Courts to review the rights of transgendered individuals

Everyone has heard of workplace sexual discrimination, and the general thought that comes to mind is an employer doing something unfairly to an employee based on the employee’s gender of male or female.  Many people do not realize that the Federal Law, Title VII of Civil Rights Act of 1964, has also protected transgendered workers since 2012.

On September 25, 2014, the Equal Employment Opportunity Commission (EEOC) slapped R.G. & G.R. Harris Funeral Home Inc., of Garden City, Michigan, with a discrimination lawsuit, claiming its transgendered employee Amiee Stephens was fired after she advised them that she was going to live as a female.

When Amiee let her boss and fellow funeral workers know of her planned transition, she alleges that she was told it was “unacceptable” and fired a mere two weeks later.

In a much more publicized case, Chelsea Manning (formerly known as Bradley Manning), is suing the Federal government and Defense Secretary Hagel for failure to have her gender dysphoria properly treated while serving her 35 year prison sentence.  You may remember the little WikiLeaks espionage scandal Manning was the head of a few years back.

Once Manning announced that she would be living as Chelsea and not Bradley, she asked the military to compose a treatment plan to continue her transition.  Supposedly the military agreed, but Manning said she never received the military’s plan or any treatment.  In addition to the hormone therapy, Manning is seeking to be able to follow the prison beauty standards for female prisoners (i.e. longer hair and use of makeup).

Transgendered individuals face a high rate of discrimination, suicide and self-harm.  In particular, some male-to-female transgendered individuals will castrate themselves. 

Many individuals believe any additional treatment beyond what is “medically necessary” for prisoners is a privilege, not a right.  The government pays for prisoners to receive medical treatment for all sorts of conditions – mental and physical – prisoners have access to counseling, cancer treatments, dialysis, surgery, prescription medications, etc.  So is what Manning is proposing medically necessary for her diagnosis of gender dysphoria?  And if it is, should the government pay for it while she’s serving a 35 year prison sentence for espionage?  These are certainly only some of the many questions that the public is waiting for the courts to answer.

Amiee Stephens’ case seems more cut and dry – if she can prove that she was fired for coming out as a transgendered individual, her former employer will be in a world of hurt.  Manning’s case will really help define the rights of transgendered individuals in prison – and health care coverage for these conditions in general.

Alternate career choices for attorneys

A lot of attorneys do not like being an attorney – some loathe it while others just feel general disappointment with their career choice.  It’s depressing to spend all of your money, time and effort on attending and graduating from law school, studying and passing the Bar Exam, to then be forced to work in a career that you are not happy with.

I read an article recently that said the average private law school student debt was approximately $125,000 – thankfully mine is not that high but it is still far more than I ever wanted to have.  While there are always exceptions, by and large for the past few years, law firms have been cutting staff, but law schools are still churning out students at a record pace, creating a surplus of lawyers without jobs.  That whole supply and demand thing isn’t working out too well for those in my profession.

While I was lucky enough to have gainful employment during the years I was in private practice, I wasn’t always happy with my career choice.  Since I focused my practice area on family law, I dealt with high conflict, high stress cases day in and day out.  Migraines were common and I kept a surplus of antacids on hand at all times.  I thought about broadening my area of practice, but it was nice knowing a lot about one thing and being able to tell some of the creepers that would call that I didn’t delve into representation of the criminal world.  Besides, family law had plenty of cross over into that realm and I wasn’t exactly itching for more exposure.

I expressed my displeasure over my career with a colleague of mine and he set me up to teach a course in Conflict Management at a local college.  The class was almost four hours long and I had no idea how I was going to fill up that time.  Then I remembered that I frequently talk non-stop and am psychotically outgoing, and I ended up having a blast.  I was easily able to apply my legal knowledge and negotiation skills to the class activities and course teachings.  Still, I wasn’t sure if I wanted to leave the law entirely.  And let’s be honest, it can be nice saying you’re a lawyer too.  There is an underlying layer of prestige that no one who suffers through law school wants to let go of.

In 2014, I was fortunate to land at Washtenaw County Friend of the Court as an Evaluator and Mediator, and I am really enjoying my new career.  It uses all of my legal knowledge, in the specialized field I practiced in, but has normal work hours and less stress (although you may not hear me say that every day).  I don’t have to represent difficult clients, and I am frequently able to help former couples reach agreements without nasty court battles.  This in turn benefits the children most, which is what it’s all about.

So if you are considering law school, or are in law school already, don’t limit your employment options to the 7 am to 9 pm big firm, high pressure gigs.  Yes, you can make enough money to pay your loans back in five years, but is it really worth it?  Most of the time the answer is no.  Your personal life can suffer tremendously and it can take a big toll on your physical health too.  Look around for a job that uses your knowledge but focuses on what you like best about the law.   Life is too short to be unhappy.

