Parenting Time Factors, Part Uno

I have seen more sun in the last few weeks than I’ve seen for about five months, which is a reminder that summer is coming faster than we think.  In the family law world, this also means that plenty of parents are gearing up for their often extended summer parenting time.

Naturally, there is a statute in Michigan that provides the court with factors to look at “when determining the frequency, duration, and type of parenting time to be granted.”  MCL 722.27a(6)(a-i).  The first five factors will be examined in this article and the next four in May. 

The first factor is “[t]he existence of any special circumstances or needs of the child.”  This can apply when your child has a physical or mental disability which requires frequent therapy, hospitalizations, doctor appointments, etc. that would make it difficult for parents to have equal parenting time or parenting time during the week.  Most parents are fortunate enough not to have this factor apply, but it certainly does come into play when your child has special needs.

“Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing,” is the second factor.  This one really irritates my male clientele when their children are babies because many believe that their ex should be required to pump her breast milk and give it to the father to use during parenting time.  Often the father’s belief is that if this were required, and he was provided with all of the milk the baby needed, nothing would prevent him from having equal parenting time with the infant.  However, the courts will still consider the fact that only mom can provide this type of nutrition and therefore the child has to be physically present in her care more often than dad’s.

The third factor is “[t]he reasonable likelihood of abuse or neglect of the child during parenting time.”  Clearly if there is a realistic chance that the child will be harmed while in the care of a parent, parenting time needs to be limited, supervised or all together suspended.  Past instances and evidence of abuse, including photos, police reports, valid protective services claims and the like are often used to show that this factor is relevant to a particular case.

Factor four ties into three – “[t]he reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.”  If there was domestic violence in the parents’ relationship, and they are frequently swapping the kids for parenting time, it stands to reason that increasing contact with each other in turn increases the possibility that domestic violence could erupt during the exchanges. 

Traveling for parenting time is also a significant consideration, especially with more parents having to move away to find better or any employment.  Specifically, the statute states:  “The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.”  If the parents live a significant distance apart, whether in the same state (think about the UP in Michigan), or in different states, putting junior on a plane or through a 4 hour car ride one-way isn’t always going to be feasible.

In these cases, it makes more sense to offer the parent longer periods of parenting time so that junior is not constantly trapped in the car, missing out on sleep and school events.  Instead, the child can spend more time in one place, but less frequently, to cut back on issues with travel.

Most people agree that parenting time should change as the kids age and change, and the above five factors are only some of the statutory factors the court may consider – keep a look out for the last 4 in May!

Tax time and the kiddos

Since my dog Verdict was born on April 15, I always remember her birthday and tax day, the former of course being a much more enjoyable holiday to celebrate.  She wanted me to tell you that all birthday treats, bones and toys can be sent directly to her, “Verdict,” care of my office.

When tax day rolls around each year, clients become concerned about who gets to claim Tommy as an income tax dependency exemption.  It is often a disputed subject during the divorce as the exemption can provide significant financial benefit to a parent.  Since 1985, the IRS mandates that the custodial parent receive the right to claim the child’s exemption, unless the custodial parent has voluntarily agreed to release the exemption to the non-custodial parent in writing.  Plenty of parents do agree to alternate the exemption each year if there is just one child, or each parent takes one child if there are two children, etc.

IRS Form 8332, “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent,” is the form that the parent needs to fill out.  Part 1 provides for the release of the exemption for the current year only.  Part 2 of the form provides for the release for all future years relative to that child’s exemption.  Part 3 allows for the revocation of the release of that claim.  To check out the form yourself, go to http://www.irs.gov/pub/irs-pdf/f8332.pdf. 

All of my Judgments of Divorce or other orders incorporating language about the child’s income tax exemption require the parents to cooperate and fill out this form as it needs to be filed simultaneously with the non-custodial parent’s income tax return.  The IRS provides for exceptions to this depending on the date of your judgment or agreement, and if the language complies with what it deems to be “substantially similar to Form 8332.”

Another common question that arises is whether or not the client can change the judgment’s terms regarding which parent receives the exemption.  Well, that depends on what the judgment states.  Per Fear v Rogers, 207 Mich App 642 (1995), the child’s tax exemption can be treated as part of the support provisions of the judgment or the property division provisions of a judgment.  The Fear court stated that the exemption normally should be considered part of the child support award in a judgment, but the court “was not persuaded that the federal income tax dependency exemption is so intricately related to child support that it would be appropriate to preclude parties to a divorce action from ever choosing to treat the income tax dependency exemption as a property issue rather than a child support issue.”  Id. at 646.

