Q: My ex keeps changing the summer schedule on me, and now she is asking to change next year, for the school district our kids are enrolled in, what should I do?
A:You really have two questions here, first on the summer parenting time, and the second is change of schools.
First:
If you have a court order that summarizes when and where parenting time should take place in the summer months, both of you have to follow it.
However, if you and she have had a verbal agreement, where each of you agrees to what to do with the kids in the summer, it might be hard to say "she's violating the order," since there is no specific times - in writing - that you can show she hasn't done.
Sad to say, it would have been better to get everything settled in advance of when summer time came, but I understand that sometimes this is hard to do, since camps have waiting lists, day care has staff changes, etc., during the summer months. The best thing is to keep in communication with her, the camp, the day care, etc., as the summer is being planned -- that way no unpleasant surprises are waiting for anyone.
Second:
Change of schools is a whole different issue. Most parents who share custody of children share legal custody of the children. These are the decisions in a child's life such as: where to attend school, where and when to go to church (if you do attend church), medical care, and other issues where it is important for the parents to agree.
In other words, one parent typically can't unilaterally decide that the children will change schools.
It could be that your judgment of divorce (or custody) states what school district the children are to attend. But if it doesn't, you should get separate legal advice on this issue to see if you need a motion to help decide the proper school district.
There is a good bit of case law on this issue - so again - I suggest you have an attorney review your current orders, and facts to help you.
Showing posts with label child custody. Show all posts
Showing posts with label child custody. Show all posts
Monday, July 2, 2018
Monday, September 11, 2017
Q: What's an evidentiary hearing? The judge just ordered that at my motion yesterday
Q: What's an evidentiary hearing? I was in court yesterday for a motion, and the judge ordered that my husband and I get a date for an evidentiary hearing. I have no idea what that means.
A: An evidentiary hearing is a mini-trial on one issue in a case. It sounds like you may be in a divorce case, so I assume that you and your husband will have a chance to show what "evidence" you have to plead your case.
This might be about custody after the divorce, for example, so this means that you would need to bring (and/or request the other side to bring) evidence to court to show whether custody should be shared, or joint custody. The judge (or a referee, perhaps) will listen to the evidence, perhaps the testimony of the parties, and whoever else the parties might bring to testify. At some point (not necessarily at the hearing), the judge will issue an opinion (another word for his or her decision on this issue), which will be binding on this issue in this case. ** if it is about custody, focus your thinking on the best interests of the child factors, which can be found here:
I highly recommend that you do some discovery in advance of the hearing. If this means hiring an attorney, so be it, because you will only get one shot to make your case. If you aren't prepared for the hearing, and you try to appeal a decision, the appeal can easily be shot down if it's shown that you could have presented the same evidence at the hearing.
Discovery would be gathering evidence you need, either from your own records, or from the husband's records. For example: custody factors include the mental and physical health of the parties. If you want to include that information, you may need to request it from a medical provider. Your attorney would be able to request it on the correct court forms. This would be an advantage if, perhaps, you wanted to argue that your husband's health is too poor for him to be able to care for the children, or that he has mental health issues to the extent that he can't care for children properly, as his own mental health issues may interfere.
A: An evidentiary hearing is a mini-trial on one issue in a case. It sounds like you may be in a divorce case, so I assume that you and your husband will have a chance to show what "evidence" you have to plead your case.
This might be about custody after the divorce, for example, so this means that you would need to bring (and/or request the other side to bring) evidence to court to show whether custody should be shared, or joint custody. The judge (or a referee, perhaps) will listen to the evidence, perhaps the testimony of the parties, and whoever else the parties might bring to testify. At some point (not necessarily at the hearing), the judge will issue an opinion (another word for his or her decision on this issue), which will be binding on this issue in this case. ** if it is about custody, focus your thinking on the best interests of the child factors, which can be found here:
I highly recommend that you do some discovery in advance of the hearing. If this means hiring an attorney, so be it, because you will only get one shot to make your case. If you aren't prepared for the hearing, and you try to appeal a decision, the appeal can easily be shot down if it's shown that you could have presented the same evidence at the hearing.
Discovery would be gathering evidence you need, either from your own records, or from the husband's records. For example: custody factors include the mental and physical health of the parties. If you want to include that information, you may need to request it from a medical provider. Your attorney would be able to request it on the correct court forms. This would be an advantage if, perhaps, you wanted to argue that your husband's health is too poor for him to be able to care for the children, or that he has mental health issues to the extent that he can't care for children properly, as his own mental health issues may interfere.
Thursday, February 9, 2017
Q: What's a reasonable retainer for a divorce?
