to afford this protection to pets.  According to the ASPCA, the overwhelming majority of women at domestic violence shelters – 71% - have experienced their abusive partner threatening or actually injuring (including killing) a pet.

However, while this law is a great step in encouraging victims to leave an abusive relationship, the reality is that many shelters still will not accept pets.  Hopefully by affording pets greater protection under the law, shelters will be able to obtain funding or set up a foster program to care for the animals of abuse victims until safe, permanent housing can be acquired.

Going Green for PTSD

On April 20^th of each year, people celebrate the king of all things green – marijuana.  And on that day last month, Colorado’s Department of Health and Environment agreed to provide funding for a groundbreaking marijuana study. 

The DEA (Drug Enforcement Administration) has signed off on allowing veterans, 76 in total, to legally use “raw” marijuana in an effort to see if it aids them in treating Post Traumatic Stress Disorder (PTSD).  The drug will be provided courtesy of the Federal government as well – unbeknownst to me, the Feds own a marijuana farm at the University of Mississippi.  Variations of strains and potencies will be tested on those participating.

Getting the DEA onboard provides a real opportunity for marijuana to become a prescription drug, and the study is the first step at beginning this process.  Most drugs have to undergo a rigorous research and testing process before they hit the market, and this will help marijuana meet that criteria too.  The funding is sourced from medical marijuana application fees, which frankly, makes total sense.

Marijuana has been legalized in various states for medical purposes to treat a variety of health problems, including cancer, pain and seizures.  Many individuals who suffer from PTSD claim that marijuana has helped them deal with the ailments that accompany PTSD.

According to the US Department of Veterans Affairs’ website, 7-8% of the American population will suffer from PTSD during their lifetime.  From the veteran population, an estimated 30% of Vietnam vets have experienced PTSD; 12% of Gulf War vets, and 11-20% of those that served in Operation Iraqi Freedom and Operation Enduring Freedom.

Enrollment will likely take place over a two year period, and the results will hopefully be known by 2019.  The study will take place out of Arizona and Maryland.

For those suffering from PTSD, and in particular military veterans, this study could be life (not just mind) altering.  The approval itself has already impacted the legal community, and it will only continue to do so if it is proved effective and safe for treatment.

Tent vs jail cell - your call

I just renewed my license tabs, and noticed that if my plate was 10 years or older, it had to be replaced to ensure that it was legible.  MCL 257.225(2) states that a registration plate shall be “in a place and position that is clearly visible…maintained free from foreign materials that obscure or partially obscure registration information and in a clearly legible condition.” 

The Michigan Supreme Court recently ruled on a case that we Michiganders should pay heed to with the summer camping season coming up – before you hook up your camper to the back of your truck this summer, be certain that the trailer hitch doesn’t obscure the full view of the license plate.  If it does, or if any other object obstructs the visibility of your plate, the police can pull you over for this offense alone.  And if you’re like Charles Dunbar, it might lead to worse consequences.

Back in 2012, Mr. Dunbar was cruising around Muskegon County in his Ford Ranger, which had a towing ball attached to the bumper.  The police were also cruising around, and decided to run his license plate, for no other particular reason than that’s what police do.  Because the towing ball was in the way, they punched in the wrong plate number, which made it look like Dunbar was driving the wrong car.  We all know what happened next – Dunbar was pulled over.

Unfortunately for him, the cops noticed the undeniable odor of marijuana coming from his vehicle, and you can probably guess what happened next – the search led to more exciting finds – cocaine and a gun!

Naturally, Dunbar wanted this evidence suppressed, arguing that the cops had no legal basis to pull him over in the first place.  The trial court disagreed, noting that Dunbar had violated the statute since his plate was obstructed by the towing ball.  The Michigan Court of Appeals sided with Dunbar, however, and reversed the lower court’s decision.

