Texas judge is playing a dangerous game

The saying that “everything is bigger in Texas” shouldn’t apply to the firearm freedoms that domestic abusers enjoy, but that could be the reality based on a recent court ruling. Many personal protection orders sought on behalf of domestic violence victims prohibit the abuser from possessing or buying firearms, for obvious reasons. This can cause issues if the individual is required to carry a weapon during his or her employment, but the overall protection from intimate partner violence should take precedence.

The 2022 US Supreme Court decision New York State Rifle and Pistol Association, Inc., et al., v Bruen, was based around New York state licensing laws that required citizens to prove an additional “special need for self-defense” to publicly carry a firearm. Ultimately the Supreme Court held that the requirements violated the Constitution’s Second and Fourteenth Amendments.

Most states operate under the presumption of granting a person a public carry license as long as specific criteria are met; however, a handful of states allow for discretionary denial of the license, even if the criteria have been fulfilled.  In Bruen, the Supreme Court held “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct….Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside of the Second Amendment’s ’unqualified command.’ ” Its historical research of firearm possession solidified the Court’s position that it was a right afforded to citizens prior to the Second Amendment. Basically, the application of the Constitution must be extended to circumstances that may not have been envisioned by its authors.

David Counts, a judge for the Western District of Texas, used the ruling in Bruen to justify his decision to find federal law 18 USC Section 922(g)(8) unconstitutional and in violation of the Second Amendment. This law criminalizes the possession of a firearm by an individual subject to a domestic restraining order. The defendant in Counts’ case had a Kentucky family court restraining order in effect against him, and was charged for violating the federal statute as he possessed a firearm while being subject to the restraining order. In applying the Bruen case, the judge determined that the federal law did not comply with the historical understanding of the Second Amendment, noting that the government rarely removed firearms from an abuser, or interfered in these types of family disputes.

While Counts acknowledged that a piece of paper does not stop abusers from abusing, and “states should punish abusers with the full force of the law,” he granted the defendant’s motion to dismiss the indictment.

The takeaway here is that our government has done a poor job at protecting domestic violence victims, historically, and now.  It isn’t 1791, and people aren’t walking around with muskets and flintlock pistols. Yes, more protections exist now than in the past, but shouldn’t we be striving to make the world safer for those at the most risk? These types of rulings put power, intimidation and guns back into the abuser’s hands, especially when the victim believes the court won’t keep him or her safe. Instead, what victims see is the court is playing Russian Roulette with their lives.

Zoom court is still court, even for the judge

Many people forget that attending Zoom court is still court. It may not have the pomp and circumstance like the wood and marbled courtrooms, but the rulings and sentences are still the same. I’ve seen my fair share of questionable outfits (or lack thereof), and interesting places that people camp out for their appearance in court. My favorite was a bathroom, and I had to ask the party if he was there to do business or just find some peace and quiet. Luckily, it was the latter (allegedly).

In Columbia, it appears that even judges are not immune to poor outfit and location choice, as Justice Vivian Polania was recently suspended for three months due to holding court in her underwear in bed, while smoking a cigarette. I mean, if you’re going to be this reckless, go big or go home.

Apparently Polania is well-known for posting provocative pictures of herself on her Instagram, so the thought of her holding court in bed, half-dressed, isn’t a big stretch of the imagination. Her social media posts have prompted disciplinary investigations in the past, but she remained undeterred and upped the ante with the recent antics. Her suspension is unpaid, so who can blame a girl for a little side hustle?

The online video of her during the hearing shows her semi-awake in the middle of a yawn. To double down on the questionable behavior, Polania slurred her words and turned off the camera at one point, perhaps realizing that her appearance wasn’t the most judge-like. Even more disturbing is the seriousness of the hearing she was presiding over at the time – whether bail should be granted for a man accused of a car bombing.

Her response to why she appeared in such a state was that she was suffering from an anxiety attack and had low blood pressure. Polania stressed that she will not change her personality to align with other people’s expectations. Clearly she is an unconventional judge, but that shouldn’t be synonymous with unprofessional.

Attorney Referees Explained

 

What exactly is an Attorney Referee at the Friend of the Court (FOC)? Much like the “Stars – they’re just like us!” columns in the tabloids, we are people just like you (except with JDs and an overwhelming desire to wear black and white striped jerseys). Attorney referees have a special function, if I do say so myself, in the judicial system. We act in a quasi-judicial fashion, meaning we can play pseudo judge, conducting hearings and issuing orders.