Q: What's a reasonable retainer for a divorce? Can't I just do this myself in court without an attorney?
A: Thanks for asking. If you are looking to hire an attorney for divorce, expect to hear many different amounts for retainers. Some attorneys will quote higher than they may need to, but will refund the unused portion of the retainer when your case is done.
A retainer is an amount that an attorney estimates toward how much your case might cost, in total, or for a large portion of the case. That doesn't mean that the retainer amount will cover the whole fee for your case. Again, you may have a refund once your case is done, depending on how your case goes, whether a lot of motions are needed, and how much your spouse decides to fight.
Many attorneys will also tell you their hourly rate when you hear their retainer amount. This is because the retainer is a down payment, which usually is placed in an account. The attorney then invoices against the retainer for each hour that the attorney works on your case. For example, if an attorney charges a $3,000 retainer, and has an hourly rate of $200 per hour, your retainer will be gone once your attorney has worked 15 hours on your case.
Your second question was "can I do this myself without an attorney?" Yes, a party can represent him or herself in court. But I ask you: Is this wise? Even if it seems cost effective? Your divorce has to cover many topics, such as child custody, parenting time, insurance, division of assets and debts (including retirement accounts, property, credit card debts), and child support, among others. Do you want to do this without any idea of how to go about it, when you are also feeling emotional and uncertain? Or would it be better to let a professional, who's not married to your spouse, argue for you?
Best of luck in your situation.
Yours,
Nancy
A: Thanks for asking. If you are looking to hire an attorney for divorce, expect to hear many different amounts for retainers. Some attorneys will quote higher than they may need to, but will refund the unused portion of the retainer when your case is done.
A retainer is an amount that an attorney estimates toward how much your case might cost, in total, or for a large portion of the case. That doesn't mean that the retainer amount will cover the whole fee for your case. Again, you may have a refund once your case is done, depending on how your case goes, whether a lot of motions are needed, and how much your spouse decides to fight.
Many attorneys will also tell you their hourly rate when you hear their retainer amount. This is because the retainer is a down payment, which usually is placed in an account. The attorney then invoices against the retainer for each hour that the attorney works on your case. For example, if an attorney charges a $3,000 retainer, and has an hourly rate of $200 per hour, your retainer will be gone once your attorney has worked 15 hours on your case.
Your second question was "can I do this myself without an attorney?" Yes, a party can represent him or herself in court. But I ask you: Is this wise? Even if it seems cost effective? Your divorce has to cover many topics, such as child custody, parenting time, insurance, division of assets and debts (including retirement accounts, property, credit card debts), and child support, among others. Do you want to do this without any idea of how to go about it, when you are also feeling emotional and uncertain? Or would it be better to let a professional, who's not married to your spouse, argue for you?
Best of luck in your situation.
Yours,
Nancy
Monday, May 9, 2016
Q & A: My son's dad and I broke up. I never want to deal with him again. Can I get him to sign off his rights to our son?
Q : My son's dad and I broke up. We've been living together for 5 years, and our son is 3 years old. I never want to deal with my ex-boyfriend again. Can I get him to sign off his rights?
A: A lot of people have the interesting idea that it's an easy process to change another person's rights to custody, simply because that parent doesn't want to continue any relationship at all with the other parent.
Your question focuses on Family law, specifically child custody, parenting time, and child support. One thing to keep in mind is that Family court is a court that sits in equity. Equity doesn't mean everything is split down the middle, but rather that the court make a decision that's fair to both parents.
If there are no court orders in place, and the couple is not married, the court will place primary physical custody with the mother. The unmarried father will have to assert his right to parenting time, but also be willing to take on the support responsibility, even if no support is ordered.
If either parent has applied for or received State Assistance in the state of Michigan, the office of the prosecutor (in the form of that county's Friend of Court offices) will begin a support action regardless (as the Assistance is paid by other tax payers, the support at that time is to re-imburse the state for that Assistance). The good thing about an action started by the FOC is that it also allows for a father to have reasonable parenting time.
A court will not let a parent "sign off" his or her rights without also making a decision in the custody matter. This goes back to the equity idea: it's not fair to take away one parent's rights simply because the other parent is tired of dealing with him or her.
Ask yourself, as a parent, if "signing off" is what is really best for the child. It's understood that these matters are full of emotion, but it's best if the child has a continuing relationship with the other parent, and that the child will get support financially from that parent as well.
Also, without evidence to the contrary, the court will presume that having a relationship with both parents is in the best interest of the child. The court will do what it can to encourage that relationship through its orders.
If you have other questions, please seek a private consultation with an attorney to determine a legal course of action.
