What Money Can Buy

Over Christmas break, I fell into the deep hole of clicking on every hyperlink and wasting copious amounts of time reading online (as one does). It’s probably no shock that I am drawn to legal topics, especially those that are off the wall.  During one such spiral, I learned that oil baron Henry Flagler used his wealth and power to have the Florida legislature enact a law allowing him to divorce on the grounds that his spouse was incurably insane.  

Flagler was thrice married, first to Mary #1, then Ida Alice and finally Mary Lily (aka Mary #2).  Mary #1 died at age 47 of poor health, which was an easy path to marriage #2.  However, in 1895 Ida Alice was institutionalized for mental illness at Pleasantville Sanitarium (a fantastic name for an insane asylum if you ask me).  

Back in the day, one could not divorce a spouse for simply being insane; accordingly, Henry used his moolah to make it happen.  According to a 1901 news article in the “San Francisco Call,” Flagler went to Miami with Judge Jones and Judge Raney, with Raney sponsoring a new law which allowed insanity to be grounds for divorce.  

Coincidentally, notice of Flagler’s intent to divorce Ida appeared in papers and was tacked to the courthouse shortly after the trio’s arrival in Florida.  Four years after the passing of the law, it was repealed, with Flagler being the only individual to be divorced under the law.

Rumors swirled that Henry and Mary #2 were involved pre-divorce, and their marriage a mere 10 days post-divorce seems to bolster that theory.  Flagler built her the opulent estate known as Whitehall, which is now the Flagler Museum.

Karma, however, had the last laugh.  Flagler fell down the steps at Whitehall and died shortly thereafter.

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.”

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.

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.

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.

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.

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.

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.

How much hash makes you smashed?

Everyone knows the basic concept of whether or not a person is illegally drinking and driving – he or she is over the “limit.”  Their bodily alcohol content, or BAC, is higher than what is legally allowed, and consequently, their driving is considered to be a danger to others based on their impaired state.  In Michigan, when a person’s BAC is 0.08 or higher, it is illegal to drive.

Representative Pamela Hornberger wants to create a similar law for marijuana – essentially, how much is too much weed to get behind the wheel.  While it is illegal to drive while intoxicated with drugs or alcohol, there is no clear definition of the limit of marijuana one can have in his system.  And let’s not forget you can drive like a looney toon but be completely sober and still face legal consequences (you don’t need to be intoxicated to be a lousy driver).

Fueled by the 2020 death of a girl who was hit and killed by an individual who driving with THC in her system, Hornberger is sponsoring HB 4727 in an effort to prevent more senseless deaths.  Michigan’s self-proclaimed “nerd” governor Rick Snyder formed the Impaired Driving Safety Commission to study the possibility of determining levels of intoxication as it related to THC.  In 2019, the Commission issued its report, which determined that “there is no scientifically supported threshold of…THC bodily content that would be indicative of impaired driving.”

The report referenced the difficulty in accurately determining impairment based on an individual’s blood concentrations of THC.  To just pick a number would ignore the impact of frequent users who must ingest more marijuana to achieve the same effect as a person who just started using.  THC levels can vary significantly from the time of blood collection versus the levels when the individual was actually driving.  It concluded that a roadside sobriety test was the best way to determined impairment.

The bill would create a limit of 5 nanograms per milliliter of blood when determining if an individual is intoxicated from the use of marijuana.  The 2019 report noted that Colorado, Montana, Nevada, Ohio, Pennsylvania and Washington all had impaired driving levels for THC.  Colorado, Montana and Washington share what HB 4727 proposes at 5 nanograms per milliliter.  Nevada and Ohio have a 2 nanogram per milliliter limit, and Pennsylvania is the lowest at 1 nanogram per milliliter.  Colorado adds a twist in that its limit is “a reasonable inference….[which] allows a jury to infer that a driver was impaired if his or her blood test result is 5 more ng/ml…but that inference can be rebutted by the defendant in legal proceedings with evidence to the contrary.”

As a definite number was not recommended in 2019, it will be interesting to see if the bill has any success given that it has only been two years since the commission’s report. While driving under the influence of any drug or alcohol can be illegal, it must be accurately quantified before the law should interfere.

Parents Lose Lewd Lawsuit

When my kids fail to pick up their toys or papers after repeated reminders to do so, I warn them that they may end up in the trash.  This generally prompts them to scurry around and throw everything into a dark corner in their closets, negating the threat for the time being.

