Case: Markle v. Markle (Unpublished) [click links for full text]

Decided: August 14, 2007

Facts: Plaintiff filed his complaint for divorce and petition for temporary custody of the children in Michigan on May 28, 2003, but omitted the affidavit required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Van Buren Friend of the Court mailed plaintiff forms on June 2, 2003 to rectify the omission. On June 4, 2003, Defendant filed an ex parte application for a personal protection order in Texas. The Texas court granted the protection order, which was served upon plaintiff on June 12, 2003. The Friend of the Court received Plaintiff's completed UCCJEA affidavit on June 16, 2003.

The divorce was scheduled for trial on January 12, 2004. On that date, the parties’ attorneys told the court that although they had yet to agree on a division of property, they had reached a settlement on all but two aspects of the primary issues of custody and parenting time with the minor children. The Michigan trial court accepted the parties' agreement, made a ruling, and entered a judgment of divorce on October 3, 2005. The judgment incorporated the parties' stipulation regarding custody and parenting time.

Plaintiff appealed and defendant cross-appealed.

First, Defendant argued that the Michigan custody proceeding was improperly commenced because plaintiff initially omitted the UCCJEA affidavit required by MCL 722.1209 and MCR 3.206(A)(3). Defendant also argued that the Michigan custody proceeding was improperly commenced because plaintiff failed to disclose the Texas protective order proceeding when he finally filed his UCCJEA affidavit.

According to defendant, the Michigan proceeding was never properly commenced, so Michigan could not be the children’s home state because they did not reside in Michigan with plaintiff “at least six consecutive months immediately before the commencement of the proceeding" as required by the UCCJEA.

Finally, defendant argued that although Texas lacked jurisdiction to make an initial child custody determination under MCL 722.1201(1)(a), (b), (c), or (d), Texas had 'temporary emergency jurisdiction' under Texas' enactment of the UCCJEA.

Analysis: The Court of Appeals disagreed with each of Defendant's claims. It held that the Michigan action was properly commenced because plaintiff filed his UCCJEA affidavit June 16, 2003. The court noted when required information is omitted, MCL 722.1209(2) allows a trial court to stay a proceeding until the information is provided.

As to plaintiff's alleged failure to disclose the Texas proceeding in the Michigan filing, The Court of Appeals held: "The record is unclear whether, plaintiff was aware of the Texas proceeding at the time he executed the affidavit. It is true that the FOC received plaintiff’s UCCJEA affidavit on Monday, June 16, 2003, after plaintiff had been served a copy of the temporary ex parte order on Thursday, June 12, 2003. But if one allows time for mailing and processing and considers that a weekend intervened, defendant is unable to prove that plaintiff executed his UCCJEA affidavit after receiving notice of the Texas protective order proceeding."

The Court then turned to plaintiff's appeal. The parties had stipulated to certain custody and parenting time terms. One of those terms was that “while the defendant remains in Michigan,” she would have regular parenting time on alternate weekends and alternating holidays. The Court Of Appeals observed that while stipulations are agreements between the parties and are generally construed as contracts, contract principles do not govern child custody matters. In Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835 (2004), the Michigan Supreme Court held that “where the parties have agreed to a custody arrangement,” the trial court is not required “to conduct a hearing or otherwise engage in intensive fact-finding.” Instead, the court must “satisfy itself concerning the best interests of the children. When the court signs the order, it indicates that it has done so. A judge signs an order only after profound deliberation and in the exercise of the judge’s traditional broad discretion.”

The Court of Appeals opined that the trial court had in fact satisfied itself that the agreement comported with the best interests of the minor children. According to the Court: "With respect to the alternate weekend and holiday parenting time, we conclude that no basis exists to reverse the trial court. Plaintiff has not established that the trial court clearly erred in determining the parties had not made their custody and parenting time stipulation contingent on defendant’s moving out of Michigan at the end of the 2004-2005 school year. Moreover, plaintiff makes no argument that the trial court’s ruling is contrary to the best interests of the children. Consequently, we find no abuse of discretion in the trial court’s rulings regarding custody or parenting time."