Keep in mind that this is just a general overview of what functions referees may perform, and each county usually has its own tweaks to the assigned duties. At the FOC, referees are used for hearings on all motions in domestic relations cases, except for increases or decreases on spousal support as that topic is not within the scope of the statute (see MCL 552.507). Most hearings are set by way of a referral directly from the court after a party files a motion, and some stem from administrative reviews of child support that a party has objected to. We also conduct joint meetings and mediations.

During referee hearings, testimony is taken from the parties and witnesses and the referee issues a recommendation and proposed order on the contested issues. Depending on the circumstances, a referee may be able to issue an interim order for the parties to follow as they wait out the 21 day objection period on the recommendation.

If a party properly objects, the judge determines what happens next. The court can adopt the referee’s recommended order in whole or in part, grant the relief the objecting party is asking for, or hold a new hearing with the judge.

Some referees will give the parties an opportunity to settle the matter prior to conducting the hearing, which offers a less litigious option. Most parties prefer to maintain control over their lives instead of having a stranger like the referee or judge, decide what they will do. The parties may not like or love the agreement, but they know they can live with it. Putting an end to the fighting also helps put an end to attorney fees. If the parties can reach a consent, it is often drafted into an order and forwarded to the court for entry at the hearing, allowing them to have resolution the same day.

Other common referee duties include approving orders before they are entered with the court to ensure that they comply with the law and are processed properly. We provide legal assistance to the office, confer with judges and their attorneys, and prepare motion dockets. In some counties, referees work both the family and juvenile docket, while others are limited to one area.

While we may not blow a whistle for misconduct on the field, we try our best to level it for everyone.

Hague Convention explained

 One of the least understood provisions that is contained in a good chunk of family law orders is the Hague Convention language, which is codified in the statute MCL 722.27a(10). It states: “Except as provided in this subsection, a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. This subsection does not apply if both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.”

Like many laws, it’s a mouthful, and a fair amount of people don’t know what the Hague Convention on the Civil Aspects of International Child Abduction is. In October of 1980, various countries joined the treaty to create a process to ensure that children who were wrongfully taken from their home country were returned to their home country.

Countries have continued to join the treaty throughout the years, which is an extremely positive step in ensuring that court orders from other countries relative to custody and parenting time will be respected around the world. Because countries are sovereign nations, they basically stay out of another country’s legal business. However, when a child has been abducted, and when the abduction has taken him to another country, it is important for the various nations to work together to resolve the abduction quickly.

The Michigan statute prohibits either parent from taking the minor child to a country that does not participate in the Convention to prevent abductions to countries that won’t help the United States get the child back. The exception is that parents can agree to the travel if they provide their written consent to the court to allow it. Family visits and vacations are the most common reasons for parties to travel to a non-Hague country.

If you are planning on taking a trip out of the US, it’s best to be proactive and double check that your destination is on the list of treaty partners. You want to take the kids to see the Great Pyramids in Egypt? You will need written consent to see the Sphinx because Egypt is not a Hague partner. But if your cruise stops in Jamaica, don’t worry, it joined the Convention in 2019.

An official list of the treaty countries can be found at the US Department of State’s website, https://travel.state.gov, by clicking on “International Parental Child Abduction” and then the subsection of “Country Information.” Safe travels!

What legal custody means for your child's education

With the new school year looming, or already underway for some, here is a helpful reminder about what legal custody means in relation to your child’s education. There are two types of legal custody: sole legal custody and joint legal custody. The same applies for physical custody; however, more courts are choosing not to award or recognize physical custody in orders, as it does not control when a parent sees their child and is often considered an antiquated term.

Interestingly, there is not an actual legal definition for the term “sole custody,” but it is used to indicate that only one parent has the decision making authority for the child (legal custody), or when the child resides primarily with and is mostly cared for by one parent (physical custody).

Joint custody is defined in MCL 722.26a(7)(a) & (b): “…an order of the court in which 1 or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.” The court must consider awarding joint custody if either parent requests it, and among other things, it looks at whether the parents can cooperate and agree on decisions for their child.

Legal custody is what comes into play when determining your child’s education. If the parties have joint legal custody, they must agree on where the child attends school, and if they do not agree, they can file a motion with the court for a determination. As you’d imagine, the courts see a flurry of these motions as soon as summer rolls around, as the parties want to sort it out prior to the new school year.

If one parent has sole legal custody, then the school decision rests only with that parent. Generally, the other parent has a right to know where the child goes to school, and if the sole custodial parent wants to involve the other parent in the decision, there usually isn’t anything stopping them. However, if they don’t agree on the school, the parent with sole legal custody has the final say.

