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Legal Clinic Advice: Adoption

FAMILY ADOPTIONS

About the Professor: 

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing adoption law in Eaton Rapids. Dr. Baranski is a Certified Adoption Attorney.  Dr. Baranski has been teaching since 1989.  He has taught at Western Michigan University Cooley Law School, where he developed the course, “Adoption Law and Procedure” and wrote the text. He has also taught at Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

Definition of Relative

Relative Adoptions are the most preferred type of adoption, because the child/children get to stay with their biological family. It’s important to keep contact with the bio family – knowing where you come from, your family’s values, morals, and traditions, your medical history – it all shapes who you are as a person.

Relative – A person related to the adoptee within the fifth degree by marriage, blood or adoption. They include:  Parent, step-parent, grandparent, step-grandparent, brother, step-brother, sister, step-sister, uncle, step-uncle, aunt, step-aunt, first cousin, step-first cousin, great-aunt, stepgreat

aunt, great-uncle, step-great uncle, great-grandparent, step-great grandparent, first cousin once removed, step-first cousin once removed, great-great-grandparent, step-great great-grandparent, great-great-uncle, step-great-great-uncle, great-great-aunt, step-great-great-aunt, great-great-great-grandparent, or step-great-great-great-grandparent.

Background Check

The first step for the family adoption is to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind.  The State of Michigan police will do a background check.  Like the stepparent adoption, the probate court will send an employee to the adopters’ home for an investigation.

Guardianship

If the grandparents already have a guardianship in place, and the parent that refused to voluntarily relinquish their parental rights has not visited or supported their child for the last two years before the filing of the petition of the adoption, their parental rights shall be terminated and the child[ren] will be placed with the grandparents for adoption if it is in the child[ren]’s best interest.

Voluntary Termination of Parental Rights

The biological parents are notified and requested to sign off their parental rights. If the biological parents are not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.

Often, the parents have been ordered to pay child support and is behind in payments. IF all the back child support is owed to the a family member with custody, or to a custodial parent, and not to the State, the family member or custodial parent may forgive or waive those amounts, if the biological parents will voluntarily release their parental rights.

Involuntary Termination of Parental Rights

It needs to be determined if the father is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.

Refusal of Non-Custodial Parents to Voluntarily Terminate Parental Rights

If the non-custodial parents objects to the family adoption, a separate lawsuit must be filed with the probate court, alleging, neglect.  The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly.  For example, a petition for adoption is filed on August 15, 2018.  The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 to see what visits and monies were paid during that two year period.  Often, the custodial family member will contact the non –custodial parents BEFORE filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.

Contestation

If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.

Guardian Ad Litem

If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren].  This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL].  Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.

Trial

The family member, non-custodial parents, and the GAL will go before the judge in the probate court for a trial.  The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.

Standard to Terminate Parental Rights

The standard for the Court is clear and convincing evidence.  If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights.  The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.

Appeal

After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals.  Again, the non-custodial parent will have a court appointed attorney to do the appeal.

Formal Placement

The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.

Waiting Period

There is a 6 month to 18 month waiting period for an adoption. Often, the family member has been living with the child[ren] for years so there is no need to see if there will be a  “fit” for a long period of evaluation. Typically, a request for immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued.

 

ADOPTIONS-DIRECT PLACEMENT OF A BABY

DIRECT PLACEMENT ADOPTION

Typically, a direct placement adoption is for a new baby.

Who May Adopt

Any potential adoptive parent may adopt and cannot be discriminated against solely on age, race, religious affiliation or income level.  A single adoptive parent cannot be discriminated against due to marital status alone.  There must be some other factor for an unsatisfactory assessment than marital status.

Who May Place Child for Adoption

Any person who is the legal parent may sign their parental rights away, IF there is someone to take their place. For example, a parent may not want to pay child support any more, and desire to sign off their parental rights. However, only if someone else picks up the tab, so to speak, they cannot sign off their parental rights.

Minor Birthparent

If a birthparent is a minor (under 18 years old at the time of birth), a parent of the birthparent must sign for her and/or him in the adoption proceedings. If there are no parents involved, the probate court will appoint a Guardian Ad Litem to investigate.

Relatives of Birthparents

The relatives of the birthparents have no rights UNLESS they are the parents of an unemancipated minor birthparent.  The baby’s grandmother or grandfather could block the adoption of the minor birthparent.

