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St. Joseph, MI - Family Law and Probate Blog

Thursday, May 29, 2014

Grandparents Get No Special Preference in Guardianships

If a child's parents are not fit to care for him or her, one would think the grandparents would be the next logical step for custody. But a recent Michigan Supreme Court ruling held that once the parent's rights have been terminated, the grandmother stood on the same level with the children's foster parents.

 Four siblings were removed from their parents' custody in February 2008. The children's maternal grandmother resided in Florida, so the children were placed in a foster home instead. The children's fathers' rights were terminated in 2009. Then in 2010, the Department of Human Services (DHS) sought to terminate the mother's rights as well. The grandmother filed a petition for guardianship in the probate court to take custody of the four children, after exercising visitation with them each summer and some holidays, and securing a larger home to accommodate the large family.

 The trial court applied the best interest factors from the Child Custody Act, which compares two potential custodial environments. But when it denied the grandmother's petition she appealed, claiming that she was entitled to a legal preference as a relative of the children.

 The Michigan Supreme Court disagreed. It held that the preference for relatives built into the juvenile code was only relevant during the initial placement stage before the parents' rights had been terminated. Once termination occurred, a different statute applied which required placement and potential guardianship to be in the child's best interest. Under that statute, a relative is given the same consideration as any other potential guardian.

 The court also approved the use of the Child Custody Act factors in cases where, as here, there are two competing households. The Adoption Code, which the grandmother wanted to use, only evaluated the adequacy of one household and did not give the court grounds for choosing one environment over another. The Child Custody Act is designed to do just that, and was well suited to determine the best interests of the children.

 Going forward this means it will be more difficult for relatives of children subjected to abuse or neglect to take over custody when they have not been the ones taking care of the children during the DHS proceedings. It will make that initial placement all the more critical in determining the eventual custodial home of the children.

 If you know someone who is facing termination of their parental rights, or who is looking to take guardianship of a family member, have him or her call Attorney Peter J. Johnson, 269-982-1100 for a consultation.

 *Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.


Sunday, April 6, 2014

Gay Marriage Was Legal In Michigan – For One Day

It isn't often that a federal court affects family law in Michigan. But on Friday, March 21, 2014, the United States Federal District Court in the Eastern District of Michigan struck down the Michigan Marriage Act and made it possible for gay couples to marry in Michigan. But the results did not last long.

 The case involved two women who were nurses and foster parents before they each chose to adopt special needs children. These women were a same-sex couple and desired to jointly adopt these three children in order to give each child two legal parents.

 But Michigan's adoption law does not allow two unmarried people to adopt the same child. The Michigan Marriage Act, approved by voters in 2004, stated:

 “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”

 The Plaintiffs were unable to marry, so they were not allowed to jointly adopt their children.

 The court considered extensive evidence regarding the outcomes of children raised in homosexual households and the challenges presented to non-biological parents of such children if the biological parent dies. Judge Friedman found that there was no basis for the law that was rationally related to a legitimate government interest. He struck down the constitutional amendment and its enforcing statutes.

 But the effect of the ruling was short-lived. Judge Friedman refused to issue a stay, which would delay the effect of his opinion until it could be reviewed by the Court of Appeals. But the very next day the 6th Circuit granted that stay.

 Now the fate of the Michigan Marriage Act is in the hands of a three judge panel at the Circuit Court level. If they affirm the district court ruling then the Attorney General and Governor can request review by the Supreme Court.

 If you know someone with questions about family law, contact family attorney Peter J. Johnson at 269-982-1100 for a consultation.

*Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

 


Wednesday, February 26, 2014

Michigan Court of Appeals Splits Over Revocation of Paternity Act

The Michigan Revocation of Paternity Act has been in effect since June 2012. But now that the first cases are hitting the Court of Appeals, there seems to be a split in the judges' opinions on what to do with it.