A: A lot of people have the interesting idea that it's an easy process to change another person's rights to custody, simply because that parent doesn't want to continue any relationship at all with the other parent.
Your question focuses on Family law, specifically child custody, parenting time, and child support. One thing to keep in mind is that Family court is a court that sits in equity. Equity doesn't mean everything is split down the middle, but rather that the court make a decision that's fair to both parents.
If there are no court orders in place, and the couple is not married, the court will place primary physical custody with the mother. The unmarried father will have to assert his right to parenting time, but also be willing to take on the support responsibility, even if no support is ordered.
If either parent has applied for or received State Assistance in the state of Michigan, the office of the prosecutor (in the form of that county's Friend of Court offices) will begin a support action regardless (as the Assistance is paid by other tax payers, the support at that time is to re-imburse the state for that Assistance). The good thing about an action started by the FOC is that it also allows for a father to have reasonable parenting time.
A court will not let a parent "sign off" his or her rights without also making a decision in the custody matter. This goes back to the equity idea: it's not fair to take away one parent's rights simply because the other parent is tired of dealing with him or her.
Ask yourself, as a parent, if "signing off" is what is really best for the child. It's understood that these matters are full of emotion, but it's best if the child has a continuing relationship with the other parent, and that the child will get support financially from that parent as well.
Also, without evidence to the contrary, the court will presume that having a relationship with both parents is in the best interest of the child. The court will do what it can to encourage that relationship through its orders.
If you have other questions, please seek a private consultation with an attorney to determine a legal course of action.
Monday, March 21, 2016
Child Support modifications and arrears: A Michigan Family law Primer
A: That amount you didn't or can't pay will become an arrearage.
First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.
Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.
Q: What if I think the amount ordered should be different? I can't pay what I currently owe.
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.
Either party - the parent who pays, or the parent who receives support - can request modification, if that parent can show a change in circumstances.
Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]
A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.
A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not.
Otherwise, if no parties request a modification, a support review will be done typically every three years.
Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe?
A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved.
But typically modifications do not address arrears - they only modify the amount of support going forward. (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2)).
If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that. If the arrears are owed because the state is involved, since one parent receives state assistance, then the county prosecutor would also be involved.
Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount. Talk to your attorney about discharge of the amount you owe. Again, the parent receiving support has to consent to this as well.
Q: Can I go to jail for not paying the support amount?
Yes.
Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail. (These are also called OTSC hearings, short for Order to Show Cause).
In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter.
Tuesday, February 9, 2016
What's an unmarried man's rights to an unborn child? Can he claim paternity?
Q: I'm an unmarried father-to-be. My concern is that my ex (things went south after we found out she was pregnant), will try to move out of state, or keep my from seeing my child. Even though our relationship went south, doesn't mean that I want to be uninvolved with my child's life. What can I do? Can I claim paternity right now?
A: No, you can't. or at least, not yet.
Barring exceptional circumstances, a Michigan court is not going to issue an order to grant custody to the unmarried father of an unborn child.
The law currently will place custody of the newborn with the mother, unless there are those circumstances that would show the mother is a risk to the child already.
If a couple is married, there is a legal presumption that any child of those adults is a product of the marriage (although that presumption can be rebutted). By contrast, an unwed dad can't claim paternity, parenting time or custody rights (which are typically accompanied by a need to pay support for the child) until the child is born.
Once that child is born, the father needs to act to claim his rights to paternity, etc. He can do that by acknowledging paternity through singing the birth certificate, or through the assistance of an attorney (if, for example, the mother hides her pregnancy from the father who is then unaware of the child until after it is born).
A: No, you can't. or at least, not yet.
Barring exceptional circumstances, a Michigan court is not going to issue an order to grant custody to the unmarried father of an unborn child.
The law currently will place custody of the newborn with the mother, unless there are those circumstances that would show the mother is a risk to the child already.
If a couple is married, there is a legal presumption that any child of those adults is a product of the marriage (although that presumption can be rebutted). By contrast, an unwed dad can't claim paternity, parenting time or custody rights (which are typically accompanied by a need to pay support for the child) until the child is born.
Once that child is born, the father needs to act to claim his rights to paternity, etc. He can do that by acknowledging paternity through singing the birth certificate, or through the assistance of an attorney (if, for example, the mother hides her pregnancy from the father who is then unaware of the child until after it is born).
Monday, May 18, 2015
Child Support, Modifications and Arrears: a family law Q &A primer
Q: I've been making my child support payments, but sometimes I can't pay the monthly amount due. What happens now?
A: That amount you didn't or can't pay will become an arrearage.