On March 29, 2016, the Michigan Supreme Court unanimously ruled that the trial court was indeed correct, and Dunbar was once again out of luck.  This wasn’t exactly his first offense either, having been charged as a fourth time habitual offender.

Make sure to add checking your license plate to your camping to do list - we can all agree that living in a tent is better than a jail cell.

Weed and work just don't mix

It’s Sunday morning and you are looking forward to a day off of work.  You wake up and your back is just killing you – must be that disc problem doctors say that they simply can’t fix.  Good thing is, you have something that can help, and even better, you have a prescription for it:  medical marijuana.  

Now that you’re done hiding those “green brownies” from the kids, you relax and start to feel the pain ease up.  Monday rolls around, and the boss randomly selects you for the drug testing program.  Not a problem, because you have a prescription for the weed in your system, a license to use an otherwise illegal drug, so you comply without a second thought.  And then, in the words of Donald Trump, “you’re fired.”

A similar ending played out for Colorado resident Brandon Coats in 2010, who got the ax from Dish Network after failing its drug test for having marijuana in his system.  Medical marijuana is legal in Colorado and has been for 15 years.  Colorado also provides an added bonus:  you can legally smoke marijuana recreationally, but your boss can be a buzz kill and prohibit its use by employees.  Despite both sides agreeing that Coats’ use of the drug did not occur at work or impact his job, he was still fired.  

The Colorado Supreme Court recently ruled in Dish Network’s favor, noting that while the law protects employees from wrongful discharge if they are engaged in lawful activities, it only protects activities that are legal at all levels – state and federal.  While the US Supreme Court has made some big decisions lately, none of them legalized pot.  Thanks to this little technicality, Coats was not improperly terminated by Dish.

Medical marijuana is permitted in many states, Michigan included, and this case could have substantial impact across the country in making legal decisions about employees that use pot.  I’m on the fence about whether or not Coats should have been fired – on one hand, everyone agreed that his use of marijuana did not cause a problem at work, and he had a valid prescription for it.  On the other hand, ignorance of the law is not an excuse to violate it, even if it does seem like a tricky detail few in the work force knew about.  

Lesson to be learned:  Don’t assume that your boss’ encouragement of participation in the company potluck means he approves of the brownies that you keep bringing.

SMILE!

When you are involved in the family law court system, chances are you don’t feel like smiling.  And if there weren’t already enough lawyer appointments and court hearings, the judge may order you to attend a program called SMILE.  You can voluntarily participate too (not a lot of people see this as an option, but hopefully this article will change your mind).

SMILE stands for Start Making It Livable for Everyone, and is offered in counties throughout Michigan.  In case you are one of those people who is afraid of the dentist, have no fear, the SMILE program has nothing to do with cavities and Novocain.

The program varies from county to county, but its purpose and message remain the same:  help parents going through separation, divorce, or those were never in a relationship, put the needs of their children first and improve their co-parenting relationship.  SMILE shows parents how their children are impacted by the behaviors of the adults, and how this behavior shapes their little beings both physically and emotionally.

SMILE lasts approximately one to two hours and is typically offered once a month.  Friend of the Court staff, therapists and counselors active in the court system, as well as family law mediators, are some of the potential speakers at each session.  Videos examining the impact of separation may be shown, but the personal and professional experience of the speakers are what make this program truly worthwhile.  These individuals have been working with the court system, parents and children of separate households for years and have likely ran across every situation imaginable.

Many individuals tell me that there is no need for them to attend SMILE because they don’t call their ex bad names and don’t fight in front of the children.  While the program certainly encourages a peaceful relationship between parents, it also provides parents with an idea of how the kids may react to the life changes that occur with the breakup of the intact family.  Every child’s reaction is unique, but there are definite behavioral changes, stressors and worries that children experience.  Learning what those are and how to tackle them as a parent can help your child (and you) better adjust.