 The debate began late last year, when one Court of Appeals panel decided that the factors included in the statute regarding the best interests of the children did not apply to cases with an Affidavit of Paternity. (In re Moiles)The decision, which surprised many family attorneys, left a big question – if judges couldn't use the factors in the statute, how were they supposed to decide whether there was clear and convincing evidence to set aside the Affidavit?

 A few months later another Court of Appeals panel tried to answer that question, and failed to come to any agreement. (Helton v. Beamon) The case resulted in three separate opinions from the three judges:

  • One saying the court was bound by In re Moiles and applying the Child Custody Act best interest factors given the similarities of the issues;
  • One saying In re Moiles was wrong, but that the biological father had waited too long to file his claim (even though it was filed very soon after the new statute was passed); and
  • One saying In re Moiles was correct and there should be no best interest analysis.

 When a Court of Appeals panel is split, whichever side of the issue has two votes is considered the opinion of the court. But here, none of the judges agreed. As a result, the only thing the case represents is the need for the Michigan Supreme Court to address the issue.

 New laws, like the Michigan Revocation of Paternity Act, always have a period of growing pains as the courts decide what to do with them. But the Revocation of Paternity Act seems to have split the court more than most. If you have a paternity issue, contact Attorney Peter J. Johnson 269-982-1100 for a consultation.

 *Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.


Friday, February 14, 2014

Stepparent Adoptions

Stepparent Adoptions

Stepparent adoption is the most common form of adoption in the United States. Once the adoption is finalized, the stepparent assumes full financial and legal responsibility for his or her spouse’s child and the non-custodial parent’s rights and responsibilities are terminated.  

Stepparent adoptions are handled according to state law, which can vary across jurisdictions. For example, some states do not require a home study in cases of stepparent adoption. Most states require that the biological parent and stepparent be married for a specified length of time before an adoption may be finalized. Fortunately for blended families, most states make the adoption process easier for stepchildren to be adopted by their stepparents.

Stepparent adoptions require the consent of both of the child’s birth parents, but the process is handled differently in various states. In some states, the non-custodial parent must file papers with the court or appear before a judge, while a simple written statement is sufficient in other jurisdictions. Some states require the non-custodial parent to seek counseling or speak to a lawyer in order to give valid consent.

The consent requirement is not absolute and in fact, consent may not be required in certain situations. In some states, a stepparent adoption may be finalized even if the child’s biological, non-custodial parent contests the adoption, such as when the non-custodial parent has not contacted the child for a specified period of time. If you are having difficulty obtaining consent, you should speak with an attorney. If you cannot afford an attorney, you may be eligible for free legal aid or the court may appoint a guardian ad litem to represent your child.
 


Wednesday, January 15, 2014

Overview of Life Estates

Overview of Life Estates

Establishing a Life Estate is a relatively simple process in which you transfer your property to your children, while retaining your right to use and live in the property. Life Estates are used to avoid probate, maximize tax benefits and protect the real property from potential long-term care expenses you may incur in your later years. Transferring property into a Life Estate avoids some of the disadvantages of making an outright gift of property to your heirs. However, it is not right for everyone and comes with its own set of advantages and disadvantages.

Life Estates establish two different categories of property owners: the Life Tenant Owner and the Remainder Owner. The Life Tenant Owner maintains the absolute and exclusive right to use the property during his or her lifetime. This can be a sole owner or joint Life Tenants. Life Tenant(s) maintain responsibility for property taxes, insurance and maintenance. Life Tenant(s) are also entitled to rent out the property and to receive all income generated by the property.

Remainder Owner(s) automatically take legal ownership of the property immediately upon the death of the last Life Tenant. Remainder Owners have no right to use the property or collect income generated by the property, and are not responsible for taxes, insurance or maintenance, as long as the Life Tenant is still alive.