First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.
Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.
Q: What if I think the amount ordered should be different? I can't pay what I currently owe.
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.
Either party - the parent who pays, or the parent who receives support - can request modification, if that parent can show a change in circumstances.
Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]
A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.
A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not.
Otherwise, if no parties request a modification, a support review will be done, typically every three years.
Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe?
A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved.
But typically modifications do not address arrears - they only modify the amount of support going forward. (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2))
If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that.
Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount. Talk to your attorney about discharge of the amount you owe. Again, the parent receuving support has to consent to this as well.
Q: Can I go to jail for not paying the support amount?
Yes.
Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail.
In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter.
A: That amount you didn't or can't pay will become an arrearage.
First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.
Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.
Q: What if I think the amount ordered should be different? I can't pay what I currently owe.
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.
Either party - the parent who pays, or the parent who receives support - can request modification, if that parent can show a change in circumstances.
Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]
A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.
A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not.
Otherwise, if no parties request a modification, a support review will be done, typically every three years.
Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe?
A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved.
But typically modifications do not address arrears - they only modify the amount of support going forward. (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2))
If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that.
Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount. Talk to your attorney about discharge of the amount you owe. Again, the parent receuving support has to consent to this as well.
Q: Can I go to jail for not paying the support amount?
Yes.
Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail.
In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter.
Thursday, June 5, 2014
How does child support get calculated? A Michigan family law primer
This article is intended to give a newcomer to Michigan courts some background information into child support. It is not intended as legal advice that is specific to a given situation. For more information, see the article "What is the Friend of the Court?"
Q: Who has a right to child support?
A: All children under age 18 (until they graduate from high school or are emancipated) have a right to child support from both parents. Both natural or adoptive parents have an obligation to give support, unless a court modifies or terminates the obligation, or the child becomes emancipated.
Generally, there is no obligation to support an unrelated child (however, the court may recognize an equitable parent.)
Q: When will a court order support?
A: A court has the power, or "jurisdiction," to order support when it is deciding a divorce, child custody action, paternity, or other family law case where minor children are involved.
Q: How is child support calculated?
A: The amount of support is calculated using the Michigan Child Support Formula (MCSF). The MCSF calculates a base support amount (that factors in things like ages of the children, income of the parties, child care expenses, medical expenses, and so on) that is adjusted for parenting time offsets.
The court will consider the amount suggested by the MCSF and order support either based on the formula, or deviating from the formula when appropriate.
The child support formula manual can be found here. Also here.
Link here to a child support calculator online. I can't testify as to how accurate it is.
Q: My spouse refuses to give me parenting time with the kids. Why should I keep paying support?
A: Because if you stop paying support, you will eventually accrue arrears, and face a show cause hearing for non-payment.
Yes, each parent should follow what ever parenting time schedule they agreed to. But this doesn't mean a support obligation goes away when the schedule changes. After all, kids have to eat, see the dentist, etc., regardless of who is taking care of them.
Depending on where you are in your case, you could talk to FOC to change your support amount, or do a motion to modify parenting time (after hiring an attorney) to get some action on seeing your kids. But don't stop paying support until the ordered support amount changes.
Q: Is it possible for a court to not issue a support order where the case involves minor children?
A: No. Because a court has a case with children, it will issue a support order, period, because the Michigan statute says it must. Also, courts have to consider the best interests of the child, which include how the child is living which is related to the amount of support that is ordered.
Q: Can a court deviate from the MCSF's suggested support amount?
A: Yes. A court can deviate from the suggested support amount when application of the MCSF would be unjust or inappropriate. When it does deviate, it has to state in writing what the suggested support amount is, and the reasons why it deviated.
Reasons to deviate can include, but are not limited to:
A child has special needs;
one or both parents are minors;
one or both parents have varying amounts of irregular or bonus income;
and so on.
Q: When will my child support obligation end? Can it ever change?
A: A child support obligation will most often end when the child is no longer 18, or has graduated from high school.
A parent who seeks a change to what they are paying can request to FOC or the court to modify their amount, but only if that parent can show a considerable change in circumstances (such as a much better paying job, or a large change in parenting time amount). The requested change needs to be greater than a 10 percent change per month.
Q: I have questions about child support that aren't answered here. What should I do?
A: Go to Office of Child Support for more information, or send me a question on this blog.
Q: Who has a right to child support?
A: All children under age 18 (until they graduate from high school or are emancipated) have a right to child support from both parents. Both natural or adoptive parents have an obligation to give support, unless a court modifies or terminates the obligation, or the child becomes emancipated.
Generally, there is no obligation to support an unrelated child (however, the court may recognize an equitable parent.)