Parents are encouraged to ask questions and actively participate during the program, with many of the speakers providing their contact information for future assistance.  Some counties provide a SMILE booklet that contains a summary of the program’s important points, as well as helpful resources like books and contact information for various organizations.  If your county does not provide a book, both Oakland and Washtenaw Friend of the Court websites have a link to their books, so you can download a copy.  While the resource/contact list is likely area-specific, the rest of the content will largely be the same.

If your judge orders or invites you to attend the SMILE program, don’t look at it as yet another inconvenience of the court system.  View it as an opportunity to better your co-parenting relationship for the sake of the kids.

Buffet Bust

My family and I went to Arizona in January to escape the somewhat cold winter we’ve been having, and to visit relatives.  We were lucky for two reasons:  one, it was really, really cold in Michigan the week we were gone, and really, really warm in Arizona; and two, we didn’t risk our freedom by attending any potlucks while there. 

I know, the last sentence deserves an explanation.  Unless you’re having your potluck at work, Arizona actually has a law forbidding it.  I’ve been to potlucks at work, potlucks at someone’s home, potlucks in a park, church potlucks, heck, I’ve even been to a potluck wedding (that one admittedly did hit me by surprise).  Based on my last sentence, you could write a Dr. Suess© book about them.

Arizona had the best of intentions when passing a law regulating “served food,” trying to ensure that everything was up to par with respect to safety and health inspections.  Potlucks at work were excluded from scrutiny, but nowhere else.  While a lot of these delicious “bring a dish to pass” gatherings occur at work, I can think of a myriad of other locales where they regularly take place. 

At first blush, you really wouldn’t think that anyone would even know that a) this law existed; or b) would care to call someone out on it.  However, one well-informed resident of a mobile home park in Apache Junction chose to rat out the neighbors and called the police (clearly he or she was simply not invited and decided to exact revenge).  Deputies actually came out and ended the festivities.  I am uncertain as to whether or not the organizer(s) were fined or arrested, as they legally can be under the law.

As one would expect, people were confused and pretty upset that the “food” police crashed the party.  Arizona legislators are presently working on a fix to modify the law and expand legal potluck locations.  I’m sure in due time, it will all be remedied, but what I really want to know is if the police confiscated the “evidence” from the buffet bust.

Jailhouse attorney

There are many times when a lawyer has dispensed advice that his client did not want to hear, and did not heed.  This can be problematic on both ends, because the client could end up in legal trouble, and the lawyer may decide that it’s just not worth staying on the case if the client refuses to accept his wisdom.  For one man, however, not taking his lawyer’s advice was the right move.

In 2013, attorney David Wenger of Grosse Pointe, Michigan, was representing a client in immigration court.  This particular client had been convicted of criminal sexual conduct in the past, which is not exactly a “small” crime.  Wenger knew of this conviction and was aware it would not be looked upon favorably by the court.  The real problem began when he advised his client to lie about it to avoid deportation.

It all came tumbling down when the client was testifying, and at an apparent moment of moral clarity, admitted to all of his wrongdoings.  Unfortunately for Wenger, he also admitted to what his attorney had advised him.

The prosecutors in Wenger’s case had more evidence to throw at him– a recorded conversation between Wenger and the client while the client was in jail, and a particularly damning email that Wenger sent, in which he was adamant about his decision to not disclose the conviction.

Wenger was recently sentenced for his part in all of this, and received a whopping 18 months in prison.  This was not the first time that his ethics have been called into question – in looking at the State of Michigan Attorney Discipline Board’s website, his slate is anything but clean.  Starting February 22, 2016, his law license will be suspended for two and a half years, to run consecutive to the 180 day suspension he previously received.  In the most recent Notice of Suspension, it provides various reasons for the decision, among those being Wenger’s violations involving client funds.

With his license to practice law gone, I wonder if Wenger will take up the profession of “jailhouse lawyer” while serving his time.    That might prove easier for him, since I’m pretty sure ethics are in short supply in prison.

