Thursday, June 23, 2011

Michigan separate property laws at risk

Currently, there is proposed legislation in Lansing that attempts to completely change the separate property laws in Michigan that we know today. They are House Bills 4672 and 4673 and were taken up by the House Judiciary Committee beginning this morning.

The Michigan Probate Court Judges, the SBM Family Law Section and the Oakland County Family Law Committee all unanimously oppose this bill. It has been introduced so suddenly and is being pushed with such vigor that many have not yet had the opportunity to weigh in. This bill is sponsored by Representative John Walsh (R) from Livonia and is being backed by Richard McClellan Esq. as well as Jay Cunningham, Esq., who has been hired as an expert. It is believed that this is being privately pushed by a well-connected individual who may have a personal reason for wanting to change the current laws in Michigan when it comes to property division.

While it's sponsor claims the law simply codifies existing law (he does admit it is a policy shift but can't articulate why it is needed), the fact is that the proposals obliterate the separate property law as we know it today. Highly appreciated family owned businesses (and other property) "shall be" awarded to the spouse who brought them to the marriage, disregarding the equitable ownership approach currently in existence. The non-owner spouse would be relegated to requesting some sort of "reimbursement"... limiting the non-owner to something similar to an employee at best and a locked out spouse begging for reimbursement for "expenses" at worst. This flies in the face of our partnership theory--the bedrock of the institution of marriage. This is one example of the problems with this legislation. Our "invasion" statute is eliminated as a part of this law, thereby eliminating the discretion of a court to do equity where need or contribution exists. This proposed statute obliterates the well reasoned and precedential Hanaway v Hanaway case, now the settled law of the State of Michigan. This proposed change sets us back decades relative to seeking fundamental fairness in the outcome of divorce actions, especially in long term marriages. The proposed law is sweeping and extreme.

This issue was also highlighted in today's Detroit Free Press in an article by Brian Dickerson. Click here for the full article.

Carol F. Breitmeyer of our firm has been one of the most vocal critics of these proposed bills since they were discovered. She has been in Lansing for the last few days, with other members of the SBM Family Law Section, doing everything within her power to see that these radical bills do not become the law in Michigan.

Monday, June 20, 2011

A Child’s Right: Second Parent Adoption

This article was recently published in the Michigan Family Law Journal.

By: Carol F. Breitmeyer

Legislation has been introduced in the Michigan House and Senate to permit second parent adoption. The proposed legislation would permit unmarried couples, gay, lesbian and heterosexual parents to adopt children. This would include children these parties may already be raising and open up the possibility of adoption for thousands of currently unadopted children in Michigan.

Second parent adoption permits a same sex parent to co-adopt a child with another parent, even in cases where one parent is the biological parent. It would also permit one person to adopt the child of another family member or an unmarried heterosexual couple to jointly adopt. Similar legislation has been introduced for many years, but languishes each year without affirmative action. More than a dozen legislators have co-sponsored this legislation including the primary sponsors Representative Jeff Irwin and Senator Rebekah Warren from Ann Arbor and others including Representative Jim Townsend (Royal Oak) and Representative Ellen Cogen Lipton (Huntington Woods). This bill was referred to the Committee on Families in February once again calling into question the future of this important legislation.

The new reality of what constitutes “family” today cannot be ignored. Thousands of children are being raised by families headed by same sex parents. This bill affords the same protections to households headed by same sex parents as children being raised by married parents. Second parent adoption provides fundamental legal rights to both the parent and child. Without the adoption, a child cannot inherit from the “second” parent. The child does not have standing in tort actions and is denied social security benefits, child support and the like. Additionally, without adoption, health care coverage may be denied and medical decisions cannot be made by the “second” parent. Perhaps most important of all is that the actual parent/child relationship is threatened or terminated if the first parent breaks off the relationship. Genuine devastation to children’s lives now regularly occurs because of the lack of legal standing accorded to “second” parents.

Nationwide policies regarding second parent adoption differ widely. Second parent adoption is permitted in nine states and Washington, DC (California, Colorado, Connecticut, DC, Illinois, Massachusetts, New Jersey, New York, Pennsylvania and Vermont); some jurisdictions within about 16 other states have permitted second parent adoption.

In the past, some Michigan circuit courts have permitted the use of second parent adoption. Washtenaw County Circuit Court was a haven for “second” parents seeking legal protections for themselves and children and was widely utilized until 2002. Washtenaw County was the “go to” county for same sex parents to establish their legal rights and responsibilities relative to their child or children. Other counties scattered throughout Michigan have also accorded these rights to parents. There is still an occasional probate court which sees fit to undertake second parent adoption, but they are few and far between and fraught with great risk. Potential vacation of these orders could cause the legal loss of a parent to a child.