Background Check

The first step for the adopting person, or couple to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind.  The State of Michigan police will do a background check. The adopters may have as many home study reports done as they desire, so long as the birthparents have the opportunity to review all of them.  The home study is good for one year. If an adoption is not filed within one year, an update must be made.

Finding a Birthparent

Adoptive parents search for leads for birthparents through word of mouth, their religious organizations, by advertising in newspapers, online, and with certified adoptive attorneys.  Often, a certified adoption attorney representing a birthparent, will contact another certified adoption attorney who has adoptive couples he/she is representing.  When a birth parent is looking at a certified adoption attorney’s files, all of the home studies of all the clients must be shown to the birthparent.

The birthparents review the adoptive couple (person) home study or preplacement assessment to see if she is interested in them or has narrowed it down to 3 to 5 couples.  It is common for the birthparent to interview prospective adoptive couples in an open adoption.

Closed Adoption

The closed adoption is the most familiar to people where the identities of all parties is confidential and none of the parties know the other’s names or other identifying information.  All information required by the court is kept confidential in the adoption file. For example, genetic/health history of the birthparents is required for the baby’s health in the future without the names of the birthparents.

Open Adoption

The open adoption is where the adoptive parents and the birthparents know each other’s identity and all the parties meet at the hospital at the time of the birth. The open adoptions can involve the adoptive parent taking the birthmother to her prenatal medical appointments, telephone calls between them, and even having the adoptive mother in the delivery room at the time of the birth.  Additionally, after the birth, letters and photographs of the baby may be exchanged.

Temporary Placement

A temporary placement is done before approval by the court. Placement must be with a Michigan resident.

Requirements:

  1. Prospective Adoptive parents are Michigan residents;
  2. Assisted by a facilitator (adoption agency or certified adoption attorney)
  3. Documents evidencing transfer:
  4. By parent, guardian, certified adoption attorney

AND

  1. Prospective Adoptive Parent

The Temporary Transfer of physical custody means that the birthmother is placing the baby with the adoptive couple (person) on the express condition that if she changes her mind before the court hearing, that the adoptive couple (person) must return the baby within 24 hours of being notified.  Therefore, the adoptive couple must understand and agree, that the temporary transfer is temporary, temporary.

Filing Adoption

The Certified Adoption Attorney for the adoptive couple (person) files a petition for adoption and evidence of the physical transfer with the probate court in the county in which the adoptive couple (person) lives.

Indian Child Welfare Act

In the event the birthparents are members of a Native American tribe or eligible to become members of a tribe, that tribe must be contacted to see if they have any interest in a tribal member adopting the child.

Multiple Representation-Prohibited

Certified adoption attorneys by professional ethics and by State law cannot represent both the birthparents and the adoptive couple.

Regulations

  1. The Michigan Department of Social Services, [DSS] is mandated to prepare a pamphlet on rights and responsibilities for everyone and all parties must have a copy.
  2. All Attorney fees and expenses must be itemized and reported to the court.

What may be paid and What must be paid by Adopting person(s)

Expenses of the Birthmother

  1. Adoptive couple MAY pay the following expenses:
  2. Travel
  3. Rent
  4. Utilities
  5. Medical
  6. Clothing
  7. Food
  8. Adoptive couple SHALL pay the following expenses:
  9. All attorney fees for the adoptive couple AND birthparents
  10. Adoption counseling for the birthparents
  11. All of the expenses may be paid during the pregnancy and up to six weeks after the birth of the child. If all of the expenses are paid and the birthparent(s) change their mind on the adoption there is NO REFUND.  This was expressly discussed and enacted by the Michigan Legislature.  The reason all of the risk is borne by the adoptive couple (person) was the fear that if a birthmother changed her mind and decided to keep the baby, there would be tremendous financial pressure on her to consent to the adoption to avoid having to repay all of the expenses. The only exception would be if the birthmother was attempting a fraud by going to two families for adoption at the same time.

Birthparent Counseling

Birthparents upon request must be provided with counseling.  The counseling that the birthparents receive is NOT confidential.  The information revealed to the psychologist/counselor may be revealed to the adoptive couple.  For example, if the birthparent is having second thought on the adoption may be revealed by the therapist to the adoptive couple or their attorney.

Consent

The birth parents’ Certified Adoption Attorney along with the birthparents go to the Probate Court to sign the legal consent to the termination of their parental rights.