Establishing paternity means determining that the biological father of a child that is born out of wedlock is in fact the legal father.

How is paternity established?

If the mother of a child is married when the baby is born, her husband is presumed to be the father, unless a court order or judgment says otherwise. If the mother has been divorced or widowed for less than ten months, her husband at the time of conception is presumed to be the father, unless a court order or judgment says otherwise. If the mother is not married at the time of conception or birth, paternity can be established by both parents signing a voluntary Affidavit of Parentage and filing it with the Michigan Department of Community Health's Office of the State Registrar. The birth certificate is legally insignificant in this regard. 

Paternity can also be established by filing a lawsuit with the Court. Either the mother or the father may file a Court action to establish paternity. If the child is receiving public assistance, the Michigan Family Independence Agency, via the county prosecutor's office, may file to establish paternity on behalf of the mother. Once the Court is involved, it may order DNA tests to establish paternity. An alleged father can admit paternity and be established as a child's legal father without a paternity test.

Why should paternity be established by a court?

Even if there is an Affidavit of Parentage filed with the State of Michigan, the biological father has no automatic right to custody or parenting time, nor is he automatically obligated to pay child support. In Michigan, section 6 of the Acknowledgment of Parentage Act (i.e. MCL 722.1106), provides that after a mother and father sign an acknowledgment of parentage, the mother is presumed to have custody of the minor child unless otherwise determined by the court or otherwise agreed upon by the parties in writing. Only after the Court enters a judgment or an order, does the father have official rights to custody, parenting time. Only after the Court enters a judgment or an order, is the father required to pay child support.

When can a paternity action be filed in the court?

An action under the Michigan Paternity Act may be commenced during the pregnancy of the child's mother or at any time before the child reaches 18 years of age.

Section 7(1)(b) of the Child Custody Act states: “Parenting time of the child by the parent is governed by Section 7a.” Section 7a(1) begins with the statement, ”Parenting time shall be granted in accordance with the best interests of the child.” Case law has established that Section 3, which provides the statutory definition of “best interests of the child”, is applicable to parenting time issues.

Studies demonstrate the adverse consequences that can follow when the children do not have a relationship with both parents. Other studies demonstrate that there is a relationship between the participation of a parent in the lives of his or her children and the willingness of that parent to provide support to the children, including direct support in addition to that which is court ordered.

The goal of any parenting time plan should be to ensure that children have a relationship with both parents that, as nearly as possible, encourages continued parental responsibility and promotes continued parental access.

Parenting time should not be viewed as a portion of the children’s time allocated to a parent, but rather a portion of a parent’s time reserved for the children. To this end, parenting time plans should offer structure but allow flexibility. For this reason, more structure will be necessary as parenting time plans move across the spectrum from a shared parenting time arrangement to a supervised parenting time plan. In between are parenting time plans that offer some flexibility but contain enough structure to remove obstacles that could interfere with the success of the parenting time plan.

In order to determine the length, frequency and type of parenting time, the court considers several factors (MCL 722.27a).

1. The existence of any special circumstances or needs of the child.
2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
3. The reasonable likelihood of abuse or neglect of the child during parenting time.
4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.
6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
7. Whether the parent has frequently failed to exercise reasonable parenting time.
8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
9. Any other relevant factors.

The emotional challenges and unresolved issues between separated parents may interfere with shared parenting. Children may find themselves torn between their desire to have a relationship with both parents and their desire to avoid the negative feelings associated with their parents’ relationship. Parents may place their children in awkward positions by using the children to deliver messages, or to act as a spy to report information back to the parent. Some parents may also use parenting time to exert control over the other parent or to express anger and dissatisfaction about the other parent to the detriment of a children’s well-being.

The more difficulties the parents have with the dissolution of their own relationship, the less discretion they may be capable of exercising. A structured parenting time schedule may assist parents who work poorly together. Structure will also help the children by providing a stable routine. When the parents work well together, a less structured schedule may be sufficient. When the children grow older, the same developmental stages that cause the children in intact families to spend less time with their parents are present for those families that have been reorganized by the parents’ separation. This will require more flexibility in the parenting time schedule. Structuring parenting time to meet the goal of stability will eventually allow the parties to treat their children’s time with the other parent as a separate component of the parent/child relationship.

