Law Office Of John W. Bissell, P.C.

WHO CHOOSES MY CHILD'S LAST NAME?

2012-02-16T13:55:00.000-08:00

This is an interesting topic that recently came up in our office. Typically, one's gut instinct is Dad's of course. However, that is not the case. According to MCL 333.224, if the parents sign an Acknowledgement of Paternity or are married the surname of a child is designated by a child's parents which can be done unilaterally; the mother designates the surname of thier child if the court determines paternity.

If you are the father and your child does not have your last name you may be wondering if there is anything you can do about it. You can. The party desiring the child's surname changed must show it is in child's best interest under MCL 722.23 (Garling v Spiering, 203 Mich App 1, 512 NW2d 12 (1993).

If you have any legal questions please feel free to email them to eklavenski@jwbissell.com and the next blog may answer your question.

MY LICENSE HAS BEEN REVOKED, NOW WHAT?

2012-01-30T11:26:00.000-08:00

When an individual's license has been revoked for two or more alcohol related convictions, he/she may file with the Secretary of State for an administrative hearing to be held to determine if a reinstated license should be issued.

The hearing officer will not be concerned with hardships; for example, that the petitioner has a family to support, that there is a need to transport aging parents to and from medical care, that a license is necessary to obtain/ maintain employment, etc. Don't "waste" the little time you have at the hearing arguing hardships. Instead at the hearing you should concentrate on the following four factors:

1. Whether any substance abuse/ dependency problems that is now under control and will remain under control.
2. Whether there is a low or minimal risk of repeating prior abusive behavior relative to alcohol and/or controlled substance.
3. Whether there is a low or minimal risk of driving while impaired or intoxicated.
4. Whether the necessary period of abstinence has been maintained.

These factors must be shown by clear and convincing evidence. To optimize the probability of success a strategy should be developed prior to the hearing. Keep in mind, you must preserve the record for a possible appeal to Circuit Court at the administrative hearing so it is important to have representation who is familiar with the process.

For more information please contact us at 517.351.6222 or at info@jwbissell.com.

SHOULD CHILD SUPPORT BE REVIEWED?

2012-01-26T14:27:00.000-08:00

So you have a Child Support Order probably years old and wondering if it should be reviewed? We suggest Child Support is reviewed every few years or when parenting time changes. Most recently our firm was able to lower a client's support obligation by nearly $400 a month; believe me it is worth an inquiry.

Following are a list of factors that indicate it is time to have support reviewed:

-parent has had a change in income or lost their job
-party received recent one time bonus
-change in cost of childcare
-either parent has other children who live in their home or for whom they pay support
-change in amount of spousal support paid or received by a parent
-parent pays/provides health insurance for child
-a parent provides much of the daytime care but does not exercise overnights
-change in number of overnights with a parent

Each situation is unique and requires individual review. Please contact us at info@jwbissell.com or at (517)351-6222 to answer questions regarding child support or to schedule a consultation.

I HAVE BEEN CHARGED WITH DOMESTIC VIOLENCE! NOW WHAT?

2012-01-06T12:54:00.000-08:00

Domestic violence is a charge that you definately don't want on your criminal record for future employers to see as there can be more stigma associated it than with other crimes. If you or a loved one has been charged I'm sure you have questions.

If this is your 1st offense you maybe able to breathe a sigh of relief as MCL 7.694a(1) gives the court the authority to defer proceedings and place the accused on probation. Probation may include participation in drug treatment, counseling, fines and/or imprisionment of less than a year. If the accused successfully completes probation the court shall discharge the accussed from probation and dismiss the proceedings without adjudication of guilt or entering a conviction. IT IS IMPORTANT TO UNDERSTAND THIS CAN ONLY BE USED ONCE. If the accused is not offered the diversion program (as it is offered at the discretion of the prosecutor and court) then a 1st offense is considered a misdemeanor punishable by 93 days in jail and/or a fine of $500 or less.

If this is your 2nd offense a conviction may result in imprisionment of less than a year and/or a fine of $1000 or less. A 3rd offense is a felony punishable by a fine of $2500 or less and/or imprisionment up to 2 years.

If charged with Domestic Violence it is important to hire representation to advocate keeping a possible conviction off your record. Our attorneys have successfully kept this stigmatized conviction off client's records through MCL 7.694a or negotiating plea agreements for Disturbance of the Peace or other less stigmatized misdemeanors. Our attorneys are also experienced, successful trial attorneys who offer aggressive representation to every client. As each case deserves it's own strategy tailoring to the specifics involved contact the attorney's at John W. Bissell, P.C. (517.351.6222) for a free consultation to best advise you on your unique situation.

WILL MODIFICATIONS TO CHILD SUPPORT BE RETROACTIVE?

2011-09-20T09:23:00.000-07:00

The standard answer is NO that child support modifications are only retroactive to the date of filing a Motion To Review Support, Motion To Change Custody, etc. MCL 552.603(2) provides that "[r]etroactive modification of a support payment due under a support order is permissible with respect to a period during which there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support." That is why it is so important for client's to contact us as soon as their pay decreases, lose a job or there is change in parenting time because the longer it takes to file the bigger the financial impact on the client.