Some parents have more backbone than I and follow through on their promises.  David Werking, a forty-something Michigan man, sued his parents for throwing out his – ahem- adult magazines, videos and toys – and won. When he moved into their Grand Haven home in 2016 following his divorce, his belongings came with him, including his special collection.  With a “my house, my rules” mentality, his parents warned him to not bring these items into their home.

David responded with a “you’re not the boss of me” attitude and moved in, provocative products and all.  When he moved out the following year, his parents shipped his things to his new digs.  Much to David’s surprise, his boudoir belongings were missing.

Determined to have the last scintillating word, David did what any rational son would do and sued his parents, alleging that the mature materials were worth a whopping $25,000.  His parents admitted to tossing what they apparently considered trash, and told the court that they had warned their son that they would throw the items out if he brought them into their home.  The judge dismissed their defense and ruled in favor of David, giving parents and son time to determine the damages.

A surprise twist in this already bizarre case is the fact that his parents kept some of the most offensive (in their opinion) items and placed them in a safe deposit box, fearing that they were illegal.  I don’t know if they did this to protect their son from legal trouble, or if they were keeping evidence to turn him in.  Either way, the police determined nothing was amiss and David was not charged.

Emails between father and son are quite entertaining, with David suggesting sites in the event his father was inspired by his son’s arousing assets.  His father’s response definitely points in the opposite direction.  The saying “like father, like son,” meets an exception in this family.

***UPDATE:  The Court ordered the parents o pay David $30,441 for his collection, and another $14,500 to his attorney.

Virtual Burnout

By nature, most humans want and need personal interaction with other humans.  Some might say that we have a herd mentality at our core, with a more refined ability to decide things for ourselves instead of following everyone else.  The pandemic has significantly restricted our ability to be physically present with others, and alternative methods of interaction and communication have increased dramatically. 

With the exception of some courts that are holding hearings in person, most are utilizing an online virtual platform like Zoom.  Many hearings are live streamed on You Tube channels as well.  In addition to conducting business virtually, parents may also have to assist their children with virtual school and appointments.  Burnout has always been an issue in the employment arena, and in 2019, the World Health Organization included it in a revision of the International Classification of Diseases, specifically listing it as an occupational phenomenon.  It is defined as “…a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed.  It is characterized by three dimensions:  feelings of energy depletion or exhaustion; increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and reduced professional efficacy.”

I have noticed increased frustration with the use of virtual meetings and hearings.  The internet connection is unstable, audio isn’t working, a party has to call in instead of using video, which means he or she can’t see the screen sharing.  Going back and forth into breakout rooms, especially when swapping back between the main session and the rooms, can be tricky.  Everyone, including me, wants a big, blinking red button that screams “CLICK HERE!” to make transfers easy.  When the technology becomes confusing or difficult, it raises tensions in the room, which can lead to breakdowns in productive communication.  As the stress and frustration build, burnout can take over.

When hearings are held in person, there are few distractions.  You are relatively isolated from the rest of your life when you are in a courtroom, minus what business you can conduct on your phone.  Focus is improved, and it is easier to realize there is one task in front of you.  You can give your full attention to that task, and I believe people are more mindful of others when they are physically present. It’s hard to effectively express emotions over a computer – somehow even the best attempts often fall short.

While meeting virtually is more convenient (who hasn’t enjoyed the decrease in traffic and gas costs), it can be taken less seriously.  When you attend court in person, you have to get dressed, drive, pass through security, and sit in an imposing courtroom.  There is a sense of decorum that a courtroom possesses, and people tend to respect that.  Virtual courtrooms do not foster that same atmosphere.  People literally appear undressed for hearings and lay in bed yawning throughout the proceeding.  It’s a complete unknown as to what a viewer might see in the background during a call, and that can be on both sides.  Children run in and out of the room and dogs incessantly bark at all the wrong times.  These things don’t happen when court is held in person.

Sometimes everyone can laugh about the ridiculous things that occur.  But after a while, many are simply “over it.”  Jobs are hard enough, and a pandemic that changed how almost everything worked has been extremely stressful.  We must adjust our routines to accommodate the hiccups that occur virtually.  Taking breaks more frequently or making them 15 or 20 minutes instead of 10, allows participants the chance to take a walk outside or eat a snack without suffering from heartburn an hour later.  Knowing when the distractions are too much and continuing a different day is sometimes necessary.  It does no one any good to continuously stop and ask someone to repeat themselves because their connection is going in and out.

I think it’s most important to recognize that we are tired.  We are all tired of the pandemic and the chaos that it brought to the world.  It’s normal to feel this way and simply recognizing that when hearings become troublesome is helpful.  Acknowledging virtual burnout can ease stress, diffuse anger, and open perspectives, drawing people back to the present task at hand.  While we may be sitting on different sides of the table, we are all human.

