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.

 

Insanity Defenses are left up to the States

In mid-March of this year, the Supreme Court made a significant ruling regarding the use of insanity as a defense to a crime.  In the case of James Kahler v Kansas, No. 18-6135, the SCOTUS ruled that the Due Process Clause of the Constitution does not require a state to acquit a defendant who was found to be insane at the time of the crime.

Kahler was convicted of murdering his family and was sentenced to death in Kansas.  His wife had left him, taking their children, causing Kahler great distress.  While Kansas provides for mental disease or defect as a defense to a prosecution, it only allows for an acquittal if the defendant could not form the necessary mens rea.  Kahler attempted to use his depression as proof he was unable to form the requisite intent to kill.  He also introduced evidence in an attempt to reduce his sentence due to mental illness, but was unsuccessful.

Kahler appealed, challenging the fact that Kansas does not allow “an insanity defense that acquits a defendant who could not ‘distinguish right from wrong’ when committing his crime.” Kansas instead provides for cognitive incapacity, not moral incapacity, as a defense. The SCOTUS explained that in order for Kansas’ law to violate due process, it has to “‘[offend] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” The opinion provided a fascinating look at the insanity defense throughout legal history.

The Court reiterated that it is paramount to allow individual states to determine what can be used as a defense to a criminal act, due to ever changing social policies, morals and ethics.  It is not the duty of the Supreme Court to dictate how the states choose to apply the insanity defense, and the Court noted that opinions on mental illness and criminal behavior vary so widely that it would be unwise for the law to require one rigid standard. Since the research and knowledge on mental conditions change over time, a firm standard for the law would not adapt to the fluidity of the psychiatric field.

The SCOTUS affirmed the lower court in ruling that Kansas and all states have the power to choose how they handle insanity defenses.  I find it particularly fitting that this ruling was issued at the beginning of the pandemic – if there was ever going to be a year in which to claim insanity, 2020 would be it.

The votes are in

On October 16, 2020, the Michigan Court of Appeals ruled that all Michigan absentee ballots must arrive by election day, November 3, to be counted.  Anticipating issues due to the COVID-19 pandemic, citizens sued the Secretary of State and Attorney General to challenge the constitutionality of laws which require absentee ballots be received before the polls close on election day, the requirement for postage to be placed on the ballot in order for it to be successfully mailed, and who exactly can turn in the ballot for the voter.  Specifically, the plaintiffs sought an exception to the enforcement of these three laws for the 2020 election.

They were mostly successful in the Court of Claims, which ruled that absentee ballots could be counted up to 14 days after the polls closed if the ballot was postmarked prior to November 3. A non-relative, non-household resident third party could deliver another voter’s ballot if they had permission to do so, and it was between “5:01 p.m. on the Friday before the 2020 general election until polls close.”  Not surprisingly, the plaintiffs lost the postage argument.

An interesting twist happened when the Senate and House of Representatives successfully intervened in the lawsuit and appealed the Court of Claims’ ruling, with the Appeals Court noting that the Legislature had the right to defend its own statutes.  Without boring you with details, the Appeals Court basically determined that the Court of Claims used the wrong analysis when making its ruling.

The Court of Appeals leaned on a previously decided case which found the 8:00 p.m. ballot deadline to be constitutional under a “facial” challenge (looking only at the plain language of the law).  It held that the ballot delivery person law survived the plaintiff’s facial challenge as well.  The Court found that Michigan had made drastic changes to allow absentee voters to deliver their ballot without the use of mail, and complete the entire voting process, including registration, at one location.  Ultimately, it held that the restrictions imposed failed to place “an unconstitutional burden on the right to vote.”

To be thorough, the Court went through a brief analysis of whether the plaintiffs would be successful under the “as-applied challenge” analysis of the laws, determining that their claims would still fail.

Due to the pandemic, many voters will be casting absentee ballots this year, in Michigan and throughout the country.  Depending on the various rules of when counting can begin, Americans may not know the official results for days after November 3.  Regardless of the outcome, I am still proud that I live in a country where I have the right to vote.

Persistence did not pay off

The Michigan Court of Appeals recently decided an unusual jurisdiction case – Vijayalakshmi v Sivagnanam Thamilselvan, which involved competing jurisdiction claims from Oakland County and India.

Both parties are Indian citizens and were married in India as an arranged marriage. Only three weeks after their marriage, the husband moved to Florida, and the wife joined him a year later. They had a daughter in the US and moved to Michigan when she was an infant, settling in Farmington Hills. In late 2017, the wife and daughter left the husband, citing abuse, but remained in Michigan. The husband wanted to reconcile and decided to try and accomplish this by filing for divorce in Oakland County, hoping the family would return to him after he filed a motion for their daughter to return home. His plan didn’t work, so he dismissed the divorce.

The wife filed her own divorce action in Oakland County a month later, which forced the husband to concoct another plan to stay together. His reach was much farther this time, asking the Family Court in India “for restoration of his conjugal rights, as a form of reconciliation or mediation with [his wife].” As far as I know, Michigan has no equivalent to this type of petition, and I was surprised to learn this was an actual option. Not willing to stop there, he also petitioned the Indian High Court for an “anti-suit injunction,” which would stop his wife from pursuing the Michigan divorce.

