Active military members could delegate custody or visitation

Service members could delegate their parental visitation or guardianship rights if called to active duty under a proposed amendment of the Child Custody Act.

The House Judiciary Committee will hear testimony tomorrow on House Bill 5163.

In addition to the delegation provision, the bill directs that a service member’s temporary absence due to military obligations cannot be considered as a factor in a court’s decision to grant or deny  custody and visitation petitions or to change existing custody or visitation arrangements.

The bill also includes provisions for electronic participation in hearings when necessary:

Upon a motion by a parent who has been called to active military duty, provided that reasonable advance notice is given and good cause is shown, the court shall allow that parent to present testimony and evidence by electronic means with respect to matters being decided under this section when the parent’s deployment has a material effect on his or her ability to appear in person at a regularly scheduled hearing. As used in this subsection, “electronic means” includes communication by telephone or video conference.

The bill was introduced by Rep. Kurt Damrow (R – Elkton).

Paternity changes possible under new laws

Legislation establishing procedures to determine that a presumed father is not a child’s father, and to set aside acknowledgements of parentage and orders of filiation have been signed into law by Gov. Rick Snyder.

Senate Bill 557 establishes the Revocation of Paternity Act. A key feature of the act deals with the presumption that a woman’s husband is the father of a child conceived or born during the marriage. The act allows a child’s mother, legally acknowledged father or potential biological father to file an action to establish which man should legally be viewed as the father.

House Bill 5328 amends the Acknowledgment of Parentage Act, MCL 722.1007, to require that in order to revoke an acknowledgment of parentage, an individual must file a claim as provided under the Revocation of Paternity Act instead of Section 11 of the Acknowledgment of Parentage Act. Section 11, which provides for a claim of revocation of an acknowledgment, is repealed.

House Bill 5329 provides that a court would have continuing jurisdiction over proceedings brought under the Paternity Act to determine an action to set aside an order of filiation under the Revocation of Paternity Act.

Senate Bill 560 amends the Estates and Protected Individuals Code, MCL 700.2114, to provide that a man would be considered to be a child’s natural father for purposes of intestate succession if he had been determined to be the father in an action under the Revocation of Paternity Act, in the case of a child born out of wedlock or a child conceived during a marriage but who was not the issue of that marriage.

Special master appointed in JTC complaint against Adams

The Michigan Supreme Court has named Donald Miller, a retired Macomb County circuit court judge, to hear evidence of misconduct charges filed by the Judicial Tenure Commission against Wayne County Circuit Court Judge Deborah Ross Adams.

The JTC, in Formal Complaint No. 89, charged Adams with lying under oath and forging documents in connection with her divorce.

The divorce complaint landed in Oakland County Circuit Court Judge Mary Ellen Brennan’s courtroom after the entire Wayne County circuit bench recused itself.

The JTC charges that Adams, while represented by counsel, frequently called Brennan’s office concerning her case, and persisted in doing so after being advised that such contact was inappropriate. The JTC’s complaint alleges Adams, while under oath, denied she had made the calls.

The JTC further alleges that Adams forged her former attorney’s name on a motion and brief to set aside or modify Brennan’s judgment of divorce.

Adams is also charged with making false statements to the JTC about the matter.

The complaint alleges that Adams violated the Judicial Code of Conduct, several court rules and Michigan’s perjury statute.

Miller will hear evidence and prepare a report for the JTC. The JTC, after a hearing, can then decide to dismiss the complaint or recommend that the Michigan Supreme Court impose one of several forms of discipline such as public censure, a suspension or removal from office.

Guardianship and default court rule changes proposed

A proposed court rule amendment, if adopted by the Michigan Supreme Court, would clear the way for the state to receive federal funding for a program that extends foster care services for qualifying youths.

Two new laws, 2011 PA 225 and 2011 PA 229, spell out the circumstances under which youths who left the foster care program at age 18 can re-enter the program and receive additional services until they are 21.

The proposed amendment of MCR 3.979 would implement judicial oversight of a youth’s continuing eligibility for the extended services:

If extended guardianship assistance has been provided to a youth pursuant to MCL 400.665, the court shall conduct an annual review hearing at least once every 12 months after the youth’s eighteenth birthday to determine that the guardianship meets the criteria under MCL 400.667.

Notice of the hearing shall be sent to the guardian and the youth as provided in MCR 3.920(D)(1). The court shall issue an order to support its determination and serve the order on the Department of Human Services, the guardian, and the youth.

According to the staff comment accompanying the proposed amendment, “Adoption of the proposed amendment will enable Michigan to receive federal Title IV-E funding for the post-18 guardianship program.”

The MSC is also proposing a change to MCR 2.603 (Default and Default Judgments).

“The proposed amendment of MCR 2.603 would clarify that a court clerk could enter a default judgment if the requested damages are less than the amount claimed in the original complaint, to reflect payments that may have been made or otherwise credited,” according to the staff comment.

The comment period for the proposals closes Aug. 1, 2012. Please refer to the link for each proposal for information to submit comments.

Frozen embryo could be hot potato on remand

When Jude and Jayane Stratford were divorced in 2008, they thought they had resolved all their issues, though they did go back to court in 2009 to finalize who would get the dog.

But a couple of years later, they realized they had forgotten about something — their leftover frozen embryo at a fertility clinic.