Sole legal custody does not prohibit the non-custodial parent from participating in school activities, although other court orders may, depending on the nature of the parties’ relationship (i.e., domestic violence, personal protection orders). MCL 722.30 specifically provides a noncustodial parent with access to the child’s records, including medical, dental, school and daycare, stating “Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child’s custodial parent, unless the parent is prohibited from having access to the records or information by a protective order.”

If you and your child’s other parent do not agree on school choice, check your court orders for the legal custody award and determine whether you need to take legal action.  As they say, knowledge is power.

Suspension of parenting time requires reviews

Suspending a parent’s right to parenting time is one of the most difficult events that can happen to both parents and the children. The children and parent are no longer allowed contact until the court orders that it is in the child’s best interest to reestablish parenting time, and this can dramatically change the relationship between the child and estranged parent. Generally, this places the entire responsibility of caring for the kids on the parent who did not have his or her parenting time suspended, which causes extra strain financially, physically and emotionally.

In 2018, the Michigan Court of Appeals released a published decision, Luna v Regnier, 326 Mich App 173, which addressed suspension of parenting time and what legal follow-up needed to happen.  In this case, mom and dad had three children, two of whom were still minors when the appellate court was involved. Allegations of neglect necessitated Child Protective Services (CPS) involvement and the children were placed in foster care for a time.

Eventually, dad was awarded sole legal and physical custody with mom receiving supervised parenting time; however, as time went on, the trial court ruled that mom’s parenting time was suspended “until the minor children requested contact with [mom].” Mom appealed the ruling, arguing that there was not enough evidence for the court to determine she was a danger to the kids, but the Court of Appeals disagreed and affirmed the lower court’s decision to suspend her parenting time.

However, the appellate court remanded the case so that the trial court could conduct periodic hearings to determine if mom should have parenting time in the future. The court summarized its reasoning very clearly: “Without a mechanism for further review, [mom’s] parental rights are effectively nonexistent.”

Maybe things won’t change, and the reviews will result in more of the same. But if the court gives up on a parent, they have very little incentive to do better for themselves or their children.

Avoiding mistakes when dealing with the court

Navigating family law through the courts has a reputation for being slow, complicated and gender favorable. Part of this is because family law is, by its nature, messy. It is made up of litigants who are good people going through the worst time of their lives, which heightens emotions and with it, bad behavior. The high stress environment can increase errors by all involved. 

Much like Smokey Bear’s advice that we too can prevent forest fires, litigants can help prevent errors in their case. The first and best way to do this is to show up.  Show up to every court date, every Friend of the Court (FOC) meeting, every mediation, every everything. When you fail to appear, your side of the story will not be told or heard. Don’t count on getting a mulligan because you forgot, or the time was inconvenient. The likelihood of accuracy greatly increases when all the information is known. 

Keep your address and contact information current with the court and FOC at all times. If you represent yourself and the other party has an attorney, let the attorney know of changes as well.  Without current contact information, you will miss out on receiving notice of court dates, orders and other important documents. When you don’t receive notice, you can’t participate, and as we know, showing up is the #1 rule. 

Read the fine print.  If you don’t understand something, ask. By signing an order, you are representing to the court that you read it, understand it and intend to abide by it. Trust me, you won’t be the first person to be confused by legalese, nor will you be the last. 

If there is a time limit for you to object to a recommendation, reply to a pleading, or anything else, follow it. Complaining about a mistake after this period has expired is likely to get you nowhere. Objecting to recommendations by the FOC, turning in questionnaires and supporting documents, filing briefs and exhibits and submitting parenting time denials are just a few of the things that are limited by periods of time. This can result in orders being entered that in your opinion, may not be accurate, because your information was not provided and not considered. 

Finally, follow court orders. Not doing so is an error on your part. You don’t have to love the court order, or even like it, but it is an order that needs to be followed until and if it is changed by a subsequent order. Either party can file a motion to change an existing order and let the court know why it needs to be modified. While this may not result in the moving party receiving the result he or she wants, proper procedure has been followed and an attempt to correct the perceived error has been made. Blatantly refusing to follow a court’s order doesn’t help your position when and if you try to change it. 

These tips are not fool-proof ways to ensure bliss when dealing with family court, but they certainly will improve your chances.

Injunction issued against Michigan’s antiquated abortion law

With the unprecedented leak of the US Supreme Court’s draft opinion that would overturn Roe v Wade, states are scrambling to address the legality of abortion, both for and against. Michigan is no exception, and has its own law from 1931, which criminalizes abortion, regardless of whether the pregnancy stemmed from rape or incest. Abortions were banned unless they were necessary to save the mother’s life, as was advertising or selling abortion medications (MCL 750.14 & 750.15). When Roe went into effect in 1973, Michigan’s law became unconstitutional and largely forgotten about.

