Moral fitness matters

When courts look at determining custody and parenting time, they must focus on the best interests factors set forth in MCL 722.23. Most are pretty self-explanatory, albeit in lengthy legal jargon, but one that often stumps is f – the moral fitness of the parties involved.

It’s a fair bet to say that most people don’t believe their exes have stellar morals, for a variety of reasons. Maybe they cheated, maybe they “borrow” their neighbor’s cable services, or maybe they have a criminal record. Or maybe, it’s things that the ex finds personally objectionable – smoking, not going to church or drinking. So where does the court draw the line on determining if a party is morally fit for purposes of custody and parenting time?

 

In the 1994 Michigan Supreme Court case Fletcher v Fletcher, 447 Mich 871, mom had an affair (or two depending on who you ask) during the marriage. Because of this, the trial court found in favor of the dad on factor f, believing that the affair provided a poor moral example for the children. The Court of Appeals reasoned that since the children had no idea she had an affair, her behavior didn’t give them a poor moral example. Michigan’s Supreme Court agreed, but noted that the laser focus on “moral example” overlooked factor f’s critical words, “fitness of the parties involved.”

 

The words moral fitness referenced in factor f relate to “a person’s fitness as a parent.” The court should not focus on who would win the overall moral superiority contest, but rather how and if their moral fitness impacts their ability to properly parent their child. The court held that “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.”

 

The fact that you had an affair or other moral slipup doesn’t equate to being a lousy parent. The specifics of each alleged moral mishap need to be taken into consideration, instead of treating it as an automatic black mark on that parent’s column. People should still try to make good choices, but not every skeleton in your closet needs to come out in court.

MI's Safe Storage Law is in effect

Gun violence is at the forefront of every election, political and legal conversation, and provisions relative to gun safety find their way into domestic relations orders at times.  Michigan recently enacted the secure storage law, Public Act 17 of 2023, effective February 13, 2024, aimed at reducing unintentional gun deaths and injuries.

According to the CDC, there were more than 48,000 firearm related deaths in the United States in 2022, and firearm injuries were in the top five leading causes of death for individuals aged 1 to 44, and the greatest cause of death for those aged 1 to 19.

 

To help combat this, the new law requires that an individual in control of the premises they are on, who leaves a firearm unattended where he’s aware a minor is or likely to be present, must store it in a locked box, or keep it unloaded and locked with a locking device rendering it inoperable. If you are on someone else’s property, you can also store the firearm in your vehicle in a locked box, or keep it unloaded with a locking device. You must lock your vehicle.

 

Penalties for violations of the law increase depending on what happens with the weapon after a minor obtains it. Like most laws, there are exceptions, such as minors who have the firearm with their guardian’s permission, use it for work, farming or target practice.

 

Obligations are also set forth for federally licensed firearms dealers who sell in the state of Michigan. If any of this law applies to you or your clients, read the entire statute carefully to ensure compliance.

 

Individuals can request free gun safety kits through Project ChildSafe by going to its website. After filling in the desired location, a list of participating law enforcement departments will display. Gun safety is imperative to saving lives, and compliance with the new law is extremely important in meeting that goal.

*Project ChildSafe link: Get A Safety Kit – Project Childsafe

Breaking up is hard to do

No one likes being dumped, and if you’re currently embroiled in legal issues, the last thing you need is to be dumped by your lawyer. Here are my top tips to foster a healthy attorney-client relationship.

Don’t hire a champagne attorney on a beer budget. Yes, lawyers are expensive, and some people have family or friends to help them foot the bill, but if you truly cannot afford the services of the attorney you’d like (whether from the outset or partway through the case), be honest with your attorney. Some may offer sliding scales, reduced rates, payment plans or participate in pro bono services. They may also be able to recommend a competent attorney at a price you can afford.

 

Once you decide on an attorney, read the retainer agreement more than once. Ask questions if you don’t understand something in the contract. Ultimately, once you sign it, you are responsible to uphold your end of the bargain. Not doing so could lead to termination of representation.

 

Return documents and respond to emails timely. The time constraints you may find burdensome are often set by the court, court rules or statute – it is not your attorney being unreasonable. If you can’t comply with a deadline, let your attorney know immediately so he can ask about an extension. If you don’t cooperate, your attorney can’t put forward a successful case.

 

Speaking of timing, show up to court and appointments on time. Many matters are still being held via Zoom, which means less justification for tardiness. Being late shows a lack of respect and preparedness. A professional you’ve hired to work for you shouldn’t have to wait on you, and vice versa – keep each other informed as to any delays.

 

Be respectful to your attorney’s staff, ALWAYS. They are the gatekeepers and are extremely knowledgeable people to have on your side. Behind the scenes is their world, and they are likely to be the ones setting up hearings and appointments, drafting documents and helping manage your case. They may also have an hourly rate or charge for particular services – this should be spelled out in your retainer agreement. If you don’t see anything in the contract, ask so you’re not surprised when you get your bill.

 

Last, be honest. About everything. You can do yourself no greater disservice than lying to your lawyer. If you can’t tell the truth to someone bound by legal pinky promises, who can you tell?

Paid surrogacy is no longer a crime in Michigan

Coming in last, Michigan joins the rest of the states in finally decriminalizing paid surrogacy. Governor Whitmer signed the Michigan Family Protection Act which will aid those who grow their families with the help of science.