Advantages

  • Life Estates are simple and inexpensive to establish; merely requiring that a new Deed be recorded.
  • Life Estates avoid probate; the property automatically transfers to your heirs upon the death of the last surviving Life Tenant.
  • Transferring title following your death is a simple, quick process.
  • Life Tenant’s right to use and occupy property is protected; a Remainder Owner’s problems (financial or otherwise) do not affect the Life Tenant’s absolute right to the property during your lifetime.
  • Favorable tax treatment upon the death of a Life Tenant; when property is titled this way, your heirs enjoy a stepped-up tax basis, as of the date of death, for capital gains purposes.
  • Property owned via a Life Estate is typically protected from Medicaid claims once 60 months have elapsed after the date of transfer into the Life Estate. After that five-year period, the property is protected against Medicaid liens to pay for end-of-life care.

Disadvantages

  • Medicaid; that 60-month waiting period referenced above also means that the Life Tenants are subject to a 60-month disqualification period for Medicaid purposes. This period begins on the date the property is transferred into the Life Estate.
  • Potential income tax consequences if the property is sold while the Life Tenant is still alive; Life Tenants do not receive the full income tax exemption normally available when a personal residence is sold. Remainder Owners receive no such exemption, so any capital gains tax would likely be due from the Remainder Owner’s proportionate share of proceeds from the sale.
  • In order to sell the property, all owners must agree and sign the Deed, including Life Tenants and Remainder Owners; Life Tenant’s lose the right of sole control over the property.
  • Transfer into a Life Estate is irrevocable; however if all Life Tenants and Remainder Owners agree, a change can be made but may be subject to negative tax or Medicaid consequences.

Monday, December 16, 2013

Seven Tips for Negotiating Your Divorce Settlement

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

  • Establish clear priorities.
  • Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
  • Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
  • Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
  • If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
  • If you spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
  • If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.
 


Tuesday, November 26, 2013

What does Misrepresentation Mean in the Revocation of Paternity Act?

A recent Michigan Court of Appeals decision clarified two important points about the Revocation of Paternity Act: what “misrepresentation” means and whether courts may consider the revocation factors in deciding to revoke Acknowledgments of Parentage.

 The parties in this case dated for seven years ending in 2009, but they were separated for much of 2006. When a child was born in 2007, both parties signed the Acknowledgment of Parentage even though both knew the man might not be the biological father. In 2011, the man was accused of abusing his other child and was investigated by Child Protective Services (CPS) on two separate occasions.

 Two months after the Revocation of Paternity act was enacted, the mother filed a complaint to revoke the man's paternity. A subsequent DNA test reveal that he was not the biological father of the child, and the Court revoked the man's Acknowledgment of Paternity, effectively terminating his rights to the child.

 The Court of Appeals agreed with the trial court's decision. The man claimed that there could be no misrepresentation if both parties had the same knowledge when they signed the acknowledgment. Basically, he said the mother could not rely on information provided by the man in order to sign. However, the court found that others had relied on the mutual misrepresentation – the courts, the state, and the child had all treated the man as the father when the parties knew there was a possibility he wasn't. Therefore the court found there had been a misrepresentation.

 The Court of Appeals then addressed the court's ability to refuse to revoke paternity in certain cases. The statute says:

“A court may refuse to enter an order setting aside a paternity determination ordetermining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child. The court shall state its reasons for refusing to enter an order on the record. . . .” MCL 722.1443(4).

 The court found that an acknowledgment of parentage is not a paternity determination or a determination that the child is born out of wedlock. While trial courts have the authority to revoke those affidavits, this section regarding the child's best interest did not apply.

 As a result of this case, it appears that the DNA test or other evidence that a man who signed an acknowledgment of paternity is not the biological father of a child could be conclusive even though the statute says trial courts are not bound by those tests. What is clear is that the court cannot use the factors described in the statute to refuse a request where the biological evidence is clear.

*Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.


