COA says: No custody rights for same sex parents

“The Appeals Court struck down a ruling from a lower court that might have given unmarried partners, including people in same-sex relationships, the right to seek joint custody,” reports Michigan Public Radio.

Read the full story here.

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MSC grants leave in child support case

If a court terminates a divorced man’s parental rights, must he continue to pay child support?

In In re: Beck, et al. Dep’t of Human Services v. Beck, the Michigan Court of Appeals ruled that the termination of parental rights “does not automatically extinguish the parental responsibility of paying child support.”

Support is a continuing obligation until a court specifically orders otherwise, the COA ruled. See, Michigan Lawyers WeeklySpoiled support – Parental termination does not end child support

The COA observed that MCL 712A.19b allows termination of parental rights but says nothing about ending parental responsibilities. And children have an “ongoing right to financial support … independent of a parent’s retention or exercise of his or her parental rights.”

The COA noted several public policy reasons why a support obligation survives termination of parental rights:

  • Eliminating the benefit of child support after a termination of parental rights does not assist in protecting the child from any harm emanating from the prior parental relationship; instead, it denies the child benefits based on the child’s needs and the parent’s ability to pay.
  • [A]bsent an adoption, terminating support from one parent necessarily places the full financial responsibility on the other parent, often with assistance from the state.
  • [I]f a judgment involuntarily terminating parental rights automatically discharges a parent from responsibility for child support, it could potentially lead to results detrimental to the child’s welfare. It may, for example, force a parent to forgo reporting the abusive or neglectful behavior of a co-parent in order to preserve a child’s right to receive financial support. It may also provide a vehicle for the avoidance of a support obligation by a parent; an irresponsible parent could quickly realize that he or she could escape liability for child support by abusing or neglecting their child.

Last week, the Michigan Supreme Court granted leave to appeal in Beck. The MSC has invited the State Bar of Michigan’s Children’s Law and Family Law Sections to file amici briefs.

The case will likely be argued during the Court 2010-2011 term.

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In their opinions …

prison cell“[T]he [trial] court and the DHS failed to facilitate respondent’s participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. …

“The court effectively terminated respondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future.

“Incarceration alone is not a sufficient reason for termination of parental rights.”

– Michigan Supreme Court Justice Maura D. Corrigan, writing for the majority in In re: Mason. Dep’t of Human Services v. Mason, et al.

“[T]he majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of [respondent’s] parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent. I believe that the majority has it exactly backwards — respondent is the one who did not do enough to become a better parent.”

– Michigan Supreme Court Justice Stephen J. Markman, dissenting in Mason.

While Richard Mason was doing time for a drunken driving conviction, and then for the resulting probation violation of a larceny conviction, the DHS removed his two sons from Smith, the boys’ mother.

Mason and Smith’s parental rights were eventually terminated when Mason was up for parole. Smith didn’t attend the termination hearing and did not appeal. Mason was there and did appeal. The Court of Appeals shut him down.

But Corrigan, joined by Chief Justice Marilyn Kelly and Justices Michael F. Cavanagh and Robert P. Young Jr., faulted the trial court for not facilitating Mason’s participation by telephone during some phases of the proceedings.

The majority also said the court and the DHS didn’t “ensure[ ] that [Mason] had a meaningful opportunity to comply with a case service plan, or consider[ ] the effect of the children’s placement with his family.”

Markman, joined by Justice Diane M. Hathaway, didn’t see any problem with the extent of Mason’s participation:

Because respondent was incarcerated, he was not present at all the proceedings, but his counsel was always present on his behalf.

Respondent’s counsel indicated that although he wrote to respondent and notified him of the proceedings and of the fact that respondent could participate by way of speakerphone, respondent did not initially respond.

That is, contrary to the majority’s repeated contention that respondent was not informed of his right to participate in the hearings by telephone, respondent’s attorney did, in fact, inform respondent of this right. …

[R]espondent did also, in fact, participate by way of speakerphone during at least two of the proceedings, and he did physically attend the termination hearing.

Markman also took issue with the majority’s conclusion that the DHS and the trial court did do enough to help Mason “become a better parent.” Any mischief here was that of Mason’s own making:

The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.'”

However, the majority disregards two quite significant points.

First, to the extent that respondent was “hamstrung,” this was of his own making — nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.

Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded “no contest” to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”

Justice Elizabeth A. Weaver joined Markman’s dissent in a separate opinion.

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