The history of second parent adoption in Michigan is worth mentioning. In 2002, Washtenaw County Court Chief Judge Archie Brown issued an administrative order directing the Washtenaw Circuit Court judges to stop effectuating second parent adoptions. The cases were reassigned to the Chief Judge and effectively shut down second parent adoption. It was unclear whether he had the administrative authority to do so and a great hue and cry from family law advocates went out. This fell on deaf ears. In 2004, Michigan Attorney General Cox issued an opinion (#7160) which confirmed the Washtenaw County Chief Judge Archie’s judicial directive to halt all second parent adoptions. It was widely reported that then Justice Maura Corrigan requested the cessation of the second parent adoptions in Washtenaw County. Today former Justice Corrigan is the director of the Michigan Department of Human Services. Thousands of foster children in the State of Michigan are seeking families. Opening the door to the possibility of same sex partners parenting foster children could relieve the pressure on the system and provide children with loving homes, if only the state would reconsider it’s entrenched policies.

It was clear from the recent recision of “don’t ask don’t tell” that attitudes have dramatically shifted in a relatively short period of time. There simply is no turning parents exist, they have children. Children of homosexual parents ought to be entitled to the same protections under the law as children of heterosexual parents. No genuine legal justification exists which would deny the child the equal opportunity to be parented by both parents. Passage of the law simply would grant to those parents who choose, the opportunity to live responsibly and adopt.

First and foremost, our obligation to provide fair laws for all our children can be improved by the adoption of the second parent adoption legislation. Secondly, there is an economic argument to be made both in attracting and retaining our citizens in Michigan and in moving many youngsters out of foster care, off state-paid Medicaid, and into the homes of families who can provide love and support to these children. Our refusal as a state to address pressing issues such as second parent adoption, surrogacy and domestic partnership does not bode well for the children of our state, nor their parents. Further, I would argue that our unenlightened attitude revealed in part by the lack of progressive legislation holds us back economically as well.

The nation as a whole has moved along dramatically in the realm of same sex issues in the last several years. Today the notion of providing two loving parents for a child is something virtually all agree on, even if citizens disagree about “marriage” vs “civil union”. President Barack Obama through the Unites States Attorney General recently articulated a significant policy shift relative to the Defense of Marriage Act. This shift also reflects a changed perspective of Americans regarding the acceptance of the “non-traditional” family form.

Court driven remedies exist in addition to the possibility of amending the body of child custody laws or enacting new legislation. For example, recently the Supreme Court of Montana grappled with the issue of same sex co-parents. Montana does not recognize same sex marriage but none the less the Court found that legal standing exists in a case where a “partner” mother had assumed a parental role. The Court found that a balancing act or something similar to our best interest factors ought to apply. This approach protects children when no adoption has taken place. No appellate court in Michigan has taken this position; the Court of Appeals came close in Barnett v Clemmer, 208 Mich App (2008), but with a crucial difference that the adoption legally occurred in Illinois.

Michigan has long permitted step-parent adoption, according parental rights and benefits to a legal stranger the parent married. Arguably, this statute was created to protect the child, to encourage stability. Query: Why should the child of same sex parents be treated differently? Currently Michigan’s joint adoption law is being interpreted to limit joint adoption to married individuals.

The time has come for the passage of this important legislation. It is clear to this writer the best interests of the child ought to prevail in all decisions relative to the interpretation of existing law or the enactment of new laws. Partisanship and false “morality” must fall away in light of the extremely strong equitable, legal and policy arguments. Where a child has an opportunity to have two loving parents it ought to be made available. Logic, clear legal thinking and a strong moral imperative dictate that Michigan embrace the second parent adoption law.

1. House Bill 4249 and Senate Bill SB0167.

2. Second parent adoption is the practice of the non-biological or non-legal parent adopting their child, providing to the child and second parent the legal connection/standing necessary for health and parenting purposes. For example, biological mother and partner mother together raise a child. Biological mother leaves the partner. Even after years and years of co-parenting and nurturing the child, partner mother (second parent) has no legal right to have parenting time with her child. The child is potentially completely cut off from the partner mother – all at the whim of the biological mother, regardless of the best interests of the child.

3. Human Rights Campaign, (accessed May 2011).

4. Kulstad v Manciani,__P3rd__.2009 MT 326, 2009, WL3179441

For more information, contact us at Hickey, Cianciolo, Fishman & Finn, PC

Monday, June 13, 2011

Co-Parenting Tips for Families

A great article by Lynn Meredith Schreiber appears in this month's edition of Metro Parent and offers great tips for divorced or separated couples trying to make it work when it comes to the dynamics of co-parenting. Studies show that children of parents who work well together are more stable and adjusted.

For the full article, click here.

Wednesday, June 1, 2011

Madoff Victim Seeks Divorce Do-Over

By: Peter Lattman, New York Times

After 33 years of marriage, Steven Simkin and Laura Blank divorced in 2006. They agreed to split their considerable wealth equally. She got the apartment on the Upper East Side; he got the house in Scarsdale, N.Y.

Afterward, they spoke infrequently, mostly concerning their two grown sons.

More than two years later, Ms. Blank received a voicemail message that stunned her: Mr. Simkin wanted to revise their settlement. She refused, and he sued.

For the full article, click here.