A Court's Discretion with Child Support

If I had a dime for every time child support interfered with a consent order being signed, I wouldn’t be sitting here writing this article for you (or maybe I would, but it would be from a beach in Hawaii).  Child support is routinely a hotly contested issue during mediation, divorce and custody proceedings.

In cases where the custodial parent receives government assistance (Food Stamps, Medicaid, or cash), this is typically the only reason the action is filed in the first place.  The parents may be content as to their custody and parenting time arrangement, but the state will force an action and sue the other parent to establish a child support obligation.  Often times these orders for support award the mother custody, and award the father vague parenting time, simply stating “as agreed upon between the parties.”  There is, however, a definite child support obligation spelled out in the order.

Many people believe that parenting time and child support are tied together, and they are – to an extent.  A parent’s number of overnight visits with the children is a component to the Michigan Child Support Formula (MCSF) calculation, along with other factors like the parties’ incomes.  However, a parent can be ordered to pay child support even if he never sees his child.  Conversely, a parent can fail to pay support and still exercise all of his parenting time (assuming he has parenting time of course).  The separation of one’s child support obligation and parenting time rights is clearly delineated in the case Rzadkowolski v Pefley, 237 Mich App 405 (1999).

In the Ewald v Ewald, 292 Mich App 706 (2011) case, the father appealed the trial court’s calculation of his child support obligation.  The parties had two children, a son and a daughter.  The son primarily resided with the dad and the daughter primarily lived with the mom.  Dad saw the daughter regularly for parenting time, but mother and son stopped seeing each other.  Mom did not take any action to change or enforce her parenting time (or lack thereof) with the son.

The trial court determined that the father had a hand in estranging the parties’ son from the mother, and thought it unfair to not award the mother overnight credit (with the son) for purposes of calculating child support.  In doing so, this increased the father’s child support obligation.

The Court of Appeals vacated the trial court’s child support decision, noting that “the trial court erred because the Support and Parenting Time Enforcement Act does not provide for the enforcement of parenting-time rights by adjusting child support obligations.”  If you remember, one of my past article discussed how one’s child support obligation can continue even if parental rights are terminated.

Courts do have discretion in awarding child support, but there are specific deviation factors set forth in the MCSF which outline what can be used as a reason for deviation (see MCSF §1.04(D) & (E)).  The trial court’s problem in the Ewald case was that alleged parental interference with visitation wasn’t one of them.

The MCSF also dictates that child support be calculated by crediting “a parent for overnights a child lawfully and actually spends with that parent including those exercised outside the terms of the currently effective order.” See MCSF §3.03(C)(4)(a) & (b).  So, if the last entered parenting time order gave dad 182 overnights per year, but he since moved to California and now only sees the minor child a few times a year, child support can be recalculated based on his new (and fewer) yearly overnights, without a change in the parenting time order occurring first.

I hear a lot of griping when this is explained, but think about it- why should a person receive a reduced support amount based on what is essentially a now inaccurate court order?  The other parent is providing the child with the daily necessities more frequently due to the decrease in parenting time.

It is said that money is the root of all evil.  I don’t know if that’s true, but it sure is the cause of a lot of court hearings.

Vaccination or Education?

When I came across a New York court case dealing with immunizations and school, it caught my attention, probably because my daughter received a nice rash along with her toy dinosaur after getting her MMR (Measles, Mumps and Rubella) vaccine a few weeks ago.   My husband and I are pro-vaccination as we believe the benefits outweigh the disadvantages of any vaccine given to our child.  Yes, I was annoyed that she broke out in a rash, but thankfully it did not seem to bother her in the least and the only real inconvenience was having to reschedule her pictures so I wasn’t paying for memories of her looking like a Dalmatian.   All of that being said, the debate about whether or not to vaccinate your kiddos is not the subject of this article – it’s about the recent ruling of Judge William F. Kuntz, II, of the Federal District Court in Brooklyn, New York.

Like Michigan, New York requires students to be vaccinated against certain illnesses prior to attending day care, pre-kindergarten, kindergarten, and grades 1 through 12.  A parent or guardian can, however, request an exemption to the immunization policy by having the child’s doctor fill out a form detailing why it would be harmful to the child to be immunized.   If you are objecting for religious reasons, New York requires that the student, parent, or guardian hold “genuine and sincere religious beliefs which are contrary to the practice of immunization. “  If you are denied the exemption, you can of course, in the spirit of the American judicial system, appeal this decision.  For the first appeal, your child can stay in school.  However, if your appeal is denied, and you decide to give it one last go ‘round with the New York State Commissioner of Education, your child cannot attend school during that time period.

The crux of the recent case surrounded New York’s policy excluding unvaccinated children from school when there was an outbreak of a vaccine preventable disease.  Three families sued, two of which had already secured religious exemptions to the vaccination policy.  Their children were not permitted to attend school during a chickenpox outbreak. The third family filed suit due to having the exemption denied on both medical and religious grounds.  The main allegations were violations of the families’ First and Fourteenth Amendment rights.