However, there is one exception to this rule provided for by MCL 552.603b which permits a court to retroactively correct a child support amount "[i]f an individual who is required by the court to report his or her income to the court or .... [FOC] knowingly or intentionally fails to report, refuses to report, or knowingly misrepresents that income". Our firm used this statute to obtain a nearly $4000 credit to a client's support arrearage because the payee had failed to notify the court that the child was no longer enrolled in a childcare program. It should also be noted that the same retroactive modification issues could be triggered if either party fails to notify the court or FOC of an additional source of income or raise.

Please contact us with further questions on this issue at 517.351.6222 or info@jwbissell.com. Please view our website at jwbissell.com.

DIVORCE - WHY NOT TO WAIT....

2011-09-14T11:15:00.000-07:00

Many times I see clients unsure of whether a divorce is right for them and instead of working through the issue opt to live separate lives from their spouse. In many cases, these separate lives continue for years or decades. Divorce is not an easy decision and it takes an understandable amount of time to get to that point. Once you separate with no intention of getting back together it is important to file for divorce quickly as there can be some pitfalls to prolonging the process.

First, any property, assets or debt accumulated during the time you are legally married can be considered marital. This includes any accumulation of monies in a 401(k), retirement account or pension. Even debt incurred by a spouse for gambling, frivolous items or necessities may be marital. I have even seen a case where one spouse racks up enormous debt and because the parties were legally married (even though living separate lives) those debts were marital and the other spouse was liable. Yes, there are arguments on both sides and ways to lessen the impact or get around those pitfalls. However, it is important to understand the issues waiting can pose which all could be avoided if a divorce is filed quickly.

Secondly, waiting can impact which state has jurisdiction to make an initial child custody determination in a divorce action. If a child moves out of state with a parent after separation for a period of six months this can create problems under the Uniform Child Custody and Jurisdiction Act as the child may have a new "home state" for jurisdictional purposes when it comes to making an initial determination regarding custody and parenting time. It is always best to nip these issues in the bud immediately to ensure a parent does not go months or years without contact with their child and to put an order in place which reflects the best interest of the child.

Thirdly, a divorce can be a means to provide closure and allow parties to move on.

While divorce is not an easy decision waiting can have a significant financial impact, potentially jeopardize a parent's relationship with their child and impact which state is the "home state" which ultimately decides issues of custody. If we can be service to you in handling a criminal, license restoration, owi, divorce, custody, support or family law issue please do not hesitate to contact our office.

Please visit our website jwbissell.com, email me at info@jwbissell.com or contact us by phone at 517.351.6222.

WHERE SHOULD I FILE MY DIVORCE?

2011-08-15T09:01:00.000-07:00

Issues of jurisdiction can be complicated but MCL 552.9(1) gives two requirements that must be met prior to filing a divorce in the State of Michigan. Simply put, one party must resided in Michigan for 180 days and the county of filing for 10 days immediately preceding the filing of the compliant. If the parties live in different counties and have so for 10 days and both parties have been residents of Michigan for 6 months, then essentially the action could be filed in either the county of the wife's residence or the county of the husband's residence. The pros and cons of filing in a certain county should be discussed with your lawyer.

It should be noted due to a recent change in case law that the term resident only requires that the party live in the state/county for the required period; the present intent of a party to remain permanently and indefinitely is no longer required. It is less relevant where the person votes, where their driver's license is issued or where they receive mail; the party is just required to reside in the state/county for the required period.

Also, in military cases (where people are deployed) we are often asked if they can file for divorce while stationed outside of the state. The answer is yes. Military personnel under the Service Members Civil Relief Act and their spouses under the Military Spouses Residency Relief Act (MSRRA) have the ability to claim a home state regardless of where they are stationed and if Michigan is their home state then Michigan will have jurisdiction over any divorce action.

IS JOINT PHYSICAL CUSTODY RIGHT FOR MY CHILD?

2011-08-01T11:40:00.000-07:00

There are two types of joint custody. Joint legal custody allows both parents to participate in important decisions regarding the child (i.e. medical care, education, religion, etc.). Joint physical custody affects the child's living arrangement and the amount of parenting time afforded each parent.

Joint physical custody must be considered by the court if requested by either parent or may be considered on the court's own initiative. MCL 722.26a(1). For joint custody to be successful the parents must have the ability to cooperate and "generally agree" on decisions regarding the child. MCL 722.26a(1)(b).

We have found that for joint custody to work the parties must have the ability to co-parent, live in close proximity to each other and the parents must be willing to foster a healthy relationship with both families as well as have similar expectations for that child. Joint custody is not for every family and is generally unsuccessful in high conflict cases but it does work great for some. Joint custody schedules can vary immensely in each case. Some joint custody schedules provide for one parent to have custody during the school year with the other parent exercising parenting time during alternating holiday breaks and the entire summer vacation. Still other families prefer the traditional week on week off schedule. Other families rotate on a three days on and three days off schedule (or any number of days) and still some alternate every other day.