Birthparents’ Parental Rights are Terminated

The birthparents either have to appear personally in court and sign off their parental rights or a petition to involuntarily terminate their parental rights must be filed.  The birthparents have 21 days from the time that they signed off or had their parental rights terminated to file an appeal for cause. It does NOT mean that the birthparent can simply change their mind.  It does mean that if the birthparent was under the influence of drugs, or alcohol, duress, fraud or mistake, etc., that the case could be re-opened.  Once the 21 day period has lapsed the baby is legally placed with the court.  To avoid any problems of the birthparents revoking their consent, a Certified Adoption Attorney is always provided to the birthparents so that they are fully advised by counsel of their actions and that there are no reasons for cause.

Formal Placement

The judge takes the consent of the birthparents and makes an Order of Formal Placement to the adoptive couple (person).

Waiting Period

There is a 6 month to 18 month waiting period for an adoptive couple (person) to be evaluated and then the court hearing with the certified adoption attorney to finalize the adoption by the probate court judge and a new birth certificate is issued.

Every 90 days, there has to be an update on the Home study and submitted to the court.

Adoption is Finalized

Once the birthparents’ rights are terminated, the adoptive couple requests to become the legal parents of the baby.  The probate judge needs an evaluation of this couple ( person) to see if they qualify under the statute to raise the child.  The judge may rely upon the Home study or Preplacement assessment in making this decision so long as the previous report is not more than one (1) year old.

 STEP PARENT ADOPTIONS

 

About the Professor:

 

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing adoption law. Dr. Baranski is a Certified Adoption Attorney.  Dr. Baranski has been teaching since 1989.  He has taught at Western Michigan University Cooley Law School, where he developed the course, “Adoption Law and Procedure” and wrote the text. He has also taught at Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

 

STEP PARENT ADOPTION

A parent has a child or children with someone not their spouse.  The spouse of the parent is not the biological parent of the child or children.  A step parent adoption means that the parties are legally married.  The non- parent spouse wants to adopt their spouse’s child or children.

Unlike the Direct Placement Adoption, in a step parent adoption, one person is already the parent of the child or children.  The biggest issue in a step parent adoption is the termination of the parental rights of the other parent.

Background Check

Unlike in a Direct Placement Adoption, the Probate Court will do the background check in a step parent adoption.  The State of Michigan police will do a background check.  This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind. Typically, a court employee will come to the step parent home for an interview, and to obtain all the necessary paperwork. Every 90 days, there is an update on how things are going with the child[ren] and the stepparent.

Voluntary Termination of Parental Rights

The biological parent is notified and requested to sign off their parental rights. If the biological parent is not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.

Often, the other parent is ordered to pay child support and is behind in payments. IF all the back child support is owed to the custodial payment, and not to the State, the custodial parent may forgive or waive those amounts, if the non-custodial parent will voluntarily release their parental rights.

Involuntary Termination of Parental Rights

It needs to be determined if the other parent is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.

If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.

(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.

It is required to have TWO years of non- support and TWO years of non-contact to be able to terminate the parental rights of the non-custodial parent against their will.

Refusal of Non-Custodial Parent to Voluntary Terminate Parental Rights

If the non-custodial parent objects to the step-parent adoption, a separate lawsuit must be filed with the probate court, alleging, neglect.  The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly.  For example, a petition for adoption is filed on August 15, 2018.  The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 to see what visits and monies were paid during that two year period.  Often, the custodial parent will contact the non –custodial parent BEFORE the filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.

Contestation

If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.

Guardian Ad Litem

If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren].  This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL].  Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.

Trial

The stepparent, custodial parent, non-custodial parent, and the GAL will go before the judge in the probate court for a trial.  The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.

Standard to Terminate Parental Rights

The standard for the Court is clear and convincing evidence.  If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights.  The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.

Appeal

After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals.  Again, the non-custodial parent will have a court appointed attorney to do the appeal.

Formal Placement

The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.

Waiting Period

There is a 6 month to 18 month waiting period for a step parent adoption. Often, the stepparent has been living with the child[ren] for years so there is no need to see if there will be a  “fit” for a long period of evaluation. Typically, a request for an immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued.

 

Grandparenting Time

About the Professor:

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law.

Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing family law including divorce, custody, parenting time, and child support in Michigan.