Q: When will a court order support?
A: A court has the power, or "jurisdiction," to order support when it is deciding a divorce, child custody action, paternity, or other family law case where minor children are involved.
Q: How is child support calculated?
A: The amount of support is calculated using the Michigan Child Support Formula (MCSF). The MCSF calculates a base support amount (that factors in things like ages of the children, income of the parties, child care expenses, medical expenses, and so on) that is adjusted for parenting time offsets.
The court will consider the amount suggested by the MCSF and order support either based on the formula, or deviating from the formula when appropriate.
The child support formula manual can be found here. Also here.
Link here to a child support calculator online. I can't testify as to how accurate it is.
Q: My spouse refuses to give me parenting time with the kids. Why should I keep paying support?
A: Because if you stop paying support, you will eventually accrue arrears, and face a show cause hearing for non-payment.
Yes, each parent should follow what ever parenting time schedule they agreed to. But this doesn't mean a support obligation goes away when the schedule changes. After all, kids have to eat, see the dentist, etc., regardless of who is taking care of them.
Depending on where you are in your case, you could talk to FOC to change your support amount, or do a motion to modify parenting time (after hiring an attorney) to get some action on seeing your kids. But don't stop paying support until the ordered support amount changes.
Q: Is it possible for a court to not issue a support order where the case involves minor children?
A: No. Because a court has a case with children, it will issue a support order, period, because the Michigan statute says it must. Also, courts have to consider the best interests of the child, which include how the child is living which is related to the amount of support that is ordered.
Q: Can a court deviate from the MCSF's suggested support amount?
A: Yes. A court can deviate from the suggested support amount when application of the MCSF would be unjust or inappropriate. When it does deviate, it has to state in writing what the suggested support amount is, and the reasons why it deviated.
Reasons to deviate can include, but are not limited to:
A child has special needs;
one or both parents are minors;
one or both parents have varying amounts of irregular or bonus income;
and so on.
Q: When will my child support obligation end? Can it ever change?
A: A child support obligation will most often end when the child is no longer 18, or has graduated from high school.
A parent who seeks a change to what they are paying can request to FOC or the court to modify their amount, but only if that parent can show a considerable change in circumstances (such as a much better paying job, or a large change in parenting time amount). The requested change needs to be greater than a 10 percent change per month.
A: Go to Office of Child Support for more information, or send me a question on this blog.
Tuesday, April 1, 2014
Choosing a family law attorney, Part Two
In Part One, we discussed ways of getting information on attorneys. Part Two will talk about the initial phone contact with the potential lawyer's offices.
Frequently asked questions:
1. Who answers the phone and how do they answer it?
A: Many attorneys do not answer their own phones. His or her schedule won't permit it perhaps, or the attorney prefers to have a gate keeper between himself or herself and the general public. Either way, you are a potential paying client, so you should feel welcomed, and not that you're an intrusion on otherwise valuable time. It's possible that you will have to leave a voice mail. If so, make sure you state whether the attorney can call you back, or not.
2. What kinds of questions should I ask? What kinds of questions should I be ready to answer?
A: Be prepared with a list of questions about your specific situation. For example, "I am thinking about filing for divorce, and I have three minor children." Or: "My ex-girlfriend left the state with our child, can I start a custody hearing?" Be specific, as the attorney can only answer what they are aware of. Don't be afraid to ask about costs.
If you have a specific date coming up, make sure you mention that, or it may not be addressed. For example, "I just left a custody hearing this morning, and the judge said to come back for an evidentiary hearing . . . "
Remember, attorneys are smart, not psychic! And it's entirely possible that some of your questions will need more time before they can be answered. This is why there is no "one-size-fits-all" divorces.
On the other hand, try to answer any questions that are asked. My office has a list of questions used for when a potential new client calls, so that I am aware of what next steps need to be taken for that case. We will always ask where you live, how long you've been married, and the ages of the children.
3. Scheduling the initial appointment and other matters.
It's possible that you'll be scheduled for either a phone consultation, or an in-office consultation. I prefer in-office consultations. I feel that it's easier, less rushed than a phone call, and allows the potential client (and attorney) feel more at ease with one another.
Please consider where your attorney is located, your own location, and the courthouse you'll be using. If you plan on making your attorney drive long distances, that's fine, but that might impact your cost overall.
4. The appointment is scheduled, now what?
It's possible the attorney will mail you information to fill out, or have you fill it out in the consultation. This information will help them start your case, and give you some legal answers. Either way, keep your appointment, or call to reschedule it if necessary.
Set aside enough time to drive to the appointment, depending on the time of day.