In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions. MCL 722.27a. Examples of such terms and conditions include:

1. Division of the responsibility to transport the children.
2. Division of the cost of transporting the children.
3. Restrictions on the presence of third persons during parenting time.
4. Requirements that the children be ready for parenting time at a specific time.
5. Requirements that the parent arrive for parenting time and return the children from parenting time at specific times.
6. Requirements that parenting time occur in the presence of a third person or agency.
7. Requirements that a party post a bond to assure compliance with a parenting time order.
8. Requirements of reasonable notice when parenting time will not occur.
9. Any other reasonable condition determined to be appropriate in the particular case.

According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper. Evidence is given that among college-educated couples, the divorce filing rate by women approaches 90%.

In their study titled "Child Custody Policies and Divorce Rates in the US," Kuhn and Guidubaldi find it reasonable to conclude that women anticipate advantages to being single, rather than remaining married.

When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and the resulting financial child support, maintaining the marital residence, receiving half of all marital property, and gaining total freedom to establish new social relationships. In their detailed analysis of divorce rates, Khun and Guidubaldi conclude that acceptance of joint physical custody may reduce divorce. States whose family law policies, statutes, or judicial practice encourage joint custody have shown a greater decline in their divorce rates than those that favor sole custody.

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Divorce".  

An annual study in the UK by management consultants Grant Thornton estimates the main causes of divorce based on surveys of matrimonial lawyers. The main causes in 2004 (2003) were:

• * Extramarital affairs - 27% (29%)
• * Family strains - 18% (11%)
• * Emotional/physical abuse - 17% (10%)
• * Mid-life crisis - 13% (not in 2003 survey)
• * Addictions, e.g. alcoholism and gambling - 6% (5%)
• * Workaholism - 6% (5%)

According to this survey, men engaged in extra-marital affairs in 75% (55%) of cases; women in 25% (45%). In cases of family strain, women's families were the primary source of strain in 78%, compared to 22% of men's families.

Emotional and physical abuse were more evenly split, with women affected in 60% and men in 40% of cases. In 70% of workaholism-related divorces it was men who were the cause, and 30% women.

The 2004 survey found that 93% of divorce cases were petitioned by women, very few of which were contested.

53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Regarding divorce settlements, as defined by this survey women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The 2004 report concluded that campaigns like that of Fathers 4 Justice must succeed in increasing the percentage of shared residence orders, in order for more equitable financial divisions to become the norm.

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Divorce".  

In the United States, in 2005 there were 7.5 new marriages per 1,000 people, and 3.6 divorces per 1,000, a ratio that has existed for many individual years since the 1960s. As many statisticians have pointed out, it is very hard to count the divorce rate, since it is hard to determine if a couple who divorce and get back together in that same year should be considered a divorce, so there is in fact no predictive relationship between the two annual totals. This method does not take account of the length of marriage; just the fact that a certain percentage of people were divorced and a certain number of people are married, rendering the statistic problematic. Nonetheless, the claim that "half of all marriages end in divorce" became widely accepted in the US in the 1970s, on the basis of this statistic, and has remained conventional wisdom. Pollster Lewis Harris in his 1987 book "Inside America" wrote, "the idea that half of American marriages are doomed is one of the most specious pieces of statistical nonsense ever perpetuated in modern times."

To establish an actual divorce rate requires tracking and analyzing significant samples of actual marriages through decades, which is not an easy task. Recent US scholarship based on such long-term tracking, reported for example in the New York Times on April 19, 2005, has found that about 60% of all marriages that result in divorce do so in the first decade, and more than 80% do so within the first 20 years; that the percentage of all marriages that eventually end in divorce peaked in the United States at about 41% around 1980, and has been slowly declining ever since, standing by 2002 at around 31%. Some have attributed this decline to the popularity of cohabitation without marriage. While in the 1960s and 1970s there was little difference among socioeconomic groups in divorce rates, diverging trends appeared starting around 1980 (e.g., the rate of divorce among college graduates had by 2002 dropped to near 20%, roughly half that of non-college graduates).