Dr. Baranski has been teaching since 1989. He has taught at Western Michigan University Cooley Law School, Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

Grandparenting Time:

Michigan grandparents can ask a court to award them grandparenting time if one or more of the following situations apply:

  • the grandchild’s parents have filed for divorce, “separate maintenance” (legal separation), or annulment in a Michigan court
  • the grandchild’s parents are divorced, legally separated under a judgment of separate maintenance (a court has issued an order granting the parents a legal separation), or their marriage has been annulled
  • the grandchild’s parent, who is a child of the grandparents, has died
  • the grandchild’s paternity has been established, and the grandchild’s parents have never married or are not living together in the same household
  • except where Michigan law says otherwise, if someone other than the child’s parent has “legal custody” (the right to make major decisions about things like education, culture, and religion), or if the grandchild has been removed from the parent’s home
  • the grandparent provided an established custodial environment for the child for at least one year before making the request for visitation, regardless of whether the grandparent had court-ordered custody.

There are two possible options.

In the first option, you’ll file a motion with the court asking that a judge grant your request for grandparenting time. It’s very important that you file your motion in the correct place. You must file the motion in circuit court in the county where the court has “continuing jurisdiction” (meaning, the ongoing power to make decisions) over the dispute. The court that has continuing jurisdiction is not necessarily located in the place where your grandchild lives. If you have any questions about where to file, you should contact an experienced family law attorney.

In the second option, you can file either a “complaint” (legal paperwork that starts a lawsuit) or a motion in the circuit court in the county where your grandchild lives. The complaint or motion must include an “affidavit” (written declaration) that sets out all the facts that support your request. You’ll also have to notify everyone who has legal custody or parenting time about your complaint or motion

In either scenario, expect that the other parties will file a counter affidavit with the court, explaining why they won’t agree to your request. Anyone can request a hearing, but if no one does, the judge will likely schedule one anyway. The judge will want to hear everyone out before making a decision.

There are two major hurdles you’ll have to clear before a judge will award you grandparenting time.

In the state of Michigan, there is a presumption (a legal assumption) that a fit parent’s decision to deny grandparenting time doesn’t create a substantial risk of harm to the child’s mental, physical, or emotional health.

You’ll have to overcome the presumption by a “preponderance of the evidence” (proof that it is more likely than not) that your grandchildren will suffer mental, physical, or emotional harm if they don’t spend time with you. The judge will not move on to the second phase unless you can show potential harm to the children.

If the judge finds you’ve overcome the presumption, the question becomes whether it is in your grandchild’s best interests to spend time with you. The court must consider all of the following ten factors:

  • the love, affection, and other emotional ties existing between the grandparent and the child
  • the length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent
  • the grandparent’s moral fitness
  • the grandparent’s mental and physical health
  • the child’s reasonable preference, if the court considers the child to be old enough to express a preference
  • the effect on the child of hostility between the grandparent and the parent of the child
  • 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
  • any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent
  • whether the parent’s decision to deny or decline to offer grandparenting time is related to the child’s well-being or is for some other unrelated reason, and
  • any other factor relevant to the physical and psychological well-being of the child.

 

If the judge decides that it’s in your grandchild’s best interest to spend time with you, then the court will issue an order allowing you to spend a reasonable amount of time with your grandchild. The amount of time and the circumstances of the visits will depend on the particular facts of your case.

 

Child Custody, Parenting Time, And Child Support

About the Professor:

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law.

Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing family law including divorce, custody, parenting time, and child support in Eaton Rapids.

Dr. Baranski has been teaching since 1989. He has taught at Western Michigan University Cooley Law School, Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

 

CHILD CUSTODY:

SOLE CUSTODY: There is no legal definition for sole custody. For the purpose of the Michigan Custody Guideline, sole custody occurs when primary physical custody and legal custody are given to one parent.

Physical custody is when a parent provides most of the day to day care for the child. Legal custody is when a parent has the responsibility of making all major decisions regarding the child’s upbringing (such as medical treatment, school enrollment, religious instruction, and participation in extracurricular activities).

If the judge believes the parents cannot work together for the benefit of their child, sole custody is usually awarded to one parent. The other parent may be given parenting time, as determined by the court. If parenting time is ordered, the non-custodial parent is responsible for making routine and emergency decisions for the child during parenting time.