Bring any necessary documents with you, for example, anything you've received from the court, or that you feel will help the attorney to serve you better.
5. How much should I expect to pay?
A: This is a difficult question to answer. Attorneys have rules of professional ethics to guide them in setting fees. (MRPC 1.5) That said, a basic retainer could range from $850 to $5000, depending on the complexity of the legal issues involved, the experience of the attorney, and the novelty of the legal issues involved (more complex or unique issues can take longer to be addressed). And, the retainer may or may not cover your entire cost of the case, depending on how long it takes, and the nature of the parties involved (who will argue more over issues, you or your soon-to-be-ex?) Also, additional experts may be needed, from child psychologists to business valuation experts, depending on your situation.
Coming Next: Part Three: What to Expect in the Initial Consultation.
Frequently asked questions:
1. Who answers the phone and how do they answer it?
A: Many attorneys do not answer their own phones. His or her schedule won't permit it perhaps, or the attorney prefers to have a gate keeper between himself or herself and the general public. Either way, you are a potential paying client, so you should feel welcomed, and not that you're an intrusion on otherwise valuable time. It's possible that you will have to leave a voice mail. If so, make sure you state whether the attorney can call you back, or not.
2. What kinds of questions should I ask? What kinds of questions should I be ready to answer?
A: Be prepared with a list of questions about your specific situation. For example, "I am thinking about filing for divorce, and I have three minor children." Or: "My ex-girlfriend left the state with our child, can I start a custody hearing?" Be specific, as the attorney can only answer what they are aware of. Don't be afraid to ask about costs.
If you have a specific date coming up, make sure you mention that, or it may not be addressed. For example, "I just left a custody hearing this morning, and the judge said to come back for an evidentiary hearing . . . "
Remember, attorneys are smart, not psychic! And it's entirely possible that some of your questions will need more time before they can be answered. This is why there is no "one-size-fits-all" divorces.
On the other hand, try to answer any questions that are asked. My office has a list of questions used for when a potential new client calls, so that I am aware of what next steps need to be taken for that case. We will always ask where you live, how long you've been married, and the ages of the children.
3. Scheduling the initial appointment and other matters.
It's possible that you'll be scheduled for either a phone consultation, or an in-office consultation. I prefer in-office consultations. I feel that it's easier, less rushed than a phone call, and allows the potential client (and attorney) feel more at ease with one another.
Please consider where your attorney is located, your own location, and the courthouse you'll be using. If you plan on making your attorney drive long distances, that's fine, but that might impact your cost overall.
4. The appointment is scheduled, now what?
It's possible the attorney will mail you information to fill out, or have you fill it out in the consultation. This information will help them start your case, and give you some legal answers. Either way, keep your appointment, or call to reschedule it if necessary.
Set aside enough time to drive to the appointment, depending on the time of day.
Bring any necessary documents with you, for example, anything you've received from the court, or that you feel will help the attorney to serve you better.
5. How much should I expect to pay?
A: This is a difficult question to answer. Attorneys have rules of professional ethics to guide them in setting fees. (MRPC 1.5) That said, a basic retainer could range from $850 to $5000, depending on the complexity of the legal issues involved, the experience of the attorney, and the novelty of the legal issues involved (more complex or unique issues can take longer to be addressed). And, the retainer may or may not cover your entire cost of the case, depending on how long it takes, and the nature of the parties involved (who will argue more over issues, you or your soon-to-be-ex?) Also, additional experts may be needed, from child psychologists to business valuation experts, depending on your situation.
Coming Next: Part Three: What to Expect in the Initial Consultation.
Monday, March 31, 2014
How to choose a family law attorney, Part One
In Part One, we will help you work through the process of deciding who to call to start your divorce or custody case (or to represent you if your spouse has already filed for divorce).
Frequently asked questions:
1. Can't I represent myself in this?
A: Yes, you can. But that doesn't mean you should. Going into court and representing yourself is like do-it-yourself surgery performed by an amateur. When it comes to family law, you have a lot of things at stake: ownership of your home, custody of your child(ren), how your personal property might be divided, when and how often you can spend time with your child(ren), are only a few issues that a family law judge will decide for you. It's best to have an attorney, who can present the best side of your case to the judge, and help you get the best result possible.
Read this article for more information on issues that will be part of your family law case, or go to my website.
2. Aren't attorneys expensive?
A: It depends on what you think of as "expensive." Again, this is the most important area of your life, where the most intimate personal decisions in your life have been made. It makes sense to protect these interests, and not doing so may cost you more in the long run. Many attorneys will let you arrange a payment plan, as well.