Divorce is a one-way street

There are times when I send an email and instantly regret doing so.  Some email providers even offer the ability to “unsend” the message within a short few minutes to allow you to exercise that “on second thought…” feeling.

When you initially file a complaint for divorce, there is a waiting period.  It can be waived in some circumstances, but most people have to wait it out.  In Michigan, it’s six months if you have minor children, and two months without.  If there is a chance for reconciliation, it usually occurs during that time frame, and the divorce is dismissed so the couple can work on their relationship.  On rare occasions, the couple remarries after the divorce is finalized.

I have never personally handled a case where a couple tried to legally “reverse” their divorce, but that’s exactly what Terrie Harman and Thomas McCarron of New Hampshire tried to do.  The couple was divorced in July 2014, having enjoyed 24 years of wedded bliss.  Then in March 2015, they joined forces in a court motion, stating that they wanted the divorce voided as they were back together.  Basically, it was all one big fat mistake that they wanted fixed.

Like other states, New Hampshire will set aside divorce judgments for specific reasons – fraud, mistake, etc., but none of those fit the circumstances in this case.  In the Supreme Court of New Hampshire’s opinion, dated December 2, 2015, the court references one of Terrie’s arguments as being that the divorce will adversely impact financial assets, like social security, retirement and inheritance.  And, since they are back in love, why ruin the good thing they have going.  The Supreme Court didn’t buy that rationale and ruled against the couple, stating that absent statutory authority, the court has no power to vacate a divorce judgment based on the parties’ reconciliation.

One of the more ironic facts of this case is that the ex-wife is an attorney.  I’m guessing she doesn’t practice much family law.

Naughty or Nice? Parenting time denials

When I was in high school, I let my younger brother drive us to school one day.  I thought the car was going to flip when he rounded a particularly sharp curve on the highway without slowing down.  I asked him why he didn’t follow the speed limit posted on the bright yellow, diamond shaped road sign, and he said, “that’s just a suggestion.” 

Unfortunately, the practice of family law lends itself to hearing that same type of excuse from parents when they fail to follow a court order.  When a judge signs a court order, he doesn’t cross his fingers and think “I hope this works out” (okay, in some cases, I bet that does happen).  The court issues orders, whether by consent of the parties or the court’s decision, because it expects the orders to be followed.  I can guarantee that I’ve never seen an order where its terms are merely “a suggestion.” 

A lot of people believe that if their ex decides to unilaterally ignore the parenting time provisions of their court order and deny parenting time, they should call the police.  After all, cops enforce the law, right?  Many are often disappointed that the police tell them they won’t get involved in “civil” matters (when was the last time you saw a couple in a family law case be civil?  HA!)

If you are denied parenting time, what you should do is contact your Friend of the Court (FOC) and look into what services it offers for parenting time enforcement.  Some offices have a specific employee who handles these issues, and others spread it amongst several employees who may have other functions.  The FOC office that you would contact would be the one located in the same county as your court case. 

Usually, there is a form for the denied parent to complete and provide details as to what his or her side of the story is.  You have to submit the complaint within 56 days of the alleged denial, and many counties require you to have to attempt an actual physical pick up in order to consider it a denial of parenting time.

Once the FOC receives the complaint, your last parenting time order (if applicable) is reviewed. If it appears that you were entitled to parenting time on the day you were denied, a letter is sent out to the alleged offending parent asking for an explanation.  In a perfect world, a timely response is received and the worker can determine if the denial a) actually happened; and b) was justified.  Make-up parenting time can be ordered in accordance with the FOC’s policy; the parents can be called in to a joint meeting to try to work on their issues and devise a better parenting plan; and/or the offending parent can be show caused to explain why he or she denied the time.

Some reasons for invalid denials include not sending the child because he or she did not want to go; the child was sick (unless there is a doctor’s note indicating the child was not to travel at all and was to be on bed rest); bad weather; the child has other plans, etc.