In the decades following introduction of no-fault divorce laws, there was an extraordinary increase in divorce rates, and more recent research has clarified that US divorce rates had been on a gentle increase since the 1890s (with a short-term decline during the Great Depression and a spike just after World War II). The long-term rate of increase steepened with the advent of no-fault divorce laws in the late 1960s; the gradual decline starting in the early 1980s has continued for a quarter-century thus far, often attributed to increased social acceptability of co-habitation without the benefit of marriage.

States in the US handle billions of dollars in alimony and child support arrangements, which commonly result from divorces. According to a 2003 US census report, 43.7% of custodial mothers and 56.2% of custodial fathers, are divorced or separated. A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004.

The divorce rate is generally low among Muslims, in comparison to other religious groups. This may be due to the somewhat strict limitations generally placed on divorce in Islam, as well as a very strong culturally based stigma associated with it. However, at least in some Muslim populations, that rate may be rising. For example: in 2004 in Singapore (which has an 18% Muslim population) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1,000 marriages, a ratio 3 times higher than Malaysia, and 5 times higher than Indonesia.

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Divorce".  

In Troxel v Granville, 530 US 57, 65; 120 S Ct 2054, 2060 (2000), the Supreme Court struck down a Washington grandparent visitation statute because it unconstitutionally infringed on parents' fundamental constitutional rights. According to the Supreme Court, "the interest of parents in the care, custody and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court." The Court stated that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import." In fact, the Court flatly declared that parents have a fundamental right to the "care, custody and control of their children," and that grandparent visitation cases implicate this fundamental right.

The Presumption Against Grandparents' Rights

The U.S. Supreme Court requires state courts considering non-parent visitation petitions to apply "a presumption that fit parents act in the best interests of their children." Troxel, 530 US at 69; 120 S Ct at 2061, 2062. Troxel requires that State courts must give "special weight" to a fit parent's decision to deny non-parent visitation. "Choices [parents make] about the upbringing of children . . . are among associational rights . . . sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." MLB v SLJ, 519 US 102, 116-117 (1996). This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference. See, e.g., Comstock v Group of Institutional Investors, 335 US 211, 230 (1948); Tibbs v Florida, 457 US 31 (1982). The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will only be overcome by some compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest.

Michigan's Solution to the 'Problem'

On January 3, 2005, the Grandparenting Time Bill was signed into law by Governor Jennifer Granholm, after having been unanimously passed by the Michigan House and Senate. The law creates new "rights" for grandparents following the Michigan Supreme Court Decision in Derose v Derose, 469 Mich 320; 666 NW2d 636 (2003), which held Michigan's former grandparent visitation law to be unconstitutional.
In Derose, the Michigan Supreme Court asked the Michigan Legislature to redraft the Michigan Law in order to make it constitutional, and to allow grandparents and grandchildren to have access to each other in appropriate circumstances. The legislature enacted MCL 722.27b, the statute set forth below. MCL 722.27b enacts safeguards to protect parental rights as guaranteed by the Constitution, as required by the Michigan Supreme Court. When grandparents have been denied access to grandchildren, the new law gives grandparents an opportunity to go to court to show why they should have a right to see them.

Circumstances Under Which Grandparenting Time May Be Permitted

MCL 722.27b allows grandparents to request relief from the court to see their grandchildren if they have been denied by the parent in any of the following circumstances:

1. If there is a divorce, separate maintenance, or annulment action pending between the child's parents, or such an action has already been finalized; or
2. The grandchild was born out-of-wedlock and the parents are not living together. However, this only applies to grandparents of the alleged father if he has been declared legally to be the father of the child by a proper court proceeding and the child's father provides child support in accordance with his ability to provide support or care for his child; or
3. Legal custody of the child has been given to a person other than the child's parent or the child does not live in the parent's home. This is other than a child who has been adopted by a person who is not the child's step-parent; or
4. A grandparent has taken care of a grandchild during the year before they request visitation, whether or not they have done so by a valid court order.