Jude filed a motion, in which he told the court that through a mutual mistake, the parties failed to disclose the embryo’s existence. He wanted to donate the embryo to the clinic so that some other couple could use it. Jayane wanted the donation to be for medical research only.

Judge Elwood Brown of the St. Clair County Circuit Court found that Jude had the “superior interest” in the embryo. Brown’s post-judgment modification order stated

“Plaintiff [Jude Stratford] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.

Jayane appealed.

The trial court’s order has several problems, the Michigan Court of Appeals ruled in Stratford v. Stratford. (Lawyers Weekly No. 08-77713 – 5 pages) (unpublished per curiam).

First, the order is too vague to be enforced.

The court’s order states, “That the plaintiff may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.”

We conclude that the use of the permissive term “may” — as opposed to the mandatory term “shall” — renders the order inoperative. The court’s written opinion suggests that the court intended to resolve the dispute by granting plaintiff’s request to donate the embryo to the fertility clinic.

Nonetheless, the order neither grants nor denies the request. Rather, the order permits plaintiff to decide when and whether to donate the embryo.

Second, the order imposes obligations on a third party, the fertility clinic, “that the clinic may be unwilling to accept or unable to perform.” The COA noted that the clinic may not be able to make the embryo available for adoption, and might not be able or willing to accept the apparent restriction that only a couple, rather than an individual, can adopt the embroyo.

And who will pay the costs of keeping the embryo frozen until it is adopted, the COA wondered. The order doesn’t say. And what if Jude changes his mind — that could happen, the appeals court said, citing a law review article and several studies that documented changes of heart concerning the disposition of frozen embryos.

There are too many loose ends, the COA concluded.

And here’s a few other things to think about on remand, said the appeals court. We’re not sure whether the trial court could even modify the divorce judgment

Neither the motion nor the answer address the authority upon which the court was permitted to modify a final judgment based on mutual mistake more than two years after the judgment was final.

Beyond that, once the court decided who would get the dog, there was nothing left in the order requiring the court’s intervention, said the COA.

The COA ruled that the status quo should be preserved.

The frozen embryo will likely be a hot topic for the court, the parties, and the fertility clinic on remand.

State Bar wants client solicitation rule revamped

The Michigan Supreme Court is seeking comments on a proposed amendment of Michigan Rule of Professional Conduct 7.3, ADM File No. 2010-22.

The proposal, sponsored by the State Bar of Michigan, would place limitations regarding attorney solicitation of potential family law clients.

The proposal would added the following language to MRPC 7.3a

[I]n any matter that involves a family law case in a Michigan trial court, a lawyer shall not initiate contact or solicit a party to establish a client-lawyer relationship until the initiating documents have been served upon that party or 14 days have passed since the date the document was filed, whichever action occurs first.

This limitation does not apply if the party and lawyer have a pre-existing family or client-lawyer relationship.

For purposes of this rules, “family law case” includes the following case-type code designations from MCR 8.117: DC, DM, DO, DP, DS, DZ, NA, PJ, PH, PP, or VP.

According to the staff comment accompanying the proposal, the state bar “argues that allowing attorneys to notify defendants before service leads to greater risk of domestic violence against the filing party or other illegal actions (such as absconding with children or removing assets from a joint bank or other financial account) that may occur before service can be completed.”

Accompanying the proposal is a request from Michigan Supreme Court Justice Diane N. Hathaway that persons submitting comments “address whether the proposed amendment to the rule is consistent with Shapero v Kentucky Bar Ass’n, 486 US 466; 108 S ct 1916; 100 LEd 2d 475 (1988), or raises any other constitutional concerns.”

The comment period for the proposal closes March 1, 2012. Send comments in writing or by email to: Supreme Court Clerk, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Reference ADM File No. 2010-22.

Michigan Adoption Day Nov. 22

Just in time for Thanksgiving, Michigan families from Houghton to Cassopolis will celebrate the addition of new family members through adoption on the ninth annual Michigan Adoption Day.

In an Oct. 26 resolution, the Michigan Supreme Court designated Nov. 22 as Michigan Adoption Day, declaring that the event’s goal is “to draw attention to children and youth in foster care, particularly their need for permanent, loving families, and also to promote efforts to help those who remain in foster care.” Michigan Adoption Day is co-sponsored by the Michigan Department of Human Services (DHS).

Held each year on the Tuesday before Thanksgiving, Michigan Adoption Day is aimed at highlighting issues for children and youth in foster care, including their need for permanent, loving homes. About 30 of Michigan’s 83 counties are expected to participate this year, finalizing an anticipated 200 adoptions on or about Nov. 22.

In addition to local events, the Supreme Court and DHS will co-host a program at the Michigan Hall of Justice in Lansing. Governor Rick Snyder is slated to speak along with DHS Director Maura D. Corrigan and Chief Justice Robert P.Young Jr. The Hall of Justice event will include finalizations of adoptions for families from Ingham and Ionia counties.

The Hall of Justice is also hosting the Heart Gallery this month. The Heart Gallery, a photographic exhibit of Michigan children waiting to be adopted, is a project of DHS’ Michigan Adoption Resource Exchange.

Anyone interested in adopting a child may call toll-free (888) 200-4005 or visit www.adoptuskids.org. For Spanish, call toll-free (877) 236-7831 or visit www.adopte1.org.

For more Adoption Day information, see www.courts.mi.gov/adoption-day.

- Source: The Michigan Supreme Court.