JOINT CUSTODY: At the request of either parent, the court must consider ordering joint custody. If the parents agree on joint custody, the court must order it unless the court determines that joint custody is not in the best interests of the child. When deciding, judges must state on the record their reasons for granting or denying the request. Judges may consider joint custody without a parent’s request. In addition to the normal factors considered when deciding custody, with joint custody judges must also consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

The statute defines joint custody in a way which provides for joint legal custody, joint physical custody, or a combination of joint legal and joint physical custody.

THE FOLLOWING ARE 2 TYPES OF JOINT CUSTODY:

JOINT LEGAL CUSTODY: Joint legal custody means that the parents share decision-making authority as to the important decisions affecting the welfare of the child. Joint custody does not depend on the amount of time the child is with each parent.

JOINT PHYSICAL CUSTODY: Means that there will be specific times when each parent will have the child with them. However, it does not mean the parents will necessarily share decision-making authority unless the judge also has ordered joint legal custody. As an example of joint physical custody, one parent could have physical custody during the school year, alternate weekends, and alternate holidays, with the other parent having physical custody during the summer months, alternate weekends, and alternate holidays. If the judge awards joint physical custody, the court order will usually include a statement regarding when the child shall reside with each parent. The court order may provide that physical custody be shared by the parents to make sure the child has contact with both parents. During the time a child resides with a parent, that parent decides all routine and emergency matters concerning the child.

CHILD CUSTODY ACT FOR PHYSICAL CUSTODY:

The following are the factors of the Child Custody Act:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and the continuation of the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed at or witnessed by the child.

(l) Any other factor considered by the court to be of relevance to a particular child custody dispute.

PARENTING TIME:

The law establishes a presumption that it is in the best interests of a child(ren) to have strong relationships with both parents. Therefore, parenting time should be of a frequency, duration and type reasonably calculated to promote a strong relationship between the child(ren) and the parent. The child(ren) has a right to parenting time unless the court determines on the record by clear and convincing evidence that parenting time would endanger the child(ren)’s physical, mental or emotional health (MCL 722.27a).

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

ISSUES TO ADDRESS IN PARENTING TIME:

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 (8)). Examples of such terms and conditions include:

  1. Division of the responsibility to transport the child(ren).
  2. Division of the cost of transporting the child(ren).
  3. Restrictions on the presence of third persons during parenting time.
  4. Requirements that the child(ren) be ready for parenting time at a specific time.
  5. Requirements that the parent arrive for parenting time and return the child(ren) 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.

CHILD SUPPORT FORMULA:

The State of Michigan has adopted a formula on how much the non-custodial parent will pay in child support per month to the custodial parent.

Net Income:

The first step in figuring each parent’s support obligation is to determine both parents’ individual incomes. A parent’s “net income” used to calculate support will not be the same as that person’s take home pay, net taxable income, or similar terms that describe income for other purposes. The objective of determining net income is to establish, as accurately as possible, how much money a parent should have available for support. All relevant aspects of a parent’s financial status are open for consideration when determining support, services, or other noncash benefit for which the parent did not pay, if they reduce personal expenses, and have significant value or are received regularly.

Alimony and Spousal Support

(1) Income includes alimony/spousal support paid by someone who is not the other parent in the case under consideration.

(2) Alimony/spousal support paid between the parents in the case under consideration

does not get deducted from its payer’s income.

 

Potential Income

When a parent is voluntarily unemployed or underemployed, or has an unexercised

ability to earn, income includes the potential income that parent could earn, subject to

that parent’s actual ability.

(1) The amount of potential income imputed should be sufficient to bring that parent’s income up to the level it would have been if the parent had not voluntarily reduced or waived income.

(a) The amount of potential income imputed (1) should not exceed the level it would have been if there was no reduction in income, (2) not be based on more than a 40 hour work week, and (3) not include potential overtime or shift premiums.

Taxes and Deductions:

The Federal, State and Local taxes have to be deducted along with any other mandatory deductions, for example, Union Dues.

The number of dependents for each parent, and the parent’s status, [single, married, head of household] is taken into account.

Calculate Overnights:

Once the child custody is determined, the number of overnights at each household must be determined.  Then, based on the net incomes of the mother and father, the child support amount can be determined.

Example: John and Mary have two children, Joe who is 4 years old, and Jane who is 7 years old.