The Petition For Grandparenting Time

If a grandparent falls into any of the above categories and has been denied visitation, the grandparent has a right to bring an action in the family court that has heard the prior action, such as a divorce or paternity action. If no prior action has been filed, a new action must be brought in the circuit court in the county where the grandchild resides. The law imposes a notice requirement: Anyone with legal custody or an order for parenting time of the child, must be given notice of the grandparenting action or motion.

Overcoming the Presumption Against Grandparenting Time

On filing an action ormotion for grandparenting time, the court must conduct a hearing. At the hearing, the court will presume that a "fit" parent's decision to deny a grandparent visitation request does not create harm to the child's mental, physical or emotional health. The grandparent who is requesting visitation has the burden to show the court by a preponderance of evidence (meaning more than 50%), that the parent's decision to deny grandparenting time does in fact creates mental, physical, or emotional harm to the grandchild. If the grandparent cannot overcome the presumption, the court must dismiss the grandparent's petition. If the grandparent overcomes the presumption (that is, that denial of grandparenting time has a potential to create a risk of harm either to the grandchild's physical, mental or emotional health), then the court moves on to the next step.

1. a. The love, affection, and other emotional ties existing between the grandparent and the child.
2. b. The length and quality of the prior relationship between the child and the grandparent, the role performed by the parent, and the existing emotional ties of the child to the grandparent.
3. c. The grandparent's moral fitness.
4. d. The grandparent's mental and physical health.
5. e. The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.
6. f. The effect on the child of hostility between the grandparent and the parent of the child.
7. g. The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.
8. h. Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.
9. i. Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated issue.
10. j. Any other factor relevant to the physical and psychological well-being of the child.

Mediation and the Friend of the Court

If the court determines that the grandparent has met the standard for rebutting the presumption, the court may attempt to resolve the dispute by referring the grandparent's request to mediation or to the Friend of the Court. The court can decide all issues for itself if it chooses not to make a referral.

When Both Parents Oppose Grandparenting Time

The Grandparent Visitation Law does set forth a provision that if two fit parents, which does not include a step-parent, sign an affidavit opposing the grandparent visitation request, then the court must dismiss a grandparent's request for such visitation.

Standard of Proof in the Event of a Constitutional Challenge

The Legislature enacted a safeguard that applies if a challenge to this law is ever made in regard to the standard of proof to which the Michigan Legislature has set forth, which is currently the preponderance of evidence. If this is ever appealed into the appellate courts, and the Michigan Supreme Court later determines that the burden of proof should be made greater than preponderance of the evidence, such as a clear and convincing evidence standard, then the statute would automatically revert from the preponderance of the evidence to a clear and convincing evidence standard. The legislation intentionally put this into the body of the law in order to make sure that the Michigan law will never be ruled unconstitutional again, and that grandparents will always be able to maintain their right to see their children, even if the burden of proof is changed to the higher standard that more clearly protects the "special weight" that must be given to a fit parent's decision to deny non-parent visitation. Troxel v Granville, 530 US 57, 65; 120 S Ct 2054, 2060 (2000).

No Fault Divorce

Under Michigan's no-fault divorce system, a marriage partner does not need to show that the other marriage partner did or was at fault to obtain a divorce. The only ground for divorce in Michigan is the no-fault ground, i.e., "there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved" MCL 552.6(1). Although proof of fault is not necessary to obtain a divorce, fault can be relevant in deciding custody, parenting time, property and debt division, and spousal support.

In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States, South Korea, and members of the European Union (with the exception of Malta, where all civil marriages are for life, because civil divorce is banned).

In the USA, Canada, the United Kingdom, and some other developed Commonwealth countries, this divorce boom developed in the last half of the twentieth century. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage, as there is little remaining social stigma attached to unwed mothers in some societies. Japan retains a markedly lower divorce rate, though it has increased in recent years. The subject of divorce as a social phenomenon is an important research topic in sociology. In fact, the statistics of a survey conducted by Citibank on divorce in the United States suggested that more than fifty percent of divorced couples cited money problems as the cause of their divorce.

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Divorce".