So, it boils down to where the language is contained in your paperwork.  If it is contained within the child support section, it is modifiable.  Some reasons for modifying the exemption award would be a change of custody or parenting time – if the original parent awarded the exemption in the judgment no longer has custody, the parent who now has custody should be awarded the exemption. 

If the language is contained within the property division section of the judgment, then it is treated as part of the property settlement, making it non-modifiable, absent an agreement between the parties to change it. 

Wherever I place the exemption provision in the judgment I specifically state that both parties understand that the provision is either modifiable or non-modifiable in the future, so that everyone is on the same page and doesn’t gripe that they had no idea whether or not it could be changed (although to be honest, the griping will likely occur regardless).

Be sure to check out where your income tax dependency exemption is contained in your paperwork and if applicable, complete IRS Form 8332 as this can save you from a headache when it comes around to tax time each year.  I think we all agree that tax season causes enough strife as is.

Very interesting article on surrogacy and Michigan

http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html?hpt=hp_c1

Hague Convention on Civil Aspects of International Child Abduction

Plenty of parents express fear that their child’s father or mother would withhold the child from the other parent, or sneak out of the state or country with the child, never to be seen from again.  Most of the time, this does not happen, but if it does, it’s generally across state lines where authorities can more easily locate and reunite the child with his mother or father.

However, we have all heard the horror stories that are plastered across the internet where a parent takes his children to visit relatives in a foreign country, never to return.  The aggrieved parent flies out to that country, displays legal paperwork and begs for help at every embassy she can think of, only to be turned away because the country’s officials won’t recognize these documents as official.

In an effort to prevent and rectify international parental abductions of children, a myriad of countries have agreed to abide by the terms of the Hague Convention regarding international child abduction.  The objects of the Convention on the Civil Aspects of International Child Abduction, which concluded October 25, 1980, are “a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”  See Chapter 1, Article 1 of the Convention.

However, not every country abides by the terms of the Convention, which is something American father Colin Bower knows all too well.  In August 2009, Bower’s ex-wife, an Egyptian and British citizen, took the couple’s two sons to Egypt and has refused to return them to Bower, who has sole custody of both boys.  Because Egypt is not a party to the Hague Convention on Child Abduction, the cooperation of the country is pitiful at best.  While Bower has been allowed a few supervised visits with his children, he is still being prevented from taking them back to the United States. 

A full list of those countries who are convention partners can be found on the website:

http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html#.

Michigan’s parenting time statute, MCL 722.27a, has recently been amended to require specific language be contained in all parenting time orders relative to international child abduction.  The orders must 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.”  However, this 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.”  See MCL 722.27a(9).

To some people, a piece of paper means nothing and no amount of language can actually prevent something from happening in cases like this.  If people abided by all court orders, I would probably be out of a job.  However, amending the parenting time statute is an important step that Michigan lawmakers have taken to recognize the serious issue of international child abduction, and it will hopefully cause parents to think twice about any actions they may take.

Interesting article on protecting what you send electronically!

http://www.cnn.com/2013/02/04/tech/mobile/breakup-data-precautions/index.html?hpt=hp_c4

Same-sex marriage and the law

Brangelina told the world that they wouldn’t get married until everyone could get married, including people of the same sex.  Based on their engagement and soon-to-be wedding rumors, it sounds like they can’t wait that long.

In 1996, the Defense of Marriage Act (DOMA), 1 USC §7, was passed by the Federal Government, and it states the following:  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”  The Federal government cannot recognize same-sex marriages and states do not have to legitimize same-sex marriages that occurred in another state. 

On October 18, 2012, the United States Court of Appeals, Second Circuit, struck down DOMA, holding that it violates the equal protection clause in the Constitution, being only the second Federal court to do so.  The Supreme Court of the United States will be hearing two cases on same-sex marriage in 2013, with an anticipated decision in the summer, just in time for all of the mega-popular summer weddings of course.

While some states have passed laws allowing for same-sex marriage, Michigan isn’t one of them.  Several states will issue marriage licenses to same-sex couples, or provide for a legal union similar to marriage for those of the same gender.  Various companies and employers will also provide health care benefits to “domestic partners,” in an effort to conform to the rapidly changing public opinion to recognize the validity of same-sex relationships.

So what’s the harm in letting same-sex couples get hitched?  As the saying goes, let them be as miserable as the rest of us.  Frankly, from a family law legal perspective, there are more problems with not letting same-sex couples marry. 