Judge Kuntz ruled in favor of public health over the religious exemption, and upheld the policy allowing New York to bar unvaccinated children from school during vaccine-preventable disease outbreaks, based on case law from the early 1900’s.  In Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905), Henning Jacobson was appealing his $5.00 fine (big bucks back then) which he received for failure to comply with an order to be vaccinated for smallpox during an outbreak.   The Supreme Court upheld the fine, helping to cement the government’s ability to require vaccinations for public health reasons.

The New York ruling will assist other states in preventing unvaccinated children from attending school during a disease outbreak, which could be a good thing depending on what your beliefs are regarding immunizations.  At a minimum, I’m sure this adds some interesting talking points in the current debate of the balance between public, individual, corporation, and religious rights that the Hobby Lobby SCOTUS case brought into the spotlight.

Supreme Court of the United States rules on the Hobby Lobby Case

Link below to read the heavily contested SCOTUS opinion, June 30, 2014, written by Justice Alito.

http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

The California Hitman Law

I was watching television the other night, trying to pretend I could still stay up late and function the next day when  I came across a show called “Who the bleep did I marry.”  In this episode, California police detective John Pomroy was detailing how his ex-wife Tina received half of their marital estate even though she tried to hire a hitman to kill him.

Tina was physically abusive and suffered from addictions to prescription medications, alcohol and illegal drugs, so it was no surprise that John was awarded custody of the couple’s children in their 2002 divorce action.  Most individuals would be very upset in this situation, but Tina took it a step further. 

Conveniently, some members of a biker gang lived nearby and she tried to hire them to kill her husband.  Unfortunately for Tina she solicited members with scruples, as they quickly ratted her out to the police.  Undercover officers then caught Tina in the act and she was eventually convicted of solicitation for murder.

Due to California law at the time, a spouse was only barred from receiving assets if she personally attempted the murder, not if she hired someone.  As one would imagine, John was quite irritated by this legal loophole, so he made it his mission to get the law changed.

John’s goal became reality – California Family Code Section 4324 states “when a spouse is convicted of attempting to murder the other spouse…or of soliciting the murder of the other spouse…the injured spouse shall be entitled to a prohibition of any temporary or permanent award for spousal support or medical, life, or other insurance benefits or payments from the injured spouse to the other spouse.”  The injured spouse need not actually be physically injured for this to apply.

It seems ridiculous that this law had not always been in effect or that the judge in the Pomroy case wouldn’t have been a trailblazer and set new precedent, but just watching the news will tell you there’s a lot of ridiculousness out there.  In fact, I think that’s even a television show.

Covering the kids on your health insurance

With all of the press surrounding Obamacare and health insurance plan compliance, it led me to thinking about divorced or separated couples covering their kiddos on their health insurance (because the law is what an attorney day dreams about).  Often times the court only requires one parent to provide the insurance, for a variety of reasons.  One parent’s plan may be too expensive, or the benefits may not be as good as the other’s coverage.  The individual incomes of each parent, whether or not they fall below a certain percentage of the federal poverty level, and if the child is covered by Medicaid are also factors for the court to consider.

Both parents may have a legal obligation to provide coverage for their children, if available at reasonable cost.  The word “reasonable” is quite open to interpretation in all areas of the law (and life in general), but luckily for all of us, the Michigan Child Support Formula Manual spells that out.  A “reasonable cost” for health care coverage is no more than 5% of that parent’s gross income.

Talking about health care insurance routinely raises one’s blood pressure when you contemplate what you pay for coverage and what the insurance company provides you with in benefits.  It seems like the companies deny claims right and left despite the enormous premiums you pay each year.  I regularly feel like I need a drink after getting off the phone with my insurance company.  Many parents cover the children on their health insurance regardless of whether or not it falls within the 5% dollar amount, because they make too much money to qualify for a government assisted plan but don’t want their children to go without coverage.

If you cover your children on your health care insurance and either receive or pay child support, be certain to include that coverage amount for child support calculation purposes.  The parent paying for the health care coverage will receive a credit (read:  deduction) in the formula if he pays support, or a premium adjustment payment (read: additional support monies) if he receives support.  Additionally, if the cost of your health care skyrockets at each yearly open enrollment, you may wish to have child support reviewed based on this new, higher cost that you are contributing.

For those of you who might be worried that you are paying a premium adjustment to your ex and reimbursing her for her personal health care coverage, don’t fret.  The child support formula calculates the cost for the children only based on the number of individuals on the policy.

One last bit of medical advice:  the next time you have to call up your insurance company to find out why your son’s asthma medication isn’t covered anymore, pour that drink before you pick up the phone.

If you are interested in learning more, or downloading a free copy of the Michigan Child Support Formula Manual and its supplement, you can find them both on the Michigan Courts One Court of Justice website: http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Pages/Child-Support-Formula.aspx.