The wife fought the Indian legal actions, but an injunction was ultimately entered in India. In the meantime, the husband filed the typical answer to complaint for divorce in Oakland County. He also filed two motions to dismiss the Michigan divorce, arguing that only India had the jurisdiction to divorce the couple. The court disagreed and would not enforce the Indian injunction, because doing so would prevent the wife from obtaining her legal right to a divorce. After a trial, the Oakland County divorce was granted in May 2019.

The husband appealed the finding of jurisdiction ruling, lack of recognition of the Indian order and some property values. The Michigan Court of Appeals found in favor of the wife on all issues.

Michigan’s jurisdiction of the court is found in MCL 552.9(1), which mandates that a judgment of divorce cannot be granted unless one of the parties has lived in Michigan for 180 days immediately preceding the filing of the divorce, and with few exceptions, one of the parties must have lived in the county where the complaint was filed for 10 days immediately preceding the filing.

The Court of Appeals emphasized that a party’s intent is the key factor in determining residence, and that the statute only mandates the residence requirement for one party, not both. In examining the family’s history in the US, they had lived and worked in Michigan for over 18 years, educated their daughter here, purchased two Michigan homes and paid taxes. The Court of Appeals gave deference to the trial court’s determination of the wife’s testimony as being credible to residency.

What was also key was the fact that the husband availed himself to the jurisdiction of Oakland County when he first filed for divorce and also when he answered the complaint. Basically, you can’t have it both ways. He also argued that only an Indian court could grant a divorce, yet he never petitioned the Indian court for a divorce – in fact, he did the exact opposite.

The husband also took issue with the lack of comity afforded to the injunction issued by the Indian court. Unfortunately for him, ‘[t]he rule of comity…is a discretionary doctrine…and is not allowed to operate when it will contravene the rights of a citizen of the State where the action is brought.” While it takes two to get married, you only need one to get a no-fault divorce in Michigan. If the Michigan court recognized the Indian injunction, it would be denying the wife’s inalienable legal right to a divorce.

The saying “throw it against the wall and see what sticks” is particularly fitting for this case, given the husband’s persistence in preventing the divorce. This same persistence cost him thousands as he was ordered to pay part of his wife’s attorney fees. It turns out persistence doesn’t always pay off.

Extras may not count toward child support

As parents, we want to provide our children with not only the things they need, but “extras” to help them be well-rounded individuals, like sports and extra-curricular activities. A lot of parents find that a phone and car are essential items for their kids – not just for safety but for convenience. Let’s be honest, driving kids to and from all of their activities is not my favorite pastime, and they have far more of a social life than I do at this point.

These extras can cost hundreds and thousands of dollars a year. Some separated or divorced parents choose to divide the costs; others take full responsibility. Cars don’t just come with the loan payment, they include car insurance, registration, driver’s ed costs, maintenance, etc., which adds up quickly.

When a parent takes on these extras for their children, they need to be aware that those expenses do not negate his or her obligation under a child support order. If you have a child support order, that obligation needs to be satisfied, and then you can pay for the voluntary extras. Some child support orders may take into consideration extra costs and deviate from the guideline recommended amount of support because the parent, or parents, pay for these additional expenses. Unless you have a court order requiring the horse boarding, teenager’s cell phone bill, or car payment (whatever the extra is) to be taken into consideration for purposes of child support, the guidelines do not specifically call them out as a reason to deviate from the formula recommended amount. There is the “catch all” deviation factor of “[a]ny other factor the court deems relevant to the best interest of a child,” but I’ve never relied on that factor to lower child support because a parent voluntarily pays for something the child does not need.

Some cases have orders that require parties to pay for these expenses, and set forth the percentage split and parameters for the costs – the order may state that the expenses have to be mutually agreed upon, it may include up to a maximum cost per year, and so on.

Parents who have been shelling out money for their child’s car, tuition, or tennis coach are often upset when they learn that absent a court order, these payments don’t have a place in the child support formula. As I often say, support is a “plug and play” program – plug in the numbers it asks for and hit go. There is no spot for me to plug in these costs, much to the paying parent’s dismay. These costs can be excessive, and the paying parent is not automatically entitled to a “break” in support because of it.

Similarly, items that you may provide your now adult children won’t be taken into consideration absent an agreement between the parties, or court order. Not to say it doesn’t exist, but I have not run across an order (absent consent) that requires support of an adult child to be considered when calculating support for the minor child. I suppose you can always ask, right?

So, before you take on additional financial responsibilities for your kids, understand that those perks you are providing to your children may not be relevant to your child support obligation. Pay them because you can and you want to, not because you are looking for a credit down the road. Discuss the matter with your ex, read over your court order to see if it requires a division of the costs, and decide what you want to do after you’ve done your due diligence. It will make your bank balance a lot easier to look at.