3. How do I decide who to call?
A: There are many ways to go about this. The internet is the most popular search tool currently. But that doesn't mean you should just pick one of the first-listed attorneys when you type in your search terms.
Fact: Advertisers pay to be listed on Google. This is true for all areas that can be searched on Google, including legal services. The higher-cost advertisers will land on the first page, at the more popular times of the day. It's like having a billboard in rush hour traffic on a busy highway. The lower-cost ads show up less often, and at less popular times of the day. This is like having a billboard in a urban neighborhood.
I recommend good old word of mouth advertising over internet advertising. It's better to get a recommendation from someone who's used that service before you, whether it's a mechanic, or an attorney.
4. Ok, I talked to three or four people and got a short list of who to call. What now?
A: Once you've talked to people you know, you've gotten their feedback about what they liked (or didn't) about their attorney. Use the internet (or do a white pages search) to get that attorney's phone number. Then call the office to set up a consultation.
5. I'm too uncomfortable to talk to my friends and family about this now. How can I get a good recommendation?
A: There are other online services that "rank" attorneys. These are sites like Avvo, and Martindale Hubble, Lexis-Nexis, etc.
Fact: These sites are biased in favor of attorneys who play the game. For example, a lawyer who participates on Avvo (claims their profile, advertises, answers questions) will have a higher Avvo ranking than a lawyer who doesn't. For example, look at the ranking of a prominent national attorney (like Eric Holder, the current US Attorney General). Their ranking might be lower than some attorney who participates a lot on that site.
So go ahead and try those sites (Avvo, lawyers.com, etc.) but be warned that the information there isn't always an accurate reflection of what the attorney is actually like, so take it with a grain of salt. (For more information, read this article from About.com).
Or: if you think the sites might mislead you, or you feel you can't talk about this to people you know because it's too personal, use your local bar association for a referral. Lawyers pay to belong to this referral service, and give part of the fee you pay them back to the referral service. I participate in my local bar association's referral service, and think it's a great service to the public. (State Bar of Michigan referral, Grand Rapids Bar Association Referral).
Coming Next: Part Two: What to Expect in the Initial Phone Call.
Frequently asked questions:
1. Can't I represent myself in this?
A: Yes, you can. But that doesn't mean you should. Going into court and representing yourself is like do-it-yourself surgery performed by an amateur. When it comes to family law, you have a lot of things at stake: ownership of your home, custody of your child(ren), how your personal property might be divided, when and how often you can spend time with your child(ren), are only a few issues that a family law judge will decide for you. It's best to have an attorney, who can present the best side of your case to the judge, and help you get the best result possible.
Read this article for more information on issues that will be part of your family law case, or go to my website.
2. Aren't attorneys expensive?
A: It depends on what you think of as "expensive." Again, this is the most important area of your life, where the most intimate personal decisions in your life have been made. It makes sense to protect these interests, and not doing so may cost you more in the long run. Many attorneys will let you arrange a payment plan, as well.
3. How do I decide who to call?
A: There are many ways to go about this. The internet is the most popular search tool currently. But that doesn't mean you should just pick one of the first-listed attorneys when you type in your search terms.
Fact: Advertisers pay to be listed on Google. This is true for all areas that can be searched on Google, including legal services. The higher-cost advertisers will land on the first page, at the more popular times of the day. It's like having a billboard in rush hour traffic on a busy highway. The lower-cost ads show up less often, and at less popular times of the day. This is like having a billboard in a urban neighborhood.
I recommend good old word of mouth advertising over internet advertising. It's better to get a recommendation from someone who's used that service before you, whether it's a mechanic, or an attorney.
4. Ok, I talked to three or four people and got a short list of who to call. What now?
A: Once you've talked to people you know, you've gotten their feedback about what they liked (or didn't) about their attorney. Use the internet (or do a white pages search) to get that attorney's phone number. Then call the office to set up a consultation.
5. I'm too uncomfortable to talk to my friends and family about this now. How can I get a good recommendation?
A: There are other online services that "rank" attorneys. These are sites like Avvo, and Martindale Hubble, Lexis-Nexis, etc.
Fact: These sites are biased in favor of attorneys who play the game. For example, a lawyer who participates on Avvo (claims their profile, advertises, answers questions) will have a higher Avvo ranking than a lawyer who doesn't. For example, look at the ranking of a prominent national attorney (like Eric Holder, the current US Attorney General). Their ranking might be lower than some attorney who participates a lot on that site.
So go ahead and try those sites (Avvo, lawyers.com, etc.) but be warned that the information there isn't always an accurate reflection of what the attorney is actually like, so take it with a grain of salt. (For more information, read this article from About.com).