Unfortunately, a lot of parenting time denials occur around the holidays, so be sure to follow up with the FOC to address any issues. Or, write Santa and tell him to add your ex to the naughty list.

Family ties

Before June of 2015, if you were a same sex couple in a state that did not validate same sex marriage, you had to get creative with how to provide your significant other with health care and other benefits.  For many of the couples faced with this dilemma, adoption was a viable option that afforded the legal family relationship necessary to secure medical and financial advantages.

One particular court case making headlines recently is that of Pennsylvania residents Nino Esposito and Drew Bosee, a same sex couple that have been together for over four decades.  Esposito, the elder of the two, legally adopted Bosee as his son in 2012, in a fairly simple process given that both of their parents were deceased.  This allowed them to reap the same benefits as others recognized as family, but more importantly, legalized their relationship in a way that wasn’t possible at the time.

With the 2015 Supreme Court ruling of Obergefell v Hodges providing for same sex marriage throughout the United States, it made sense to go about recognizing their relationship how they had desired to from the start – as a married couple.  Esposito and Bosee decided to annul the adoption and proceed with a marriage, which they had to do since Pennsylvania law recognizes marriage between adoptive parents and children as incest.

Logically, this all makes sense.  Plan B (adoption) was only carried out because Plan A (marriage) wasn’t available to them.  Now that Plan A is available, let’s scrap Plan B and move on.  This type of situation had already been remedied with others that were in the same predicament – the adoption was annulled, and the couple legally wed. 

However, Judge Lawrence O’Toole ruled that their adoption remained in place, stating he didn’t believe that he had the legal authority to annul it.  The case has been appealed, and will hopefully be overturned, thus paving the way for other couples in the same predicament to have a just result.

In the meantime, Esposito and Bosee will have no choice but to do something all too familiar to them – wait.

Taking the plunge...again

I call it jumping out of the frying pan and into the fire when a newly divorced person remarries right after the finalization of his or her old marriage.  I can’t understand how someone thinks it’s a good idea to take the same vows that he just dissolved mere weeks later.  In some cases, the new spouse may not be so “new” because that relationship may have been going on for a while (gasp!).

If an adult wants to make a decision that may not be the best in hindsight, that is his or her choice.  However, from a family law standpoint, I truly hope those with children consider how these quick, new relationships impact them.

All children, even if an adult, are affected by their parents’ divorce.  Whether they are relieved and think “well it’s about time,” or never saw it coming, their parents’ marriage has already shaped their lives and their future relationships.  It can be much healthier for a child to witness two separate but happy relationships instead of keeping the nuclear family intact when there is constant fighting and tension.

That does not mean, however, that you should start dating like mad to find the next best spouse, or that the kids should be introduced to everyone you start to see.  There is no bright line rule that states how many months a person should date before introducing that individual to the children, but in my (not in any way trained in psychology) opinion, I think three months of steady dating is reasonable.

The new love interest should not attempt to fill in for the missing parent in any way, and should initially just try to be a great friend to the child.  Let the child decide how close he or she wants to be.

Respect for the child’s parents goes a long way in helping the relationship between the new girlfriend or boyfriend and the ex-spouse.  One of my big pet peeves is when the parent introduces the significant other to the children but not to the ex-spouse.  Assuming that there is no domestic violence in the relationship with the ex, these types of matters should be shared.  It rarely goes over well if the children start talking about daddy or mommy’s new “friend” and that parent had no idea that the ex was dating again, let alone exposing the kids to this person.  That usually sets off bells and whistles, with the “in the dark” parent wondering why exactly she hasn’t been kept up-to-date.

Despite how difficult the situation is, in general, the more open you are, the better the outcome.  Sometimes it’s painful to let your ex know what’s going on in your personal life, but if it impacts the kids, it needs to be done.  Besides, you are the adult – put on your big kid pants and take that first step.