If you think joint custody is best for your child, contact us so we can help you find a unique schedule that fits the needs of your family.

MICHIGAN CHILD CUSTODY FACTORS

2011-07-19T14:26:00.000-07:00

In a custody dispute the judge, conciliator or referee is tasked with determining what is in the best of interest of the minor child(ren) by considering the following factors as a whole (MCL 722.23):

The love, affection and other emotional ties existing between the parties and the child,
The capacity and disposition of the parties to give the child love, affection and guidance and to continue the education and raising of their child in their religion or creed,
The capacity and disposition of the parties to provide the child with food, clothing and medical care,
The length of time the child has lived in a stable and satisfactory environment with the party and the desire to maintain that,
The permanence of the family unit,
The moral fitness of the parties,
The mental and physical health of the parties,
The willingness and ability of the parties to encourage a close parent child relationship with the other parent,
Any domestic violence that has occurred involving the parties or to which the child was exposed,
Any other relevant factor,
The home, school and community record of the child; and,
The reasonable preference of the child if the child is of a sufficient age to communicate a reasonable preference.

If the case is an initial determination of custody, the required standard of proof is to demonstrate what is in the best interest of the child by a preponderance of the evidence. Once an established custodial environment is established by a child over an appreciable period of time learning to look to the custodian in that environment for guidance, discipline and the necessities of life (MCL 722.27(1)(c)) custody cannot be changed without clear and convincing evidence that changing it is in the child's best interest. However, changing parenting time only requires that it be shown by a preponderance of the evidence that the change in parenting time (which does not amount to a change in custody) is in the child's best interest. It can be difficult to navigate the system; we are available for consultation on these matters.

DOCTRINE OF EQUITABLE PARENT

2011-07-14T09:29:00.000-07:00

According to the Doctrine of Equitable Parent a non-biological father can be considered the natural father of a child where:

(1) The non-biological father and child mutually acknowledge a relationship as father and child or the mother of the child has cooperated in the development of such a relationship over a period of time,

(2) The non-biological father desires to have the rights afforded to a parent; or,

(3) The non-biological father is willing to take on the responsibility of child support. Atkinson v. Atkinson, 160 Mich.App. 601, 608-609; 408 N.W.2d 323 (1986).

The Doctrine of Equitable Parent most often becomes an issue during a pending divorce action after the husband has created a father/child relationship with the child knowing he was not the biological father of the child who was conceived during the father's marriage to the child's biological mother (See July 12, 2011 post regarding the Marital Presumption of Legitimacy); however, the doctrine also becomes an issue when a man holds himself out to be and establishes a relationship as the father of child by signing an Affidavit of Parentage. Guise v. Robinson, 219 Mich.App 139, 146-47; 555 N.W.2d 887 (1996). The emphasis in cases where the parties were never married is on the length of time the non-biological father held himself out as the father. Id at 147.

There are methods for overcoming The Doctrine of Equitable Parent in various circumstances by way of the Michigan Court Rules and The Paternity Act.

MARITAL PRESUMPTION OF LEGITIMACY

2011-07-12T16:51:00.000-07:00

In Michigan, there is a presumption that a child conceived during a marriage is fathered by the mother's husband. Thus the mother's husband becomes known as the legal father of a child conceived during their marriage regardless of whether he is the biological father of that child. The Marital Presumption is derived from Lord Mansfield's Rule and has its roots in English law. The goal of the presumption is to avoid bastardizing a child. "[ T]he current state of the law in Michigan is that a putative [biological] father of a child born in wedlock [conceived while the biological mother was married to another man] has no constitutional liberty interest relative to commencing a paternity action and requesting custody or parenting time regardless of a biological connection to the child and the presence of a parent-child relationship." Sinicropi v Mazurek, 273 Mich.App. 149, 170; 729 N.W.2d 256 (2006).This presumption can only be overcome if both the husband and wife testify that they did not have access to each other at the time the child was conceived and the court finds by clear and convincing evidence that the child is not an issue of the marriage. This hearing is known as a Serafin Hearing. Only after the biological mother or legal father petitions the court to eliminate the husband as legal father and a court determines that the child is not issue of the marriage may the biological father step in and seek parenting rights.

Welcome

2011-07-02T18:47:00.000-07:00

We are a local law firm practicing in the areas of family and criminal law in East Lansing, Michigan. We handle cases throughout the state and have experienced attorneys familiar with the various aspects of family law including divorce, spousal support, custody, child support, parenting time, property division, UCCJEA and relocation. For decades, our firm has provided professional and aggressive representation for clients. Please contact us by telephone at (517) 351-6222 or by emailing info@jwbissell.com. Our experienced staff looks forward to meeting with you for a consultation to determine how we could best be of service to you in your unique circumstances.