 As most people know, surrogacy is when a person other than the intended parent carries the baby for those who will become the child’s legal parents. For people who are unable to become pregnant the “old fashioned way,” surrogacy is an important option to make their dream of becoming parents come true. Surrogates are giving more than nine months of their lives to help others, as medical preparation, legal contracts and meetings occur prior to the actual implantation of the embryo.

 

Prior to the new act taking effect, Michigan criminalized paid surrogacy, with penalties of a $10,000 fine and a maximum of one year incarceration. The new act encompasses nine bills, including surrogate regulations. According to the Michigan Fertility Alliance, only 5% of women meet the law’s standards for who can be a surrogate, lessening the chance of complications. The law sets forth what surrogacy agreements must contain and rules that must be followed, and clarifies how the parent-child relationship is established.

 

These changes greatly help those within the LGBTQ plus community as well as others who need reproductive assistance. While it took Michigan a long time to reach this point, it’s better late than never.

Texting judge is off the bench

People are addicted to their cell phones, with no end in sight for the obsession. States have passed laws requiring calls to be hands free and prohibited texting while driving, and schools have rules in place to control when and where a student may access his phone. They are frequently prohibited in various medical settings, and businesses advertise that they won’t take your order or assist you unless you have ended your phone call.

 In jury trials, jurors are given a strict list of rules regarding use of cell phones, with some courts only recently allowing non-lawyers to have their phones in court. You would think that court employees, especially judges, would behave appropriately and respectfully relative to cell phones. After all, they require it of everyone else.

 

That, however, is not the case for now former district court judge Traci Soderstrom of Oklahoma. During a murder trial where the defendant was charged with killing a two-year-old boy, Soderstrom sent over 500 texts to her bailiff commenting about the attorneys and witnesses in the case (both negative, positive and some outright disturbing). She texted that the prosecutor’s witness was a liar and she wanted to clap for the defense attorney. This was done during jury selection, witness testimony and opening statements. Courtroom cameras clearly show her on the bench looking at and holding her cell phone.

 

Ultimately, the defendant was found guilty of second-degree manslaughter and given a sentence of time served. While everyone is guilty of not paying attention at times, one wonders how legitimate and trustworthy are the court proceedings in the case, or any other case Soderstrom presided over? Was the judge preoccupied with her phone when an objection was made? Did it lead to inaccurate rulings? The texts themselves clearly show a lot more than the appearance of impropriety.

 

Her behavior may lead to questioning all other hearings that were in front of her, and possibly reopening matters that were considered resolved. Soderstrom resigned in February 2024, stating “I promised to uphold the Constitution in a fair, even-handed and efficient manner. I believe that I have done so. However, being human, I have also faltered.” Indeed, we are all human, but her behavior is more than a falter – it’s unconscionable.

 

Ohio Church Update

In my last article, I addressed the backlash against Chris Avell and his Ohio church, Dad’s Place, when Avell opened the church to the homeless 24/7 and provided shelter to those least privileged. He found himself facing 18 criminal charges for city ordinance violations, and in turn, Avell slapped the city with a lawsuit for hampering religious activities.

Shortly after I had written my article, I received an email from First Liberty Institute, which included an update on Avell and the church’s predicament. On February 6, 2024, the city of Bryan, Ohio, dropped the charges against Avell, without prejudice, since he agreed to shutter the church’s doors to those seeking shelter. He had previously pled not guilty.

Dad’s Place plans on moving forward with obtaining the proper certifications and permits to continue its work of providing for the community. The mayor of Bryan was quoted as saying she appreciated Avell’s willingness “to ensure that the services provided…are delivered in a safe manner.” If you recall, part of the concern for the makeshift inn was the increase of criminal activity in the area.

So how do the church and city move forward and resolve the lawsuit at hand? Mediation of course! The church and city are engaging in mediation to attempt an amicable resolution. We often see mediation in domestic law cases, helping people resolve property, custody, parenting time, and support issues while the parties are embroiled in a divorce or custody matter. Because that is one of the most popular cases to mediate, some people aren’t aware that just about anything can be mediated. It’s usually far less expensive than a dragged-out court case, and Dad’s Place can use that money to pay for improvements to expand their community outreach.

O-HI-No for church opening to homeless

 Treating others as he would like to be treated has caused legal problems for Chris Avell, the pastor of Dad’s Place Christian church in the small town of Bryan, Ohio. Dad’s Place is located next to a homeless shelter and welcomed those who needed shelter into the church around the clock. Instead of being met with praise for his good actions, Avell was hit with 18 criminal charges for violation of city ordinances because the church lacked appropriate kitchen and laundry facilities, and proper ventilation and exits. He has pled not guilty.

Not willing to turn the other cheek, Avell filed a federal lawsuit against the city and its officials, as well as Bryan’s mayor Carrie Schlade. The church alleges that the city is infringing on its constitutional right to religious freedom by harassing the church and filing charges. Avell believes the city’s behavior is a “not in my backyard” issue, and that it blames the church for tarnishing the area.

 

Implying that the homeless are wolves in sheep’s clothing, the city claims that there’s been an uptick in police activity and concerns relative to criminal behavior occurring at the church, making it necessary to enforce its ordinances.  Prior to charging Avell, the zoning administrator gave the church 10 days to exile those taking shelter.

 

The church claims that various city police officers, hospital employees and shelter staff sent individuals to Dad’s Place for refuge. Two volunteers remain at the church to handle any issues that arise, and individuals are free to leave at any time.

 

The day of reckoning is March 4, when the court will hear the request for an injunction against the city; in the meantime, the status quo remains in effect. The outcome of this case will determine if we really are our brother’s keeper.