If Dobbs v Jackson Women’s Health Organization overturns Roe, Michigan’s almost 100 year old law could be given new life.  The national protection and right to an abortion would vanish, and each state would be able to make its own decision. Planned Parenthood has sued Michigan’s attorney general, arguing that the 1931 law is in violation of Michigan’s constitution.  This week Judge Gleicher, Michigan Court of Claims judge, issued a preliminary injunction against the 1931 law, as she believes that the Planned Parenthood lawsuit will be successful.

Had the injunction not went into effect and if Roe was overturned, Michigan’s law would eliminate the right to an abortion unless the mother’s life was in jeopardy. Governor Gretchen Whitmer has filed a lawsuit claiming that the due process clause of Michigan’s constitution protects the right to an abortion. As the law is regulating a woman’s right to bodily autonomy, and not a man’s, it is also argued to be in violation of the equal protection clause. Michigan’s attorney general has already stated that she would not be enforcing the 1931 law; however, prosecutors in various counties have indicated their intent to uphold the law should it no longer be void.

Many view the injunction as a temporary victory and call for the Michigan constitution to be amended to specifically include the right to an abortion, leaving no doubt about the legality of the medical procedure. With the potential for Roe to be overturned, states would be wise to continue their efforts to update their laws.

Keeping Your Private Information Private

Despite being effective April 1, 2022, the new court rule requirement concerning privacy is not an April Fool’s joke.  Michigan Court Rule (MCR) 1.09(D)(9) provides that certain information which identifies a person cannot be included in any public court document, or any attachments, except as stated in the rule.  “Personal identifying information” is protected and includes:  birth dates, social security numbers or national identification numbers, driver’s license numbers or other state ID, passport numbers and financial account numbers.

At the start of most family law cases, parties must file a form called a Verified Statement, which requests much of the above personal information.  However, because that form is not placed in the public court file and is kept in the Friend of the Court’s confidential file, parties can provide this information when completing it.

Other forms created by the State Court Administrator’s Office (SCAO) may ask for personal identifying information, and the parties may have that information removed if it is not required by law. It will remain on the form if required or kept confidential. In my opinion, court orders regarding children are the number one place where parties and attorneys provide protected information, as they often state the children’s dates of birth. It will likely take a while to get out of this habit.

So, who is responsible for ensuring that your personal deets don’t end up splashed across your court record?  You and your attorney.  In section 10(a) of the court rule, it states: “The responsibility for excluding or redacting personal identifying information listed in subrule (9) from all documents filed with or offered to the court rests solely with the parties and their attorneys. The clerk of the court is not required to review, redact, or screen documents at time of filing for personal identifying information, protected or otherwise, whether filed electronically or on paper. For a document filed with or offered to the court, except as otherwise provided in these rules, the clerk of the court is not required to redact protected personal identifying information from that document, regardless of whether filed before or after April 1, 2022, before providing a requested copy of the document (whether requested in person or via the internet) or before providing direct access to the document via a publicly accessible computer at the courthouse.”

The clerk can redact the protected information at its own discretion, and if the court creates a document which contains any of the information after April 1, 2022, it must be redacted before it is made public. Websites that are publicly accessible cannot contain any of the protected information either.

The take home message from this article:  proceed with caution when filing court documents. If you want more information on this topic, you can visit the Michigan Courts website at courts.michigan.gov.

Lesser Known Child Support Formula Provisions

With tax season upon us, money remains at the forefront of many people’s minds and it seemed like an opportune time to touch on some of the lesser known provisions in the child support formula. Below are some provisions from the 2021 Michigan Child Support Formula Manual that clients are most surprised by.

When the court is calculating income, it can include “perks” that the parent receives through his or her job, as long as the parent did not pay for it, it reduces personal expenses, is received regularly and/or is significantly valuable.  This can include a company car that the employee can use personally, mileage reimbursement, housing monies and food.  However, it does not include tuition reimbursement, HSA contributions or uniforms.

If your long-lost relative left you an inheritance, the property or principal from the inheritance (or one and done present) is not usually considered income, but the interest and potential interest earned on it can be.

Similarly, if you have a really nice family member or friend who likes to bestow gifts upon you in the form of cold, hard cash, food, shelter or a car, the value of those items may be considered income.  If great aunt Martha lets you live in her semi-finished walk-out basement rent free, that could come into play when determining child support. To be considered, these items also should reduce your personal expenses or “[replace] or [supplement] employment income.” However, gifts from a current spouse do not apply (so keep buying your wife jewelry guys).