Or: if you think the sites might mislead you, or you feel you can't talk about this to people you know because it's too personal, use your local bar association for a referral. Lawyers pay to belong to this referral service, and give part of the fee you pay them back to the referral service. I participate in my local bar association's referral service, and think it's a great service to the public. (State Bar of Michigan referral, Grand Rapids Bar Association Referral).
Tuesday, December 3, 2013
How does the law apply to custody of unborn children?
Article here.
The legal question is whether the Uniform Child Custody Jurisdiction and Enforcement Act gives courts authority to determine the custody, or jurisdiction of custody cases, based on the location of the pregnant mother. The tabloid question is who gets to raise baby Samuel Bode Miller-McKenna -- son of Olympic downhill ski legend Bode Miller and a former Marine he met through a "high-end" match-making service -- and where. The New York Times covers the story in "Custody Battle Raises Questions About the Rights of Women."
Tuesday, October 29, 2013
No custody rights, says Michigan Court of Appeals to parent in same-gender couple
article here.
The Michigan Court of Appeals has agreed with a Dickinson County judge who dismissed a lawsuit by Jennifer Stankevich who was seeking custody and other rights from her former partner, Leanne Milliron.
Stankevich and Milliron had entered into a same-sex marriage in Canada in 2007 but separated two years later.
While Stankevich apparently had a role in the child’s early life, the court ruled Milliron is the biological mother, and since Michigan doesn’t recognize same-sex marriage, she thereby has the upper hand in any legal action.
Side Note: I think that this may be an inequitable result, but probably will be upheld if it goes to a higher court. If there's a heterosexual couple, where children are residing with a biological parent, and one person is not the biological parent, and doesn't make an effort to adopt children who he/she is parenting, then they have no standing for custody when the adult relationship ends. This is similar to how the court here viewed the standing of the non-biological mom in this same-gender couple.
Thursday, October 17, 2013
Divorce information in Michigan - a brief overview of family law issues
What follows is a brief overview of issues in Family Law. For more information, contact me, or view my website, nancyballastlaw.com
Divorce - Time Lines
The time you are waiting
for your divorce to be final depends on several things. If you are
married with minor children, the waiting time is at a minimum six
months, as set by the state statute governing divorce. If you are
married without minor children the waiting time can be less. This all
depends on whether, as the deadline approaches, there are still issues
to be settled between the spouses, such as property division, or spousal
support.
Spousal Support
Spousal support (formerly
called alimony) is not an automatic "given" in any marriage. The court
decides whether to award spousal support, and for how long, depending on
several factors. The factors include, but are not limited to: the ages
of the parties, the abilities of the parties to work, the length of the
marriage, and so on. It's also not a "given" that the man would pay
spousal support to the woman, it could be reversed, depending on the
situations of the parties.
Child Custody
It's possible that a
couple can reach an agreement about child custody before they begin the
divorce process. If that's the case, it makes things easier on all
parties, and the children as well. But if the parties can't agree on
custody, it will be decided by the court. The court takes into
consideration the best interests of the child, and may decide that a
joint custody arrangement is preferred to one where one party has "sole
custody."
Child Support
All children have the
right to a parent's financial support until the child is 18 or graduates
high school. The amount of support a parent will pay is based on
applying the Child Support Guidelines, with the amount of parenting time
a parent has as a factor. Joint custody of children will not erase a
parent's support obligation. Many factors go into calculating what child
support obligations are.
Property
Property settlement is the
area of divorce that divides all assets accumulated during or by reason
of a marriage. Even if property is titled in one party's name, it may
be considered as marital property. If a valid prenuptial (or antenuptial
agreement) was entered, that will also be considered by the court.
Visitation
It is presumed that it is
in the best interests of the child to have a relationship with both
parents that continues during and beyond the divorce process. The court
will arrange for visitation that supports a relationship with both
parents - whether custodial or non-custodial. Often, parents can agree
on a schedule for visitation, but if not, the court will arrange one for
the parents. If one party seeks to restrict or limit the other party's
visitation, the court will only order this based on clear and convincing
evidence that visitation would be a danger to the child's physical,
mental, or emotional health. This is because a child has an inherent
right to love and affection from both parents, and neither parent should
attempt to estrange children from the other parent. It's best not to
involve the child in disputes between the parents that often occur
during the divorce process.
Friend of the Court
Friend of the Court may be
involved in your divorce, custody, or child support case. Friend of the
Court is an arm of the court, and it issues recommendations on child
support, custody, and visitation. It is also involved in enforcement of
child support orders.
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