Let’s say a lesbian couple decided to have a child, and one of the partners becomes pregnant after artificial insemination.  She is listed on the birth certificate as the mother.  And the other mother?  Well, she’s not on the certificate, or Affidavit of Parentage…or anywhere else.  So the couple continues their relationship for years, and then decides to break up.  Well, in Michigan, what rights does the non-biological mother have to the minor child that she’s raised as her own?  None.  She can’t go out and file a paternity or custody claim like any boyfriend who’s fathered a child with his ex-girlfriend, because she’s not a biological parent.  She’s also not the husband of the bio mom, and their child was not born during any legally recognized marriage.  Further, same-sex couples cannot legally adopt a child together in Michigan. 

The Michigan Supreme Court has not recognized custody rights for gay, unmarried individuals who are not biologically related to the child at issue, leaving the non-biological partner without any legal remedies.  Some ex-partners may agree to a joint custody arrangement, with parenting time, support, etc. and simply never file any papers with the courts, which happens in both same-sex and heterosexual relationships that go awry.  However, like most break ups, things are not amicable all the time, leading to one parent unfairly withholding the child from the other. 

If you’re the other half of a failed same-sex relationship, you may be denied the opportunity to continue to raise your child, which can have a catastrophic impact on that child’s physical, emotional and mental wellbeing.  It appears that the child’s best interests, which are to be the primary focus of the court in deciding custody and parenting time, only applies to heterosexual relationships.

Retirement - You Gotta Share It!

You slave away from 8-5 daily, almost 52 weeks a year at your job.  You put up with your coworkers, boss and the fact that the maintenance staff never seems to empty your trash can and vacuums around all the crumbs you left on the floor.  The only good thing your job has going for it is a great pension and 401k plan (although it’s probably one or the other in today’s economy), and you can’t wait to be able to sit back, relax and collect all that money each month.

Because your wife never seems to pick up after you either, you decide that it is time to file for a divorce – you want to live out your glory years on a beach with some young babe, and having a wife would foil those plans.  But when you walk into your local divorce attorney’s office for a consult, he says something that stops you dead in the middle of that daydream – your wife gets part of your retirement?!?  She has her own job, she has her own retirement, and she didn’t put in all that time at your employer!

Here’s the kicker – per MCL 552.18, “any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court.”  And, any rights in an unvested retirement plan where you accrued those benefits during the marriage may be subject to division as well. 

The good news is, if your retirement is up for grabs, so is hers.  Typically, barring any premarital amounts in the retirement plan, each spouse is entitled to one-half of the other’s retirement benefits that were accumulated during the marriage (date of marriage to date of divorce).  If you worked at your employer’s prior to the blessed wedding, you most likely get to keep those funds and you’ll need to find out exactly what you had in your 401k or other plan at the date of marriage (or as close to it as the plan administrator can get) so that the premarital amount can be excluded.  Anything you earn after the divorce is yours to keep too, but your spouse can sometimes share in things like cost of living increases to the extent of her award.  Technically the courts can divide premarital and post-divorce monies too, but I rarely see this happen.

If the parties both have the same type of plan, it’s easy to divide – you simply take who has the larger amount, subtract the smaller amount, and split the difference.  At times the one spouse’s award can easily be rolled over into the other’s account by filling out paperwork and submitting it to the plan administrator.  In more complex situations, specific formulas are used to divide plans and determine your spouse’s exact monthly benefit.

The court documents used to divide most retirement plans are called a QDRO (Qualified Domestic Relations Order) and an EDRO (Eligible Domestic Relations Order).  Depending on your employer and type of plan, one of these will be used (unless you got lucky and could just roll it over without needing a separate order).  If your attorney is comfortable drafting these documents, he or she may prepare the QDRO or EDRO on his or her own, or if it’s more complex, it may be farmed out to companies that do this as their primary business.  Certain plans are a nightmare to work with and every comma has to be in the right place in order for the plan administrator to approve the order.  When I know that a large headache is in store, I will hire a company to draft the order – there are several well respected companies in Michigan that know the QDRO and EDRO game inside and out.

I like to send in my orders for “pre-approval” by the company first so I know whether or not it will be accepted before I obtain everyone’s signatures and enter it with the court.  If you don’t secure pre-approval, you run the risk of entering it with the court, submitting it to the company, and then being told it’s wrong and won’t be accepted.  At that point you have to draft an amended QDRO or EDRO, secure all the signatures again, enter it with the court again, and hope the company accepts it on the second try.  Getting a yes or no before doing all that work can alleviate a headache in the end, and save your clients money as well.

You and your spouse can agree to keep your own retirement and not share in those benefits, but that doesn’t happen too often – she needs that extra monthly income for fun with her new man too.