The court can include the cost that a parent’s spouse pays for the children in the case to be covered on the spouse’s health insurance, with the manual allowing “amounts paid by the parent’s household as the parent’s premiums paid to insure the children.” If the court orders that the insurance be covered in this way, the parent is “required to purchase coverage immediately should the alternative coverage stop” (for example, if the new spouse lost his or her job and therefore the insurance coverage, or if they later divorced and the children could no longer be covered). If the spouse provides insurance for the parent in the case, that parent does not receive the self-coverage credit.

Money that is received from either parent or the child that is Supplemental Security Income (SSI) is not includable in the formula as income, nor can it be used to offset the child support amount like Social Security Disability (SSD) income can. SSI, along with TANF funds, food stamps and the Federal earned income credit, are considered forms of “means tested income” and are not used in the formula. Any monies received by a parent for a child that is not the child of the case is not considered (for example, child support for an additional child by another parent, SSD benefits for children not of the case).

The formula manual and its supplement are large and complicated, and things are often overlooked, so hopefully this eliminates some of the confusion. Surprises are only fun when they sparkle.

For reference, the formula manual provisions detailed in this article are the following sections: 2.01D(1) & (2); 2.01L; 2.04A; 2.05A, B & C; 2.07F; 3.05B(3) & 3.05C(c).

Don't quit your job to avoid child support

Thanks in part to the pandemic and employment changes, child support is a hot topic in the courts right now.  When I came back to work after the 2020 shutdown, I was overwhelmed by the number of new pleadings requesting a change in child support, and it really hasn’t slowed down.  Businesses are short staffed and hiring signs are everywhere – I even got an application in my kids’ Happy Meals the other day (due to child labor laws, they won’t be able to apply, and will continue to live rent free).

Along with employment changes comes the misconception from parties that their income will be put at zero for child support calculations if they aren’t working.  While this can be true in some cases, many people have the ability to work and the Michigan Child Support Formula (MCSF) Manual takes this into account. Imputation is used in many cases where someone is unemployed, but not prevented from working. 

The court can use unemployment benefits as a person’s source of income for purposes of calculating child support. However, if those have run out, and the individual is still unemployed, we can assign them potential income – income that the courts believe he or she could be earning.  The MCSF sets forth factors to be considered when imputing an individual, and  imputing a second job when a person already works 35+ hours a week is inappropriate, as well as imputing overtime. Imputation can also be used when a person is “underemployed,” or voluntarily reduces his or her income.  If a person quits his or her job to avoid paying child support, the court can (and likely will) assign them potential income.

Among other factors, the formula considers the imputed person’s education, disabilities, access to transportation and criminal history. Even if there are some concerns with the factors, it doesn’t completely rule out assigning potential income – it will just be adjusted and take into account any issues the person has. If income is imputed, potential daycare costs (for the child in the case) may be included in the calculations.

Since many employers are now paying over minimum wage, with options for same day pay and bonuses, it’s becoming more difficult for individuals to argue they can’t find employment.  While imputation isn’t perfect, it is helpful in ensuring child support is properly charging, and motivating individuals to gain employment or keep their current job.

New Year, New Laws

With the new year upon us, bills that were delayed in becoming laws are beginning to take effect.  One that received overwhelming support – the repeal of the “tampon tax” – is effective February 3, 2022.  Feminine hygiene products, or period products, are expensive, and manufacturers charge a pretty penny knowing that they are a necessary purchase. Thanks to the new law, these items will no longer be subject to Michigan’s 6% sales tax, helping reduce the already tight budgets of many.

Switching gears, Michigan International Speedway, a long-established mecca to NASCAR fans, will be allowed to sell liquor if it holds at least two days of motorsports events each year.  This is down significantly from the previous requirement of seven days and is in response to the COVID-19 pandemic which prompted cancellations of all sorts of events. If there is one activity that goes along with NASCAR, it’s drinking, and fans will be happy to know they can still have that beer even with reduced races. And as I mentioned in my October article, a second chance law for drunk driving offenders takes effect later this month.

There is now a required criminal background check for individuals who are working with senior citizens. The law has retroactive effect to October 1, 2020, and applies to new and existing employees, subcontractor and subcontractor employees, as well as certain volunteers who have more personal contact with senior citizens. The checks must be updated every three years, as some employees may be less than forthcoming with new legal troubles.

My personal favorite is the law that lets people renew their vehicle registration for two years instead of one.  As time consuming as it is to go to the Secretary of State office, or use its website, I am more than happy to delay this activity to every other year. This law doesn’t go into effect until this October, which leaves most having to do another two years in a row unless they are late fall/early winter birthdays. Even so, I’ll take it.

Hopefully these new laws and others will bring a welcome change for 2022.