John and Mary have joint legal and joint physical custody. John takes home $20,000 per year. Mary takes home $17,000 per year.  Mary will be the head of household with the two children after the divorce, declaring two dependents on her income tax return. John, will be a single man without any dependents after the divorce. Mary has to pay $400 per month for child care. John has the children every other weekend, one half the holidays, and one half of the summer.  Mary, has the children most of the time for 275 overnights, and John has the children for 90 overnights.

The child support formula based on the income, number of overnights, and amount of child care would have John paying Mary $325.00 per month in child support, and $196.00 in child care for a total of $550.00 per month payable to Mary by John. Any medical expenses not paid by insurance will be paid 51% by Mary and 49% by John.

If we use the same facts, except change the number of overnights, the difference is substantial.

If Mary has 183 overnights, and John has 182 overnights, John pays Mary $13.00 per month in child support and $196 a month in child care for a total of $153.00 per month.

Faye’s Story

Did you know that between 94-99% of domestic violence survivors have also experienced economic abuse? Victims of domestic violence may be unable to leave an abusive partner for economic reasons.

In Faye’s situation, systemic financial abuse led her to being homeless with her abuser after their fourth eviction. The financial abuse started out rather insignificantly; he had moved from out of state and was looking for work in a field where there wasn’t much opportunity. At first, Faye was comfortable leaving small amounts of money in case he needed something during the day while she was at work.

Over time, as did all the forms of abuse she endured, the financial abuse escalated. He started demanding money, questioning her spending, and asking her to pay a bill or two late. When she would refuse, he would force her to submit to his will. Other times, they would end up wrestling over her purse because she was trying to keep him from taking her credit cards from her wallet.

Faye resorted to hiding her bag, but he eventually found it. One night when she was asleep, he took her debit card and left. She was horrified to discover that he withdrew her paycheck and overdrew her account by $1,000. She was forced into a payment plan despite her objections; when it happened a second time, she was unable to pay it off. They closed her accounts and seized what was in her savings and she was unable to have an account.

He began running up Faye’s bills, forbade her to pay others, and started confiscating paychecks. By the middle of the year, her landlord evicted them from their apartment. They were evicted from three other apartments due to this abuse. In between apartments they lived in their car for months on end. During the days when she wasn’t at work, they would go to public parks and spend the entire day there until it was dark. A few of the parks were along a river and sometimes Faye sat there and imagined herself being enveloped by the murky water and escaping the nightmare that had become her life.

At night they would park at a truck stop and sleep. Faye felt liked a caged animal; trapped in steel and glass with her abuser. She never felt safe. Despite being approved for a fifth apartment, it continued to get worse. In total, they had four complete evictions and were on eviction five when she left. She lost everything she owned – all of her memories, clothes, and furniture.

When Faye finally left, she had only the clothes she was wearing and what was in her purse. She managed to sneak her debit card out of his wallet when he was on the phone, but he had already taken the money the night before. The financial damages of that relationship were crushing; he had stolen about $70,000, left massive debts, caused four evictions, defaulted student loans, and tax liens. She lost everything she owned. In total, she was left with about $200,000 in losses.

Despite the oppressive level of financial damage Faye sustained, she had someone who could take her in. This one thing that prevented her from being homeless a second time. This person also encouraged Faye to seek help at the Women’s Center.

Although financial abuse is finally becoming an integral part of the conversation on domestic violence, homelessness is still very much taboo. We need to continue to raise our voices and shed light on experiences that often remain hidden in the darkness. Survivors of domestic violence must continue to break their silence on issues such as homelessness and financial abuse to empower themselves and others to take steps toward independence and freedom.

The Women’s Center of Greater Lansing helps women achieve financial independence, no matter their situations. We provide career counseling, resume and cover letter preparation, financial counseling, a professional clothing closet, and a variety of resources. We are here to help.

If you think your partner is abusing you financially, seek assistance by calling the Women’s Center of Greater Lansing at (517) 372-9163 or the National Domestic Violence Hotline at 1-800-799-SAFE (7233)

Reshaping Our Home When Life Happens

Hi neighbors, it’s a short blog post today. We need your help. 🏡💜 The women’s center provides a safe space for people to come to heal and grow. We would not be who we are today without our home. Unfortunately, life happens, and a pipe broke, flooding the Center’s basement with about $4000 dollars worth of repairs and cleaning. If you are able to, we ask that you please contribute to cleaning the center in whatever way you can, whether that be donating, encouraging others to donate, or hosting a fundraiser. We love our home and want to make it as clean and healthy as possible to be a safe space for you 🏠

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