Friday, November 15, 2013

Property Ownership and Your Estate Plan

Coordinating Property Ownership and Your Estate Plan

When planning your estate, you must consider how you hold title to your real and personal property. The title and your designated beneficiaries will control how your real estate, bank accounts, retirement accounts, vehicles and investments are distributed upon your death, regardless of whether there is a will or trust in place and potentially with a result that you never intended.

One of the most important steps in establishing your estate plan is transferring title to your assets. If you have created a living trust, it is absolutely useless if you fail to transfer the title on your accounts, real estate or other property into the trust. Unless the assets are formally transferred into your living trust, they will not be subject to the terms of the trust and will be subject to probate.

Even if you don’t have a living trust, how you hold title to your property can still help your heirs avoid probate altogether. This ensures that your assets can be quickly transferred to the beneficiaries, and saves them the time and expense of a probate proceeding. Listed below are three of the most common ways to hold title to property; each has its advantages and drawbacks, depending on your personal situation.

Tenants in Common: When two or more individuals each own an undivided share of the property, it is known as a tenancy in common. Each co-tenant can transfer or sell his or her interest in the property without the consent of the co-tenants. In a tenancy in common, a deceased owner’s interest in the property continues after death and is distributed to the decedent’s heirs. Property titled in this manner is subject to probate, unless it is held in a living trust, but it enables you to leave your interest in the property to your own heirs rather than the property’s co-owners.

Joint Tenants:  In joint tenancy, two or more owners share a whole, undivided interest with right of survivorship. Upon the death of a joint tenant, the surviving joint tenants immediately become the owners of the entire property. The decedent’s interest in the property does not pass to his or her beneficiaries, regardless of any provisions in a living trust or will. A major advantage of joint tenancy is that a deceased joint tenant’s interest in the property passes to the surviving joint tenants without the asset going through probate. Joint tenancy has its disadvantages, too. Property owned in this manner can be attached by the creditors of any joint tenant, which could result in significant losses to the other joint tenants. Additionally, a joint tenant’s interest in the property cannot be sold or transferred without the consent of the other joint tenants.

Community Property with Right of Survivorship: Some states allow married couples to take title in this manner. When property is held this way, a surviving spouse automatically inherits the decedent’s interest in the property, without probate.

Make sure your estate planning attorney has a list of all of your property and exactly how you hold title to each asset, as this will directly affect how your property is distributed after you pass on. Automatic rules governing survivorship will control how property is distributed, regardless of what is stated in your will or living trust.


Tuesday, November 12, 2013

Step-Parent Adoptions Aren't as Easy as You Think

When some couples create blended families through second marriages, they want to promote unity by filing for a stepparent adoption in the probate court. But before the court can declare the stepmother or stepfather the legal parent of the child, it has to terminate the rights of the biological parent. A recent Court of Appeals decision shows that it isn't that easy to do.

 

In that case, the mother was the sole legal and physical custodian of the child in question. The child's father had fallen $5,000 behind in his child support obligations over the course of 9 years.

 

Then he was convicted of unarmed robbery and sentenced to 4-30 years in prison. When a person is incarcerated in a prison (but not a local jail), he or she can ask the court to “abate” any existing support orders. This results in a modified order with a $0 monthly payment.

 

About the time the father was incarcerated, the child's mother got married. Two years later she and her husband filed a petition for stepparent adoption. They asked the court to terminate the father's rights because he had not provided support for over 2 years.

 But the Court of Appeals said no. Since the father had been in prison, the child support order had been $0. Since the father had paid $0, he had complied with the court order. Even though the father had a substantial arrearage going into prison, the court said it could not grant the petition because for the 2 years immediately proceeding the petition the father had been doing everything the court had ordered him to do – nothing.

 If you are thinking about consolidating your blended family by filing a stepparent adoption petition, talk to an attorney. There are options available to terminate the biological parent's rights and help you move forward as a family.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.


Wednesday, October 30, 2013

Court Upholds a Grandparent's Right to Visitation

Can a grandparent get visitation when the child lives with a guardian? A recent Court of Appeals decision says yes, if certain conditions are met.