Being Above the Law

Unless you live under a rock, you probably know that the US Supreme Court ruled earlier in the summer that gay marriage is now legal in all 50 states.  Celebration was pretty much country-wide, but of course there are those who do not disagree with the ruling.  Most voiced it on social media or to their friends, and then went about their lives.  However, Kim Davis, Rowan County, Kentucky county clerk, was willing to go to jail over it.

As one of her job duties, Davis has to issue marriage licenses, which bear her name and title.   When she got word that she would have to issue these to gay couples, she refused to do so because of her deeply held religious beliefs, sparking legal action, which ended up with her in jail. 

I do things I don’t want to every day – work, pay bills, eat healthy – but I still do these things because I really don’t see much of an alternative (minus the eating healthy).  I also live within the constraints of the law because the last thing I want to do is end up behind bars eating bologna sandwiches.  I fully understand and support standing up for what you believe in, but there has to be some limit to this in terms of what makes sense.

After being released from the pokey, Davis went back to work as she refuses to resign (shocking).  To avoid another stint in jail, she stated that she personally would not sign or issue any marriage licenses for gay couples, but she would not stand in the way of her deputy clerks issuing them, although she does not approve of this.  However, she wants the license to state that it was issued pursuant to a federal court order, as opposed to her authority.  In Kentucky, only county clerks can issue marriage licenses, and not the state itself, so there is not a present solution to this dilemma without a legislative change.  Davis’ refusal to issue the licenses as she should has led to speculation regarding the validity of the license itself.

Many see Davis as a hypocrite, given her three husbands, four marriages and set of twins born out of wedlock.  Her answer to this is that she has only recently renewed her faith and religion, and that God has forgiven her for all of these past faults.  This begs the question, if God forgave her past sins, and she thinks gay marriage is a sin, why isn’t that forgiven too?  She certainly seems to be living by the “forgive and forget” mentality, but apparently can’t extend this leniency to all people.

What does a hug cost?

When I think of prison, I don’t think of sunshine, palm trees and beautiful sparkly baubles (my preferred daydream items).  I toured a prison once, and even the weather cooperated for my general impression of living behind bars – stormy, dark and overall creepy.  I was, however, surprised at the amount of amenities and items inmates could buy, earn, or were simply provided.  For example, there was a soft serve ice cream machine that was available in the cafeteria area.  I wasn’t exactly expecting this Dairy Queen treat to be housed amongst some of our state’s most violent offenders.

A recent jury award of just over $1,000 to a Jackson, Michigan prisoner had me again questioning what is appropriate to allow prisoners when they are serving their time.  Convicted murderer Kevin King was awarded $1,251 from a jury, who found that his First Amendment rights were violated (the violation garnered him $1, and $1,250 was awarded for punitive damages).

Back in 2012, King’s dutiful wife came by for a quaint prison visit.  In case you were unaware, conjugal visits are not allowed in Michigan, so there shouldn’t be a lot of hanky-panky that goes on between visitors and inmates.  King claimed that a prison guard, with whom he had a bad relationship, refused to allow him and his wife to hug each other.

When serving a life sentence, you have all the time in the world to ponder what to do about this dilemma.  King is no stranger to firing off lawsuits relative to his treatment in prison, so naturally, the decision to sue came quite easily.  And this time, he won. 

I don’t think that prisoners should be deprived of all forms of intimate expression, because if we expect them to “reform,” they need to be able to feel love from family and friends, and know that there is a reason to change their behavior.  States that provide conjugal visits are hoping to keep relationships intact, in part to continue the support system for prisoners once they are released.

Hugs are something that I absolutely look forward to after a bad day, and I would say that when you’re in prison, you probably have a lot of bad days.  They can make you feel better both physically and mentally, and I doubt King’s attitude was improved after being told his hug was a no go. 

Assuming the hug was only going to be just that, it seems like it could’ve done much more good than harm in this case.  And let’s not overlook the fact that it cost a lot more than $1,251 to fight the lawsuit.