 

Employment doesn't define your parental role

In the to be published case of Bofysil v Bofysil, the Michigan Court of Appeals provides a great reminder that we should not assume a diminished relationship between working parents and their children.  It also sets forth in great detail almost any legal definition and case law an attorney could need relative to established custodial environment and burdens of proof.

The case hails from my old stomping grounds of Jackson County, and involved a relatively short-term marriage between Bridget and Sarah Bofysil.  They had one minor child, who was born in 2016.  Like most marriages, each parent had different duties, with Sarah being a stay-at-home mom, and Bridget working full-time.  The lower court spent considerable time detailing the tumultuous relationship between the parties, which included substantial arguing, calling their text messages “as vile as any communications the Court has seen between two parents.”

The lower court awarded sole legal and physical custody to Sarah, noting that while the court preferred joint legal, it appeared impossible for the parties to effectively make decisions together.  It focused on Bridget’s “harsh and abusive communications…[which] demonstrated that she is incapable of co-parenting.”  The Best Interest Factors were considered by the trial court, finding almost exclusively in favor of Sarah.  Her role as the stay-at-home parent was greatly highlighted, downplaying the parental role performed by Bridget.

The Court of Appeals called out specific testimony which showed that while working full-time, Bridget carried her own weight as a parent, even mentioning Sarah’s corroborating testimony.  While the lower court found that the established custodial environment existed solely with Sarah, the Court of Appeals’ examination determined that the evidence did not support this, and that Bridget’s full-time employment resulted in her being treated by the lower court “as less than a full parent.”

The appellate court called out inconsistencies in the findings – Bridget had began a new relationship since the parties separated, and this was used as a strike against her – however, Sarah was married when she and Bridget began their relationship, which did not appear to be taken negatively.  Similarly, no credit was given to Bridget for providing income and health insurance for the minor child, but Sarah was found able to meet the child’s financial needs with child support.

Relative to legal custody, there were indications that the parents had agreed on major decisions regarding the child in the past, and the Court of Appeals noted that the use of computer programs, or the more simplistic notebook exchange, can temper parties’ communications amd reduce  hostility while co-parenting.  The case was remanded for reconsideration on legal custody, requiring the lower court to consider “alternative communication methods.”

I’d recommend family law attorneys bookmark this case, if only for the fantastic case law contained within it.  Additionally, it reminds us that employment both inside and outside of the home does not define your worth as a parent.

Imputation Factors Get a Facelift

Along with the new year comes the new 2021 Michigan Child Support Formula Manual.  One of the more substantial changes to the formula manual, which should remain in effect for the next four years, is the modification to the imputation factors, which can be found in section 2.01(G).  The formula refers to it as “potential income,” which is when “a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn…, subject to that parent’s actual ability.”  I like to call it “pretend money.”

 

The formula continues to maintain that potential income should not exceed 40 hours a week, nor include potential overtime or shift premiums.  If an individual is employed full-time, which is 35 hours or more per week, imputation is not appropriate.

 

There are 11 factors that need to be considered when assigning an individual potential income, and include things such as education, job experience and physical health.  The 2021 formula clarifies these to provide for a more detailed picture of the person’s actual ability to earn a living.  It adds earnings history as necessary information, which makes sense since the court will be assigning an actual number as the person’s “income” and using that in the child support calculation.

 

The formula also focuses on more socio-economic factors, adding considerations for literacy, residence, age and health.  For obvious reasons, an individual who struggles with literacy will have less job opportunities available to him, and many do not freely admit to these types of difficulties.  Now that the court will have to inquire, hopefully more people will feel comfortable sharing their literacy level so it can be taken into consideration.

 

The 2017 formula manual looked at an individual’s ability to drive and access transportation, and the 2021 manual retains those questions, as well as adding an inquiry into that parent’s residence.  Recognizing that homelessness, or an unstable residence, impacts one’s ability to work is an important step in evening the playing field when calculating child support.

 

If a person is imputed income, the court can also consider potential daycare costs (for the children in the case).  Some parents specifically choose not to work because daycare costs would exceed their paycheck, and it is important to factor in the costs they would incur if they were employed.

 

As the manual reminds its readers, failure to articulate how each factor applies to the imputed income, or state that it is inapplicable, is a violation of case law.  While the modifications to the factors were not large in number, they will make a substantial difference in recognizing the inequities that exist in society.