 Any time the court has jurisdiction over a child, like when the child's parent have gotten a divorce or a custody order, or where the child has been removed from the parents' home, grandparents can file a motion for grandparenting time. In this case, the child's mother died and the father was incarcerated. The child was put in the custody of one of her mother's relatives. Then the child's grandmother filed a motion for grandparenting time.

 When deciding this kind of motion, the court will assume that a fit parent's decision to refuse parenting time is not harmful to the child. But the Court of Appeals said that a guardian is not entitled to the same presumption.

 Instead, the court should have moved on to consider whether grandparent visitation was in the best interest of the child. In making that decision, the courts can look at:

  1. The emotional ties between the child and the grandparent;
  2. The length and quality of their relationship;
  3. The grandparent's moral fitness;
  4. The grandparent's mental and physical health;
  5. The child's preference if he or she is old enough;
  6. The hostility between the grandparent and the child's parents;
  7. The grandparent's history of physical, emotional, or sexual abuse;
  8. The reason the parent denied grandparent visitation;
  9. Any other relevant factors.

 Grandmothers and grandfathers can ask a court to award them visitation with their grandchildren. If they are going against a parent's wishes they will have to show the child will be harmed without it, but if the children have been placed with a guardian, the court will decide whether the visits are in the child's best interest and enter an order accordingly.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.


Tuesday, October 15, 2013

Top Ten Child Support Myths

Top Ten Child Support Myths

Child support disputes can bring out the worst in many parents, conjuring images of greedy ex-spouses and children who are used as pawns in games of parental posturing and revenge. While there may be a certain degree of truth to some of the stereotypes, there are many myths that are prevalent in the context of children and divorce.

Myth: Child support payments are based on the needs of the children.
Fact: Support payments are based on the parents’ ability to earn income and have no basis in the actual costs to raise a child.

Myth: Child support payments must be spent on the child.
Fact: No state requires child support recipients to account for expenditures or prove they were necessary to meet the child’s needs, or even whether they were spent on the children at all. In fact, many states view the purpose of child support as protecting the standard of living of the custodial parent.

Myth: I can move out of state to dodge my child support obligations.
Fact: Each state has its own child support enforcement agency and these agencies all work together. You cannot escape this obligation.

Myth: I can quit my job in order to avoid making child support payments.
Fact: The courts are permitted to “impute” income to a parent who intentionally quits a job, whether or not that parent is currently earning a paycheck. Obligations will continue to accrue and payments must be made.

Myth: I have lost my job and can’t make my child support payments, so I will be sent to jail.
Fact: You can only be incarcerated if you have the ability to pay but refuse to do so. If you have lost your income and do not have the ability to pay, you will not be criminally liable for non-payment.

Myth: My ex-spouse uses child support payments for shopping, dining and to support a lavish lifestyle; therefore, my support payment should be reduced.
Fact: So long as the custodial parent pays expenses to feed, clothe and house the minor children, which is the ultimate purpose of child support payments, whatever else she spends money on is generally not scrutinized.

Myth: My living expenses are high and I cannot afford the child support payments; therefore, my support payment should be reduced.
Fact: Generally, expenses must be necessary and extreme in order to be considered as a basis for child support calculations.

Myth: Child support payments are deductible on my income taxes.
Fact: Child support payments are not deductible to the paying parent; nor are they considered “income” to the receiving parent.

Myth: If I have children with a new partner, my child support payments will decrease.
Fact: The birth of a new child will not reduce your obligations to make child support payments to a prior spouse. New children may affect the existing child support order if you get another divorce and must pay child support for the second set of children.

Myth: My ex-spouse claims she can modify the child support order and take my house, bank account or other assets.
Fact: A future child support modification can only address the amount of child support payments going forward. Assets cannot be seized and typically are not considered in modifications.
 


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