Michigan Abolishes Dower

As of April 7, 2017, wives in Michigan will no longer have dower rights. If you want to know all about dower rights, read my previous post about dower. Briefly, dower gives wives some rights to any real estate owned by her husband during the marriage.

What this new change means is that wives may no longer need to sign deeds when their husband sells property that is only in his name. This also removes dower as one option for wives during a divorce property settlement, or for widows when dealing with the estates of deceased husbands. Dower will still exist in cases where a husband passes before April 7, or where the ex-wife/widow has already taken advantage of her dower rights.

Most states abolished dower long ago. Michigan is doing it now as part of a set of new laws to deal with the legalization of same-sex marriage. Dower was only available to a wife in a marriage.

There will be other changes in family law because of same-sex marriage which I will be covering in future posts.

Paternity: The many ways to legal fatherhood.

Fatherhood has always been more complicated than the way it is shown in 1950's sitcoms. To understand the laws of paternity in Michigan, you first have to understand the many different types of fathers, from the viewpoint of the state.

Presumed Father – A man married to the child's mother at conception or birth is automatically the child’s legal father.

Acknowledged Father - Someone who has signed an Affidavit of Parentage form and is considered the legal father.

Affiliated Father - Someone who is the child's legal father by court order.

Genetic Father – The actual biological, but not necessarily legal, father.

Alleged Father - Someone who could be the father.

Legal Father - The person who is considered to be the father by the state. This is either the presumed, acknowledged, or affiliated father.

How to Become the Legal Father

Be Married

The simplest way to be the legal father is to be married to the mother.

Sign an Affidavit

If the mother is not married, then the mother and father can together sign an Affidavit of Parentage and the father will become the acknowledged, legal father. Any man can sign the affidavit along with the mother; He does not have to be the genetic father. Most parents sign this form at the hospital when the child is born, even in cases where the parents are married. This process is called an Acknowledgment of Parentage.

DNA Testing

If either the mother or father is receiving state support, they can ask to have a DNA test done through the Michigan Department of Health and Human Services (DHS) to find out if he is the genetic father.

Adoption

If a child is being placed for adoption, even if the child isn't born yet, a genetic father can claim paternity of the child. If the court finds that he is the child's father the court may terminate his rights to the child and proceed with the adoption, or dismiss the adoption and return the child to the mother, or dismiss the adoption and grant custody of the child to the father.

Revoking Existing Paternity

If someone has already been declared the legal father, replacing that person as the legal father can be a serious challenge. If the mother was not married during the pregnancy, and the child is under three, the father can file a case to be declared the real father. These cases are usually decided by genetic tests. If the mother is married, the father has to prove that he didn't know or have any reason to have known that the mother was married, or that she was not married at the time of conception. During a divorce, the husband can ask for declaration that the child is not his, even if the child is older than three.

Time Matters

In most cases, once the child is 3 years old, it is difficult or impossible to change the legal father for the child. For the genetic father of a child who wants to have some legal rights to see that child, acting quickly matters.

When a child needs a grandparent: 6 Paths to a Grandparenting Time Order.

In many families a grandparent can become an essential caregiver to a child. This can often happen temporarily when one parent is unavailable because of work, illness, or incarceration. Or it can be permanent because of the death of one parent. In some cases children are raised by their grandparents for years, creating a natural bond between the child and grandparents that would be harmful to both if broken.

Image courtesy of Donnie Ray Jones.

But life is a constant change. The remaining parent may have been happy to have grandparents help out with the kids for years, but a remarriage, new partner, or falling out with the ex's grandparents might cause that parent to break the children's relationship with their grandparents.

In a situation like this, being cut off from their grandparents is likely to be emotional, and probably harmful to the children who have seen the grandparents as virtual parents. Fortunately there is a law for cases like this when the loss of time with grandparents is likely to harm the child physically, mentally, or emotionally. 

Six Paths to a Grand Parenting Time Order

There are six possible ways for a grandparent to be able to go to court and get a parenting time order. These paths are spelled out in MCL 722.27b(1)(a-f).

1. There is a pending court case for divorce, annulment, or separate maintenance. If one of the parents has filed for divorce or separation, a grandparent has the right to file a motion and having a hearing in that case for parenting time.
2. The parents are already divorced or legally separated. If the parents already finalized a divorce, grandparents can also go to court for a parenting time order. In most cases they should just be able to file a motion in court under the case number for that divorce.
3. The grandparent's child who was the parent of the grandchild has passed away. Along with divorce, death is the most likely reason a grandparent may need a court order to see the grandchild. The grandparent may have been extremely close to the children, but if the remaining parent didn't get along with them for some reason, they can easily deny the grandparents any time with their grandchildren.
4. The parents have never been married, are currently not living together, and there is legal proof of paternity. In some cases, especially with young parents, the parents both relied on a grandparent to help raise the children. Over time, the parents may separate, and the parent who has custody of the children might feel they have the right to deny their ex's parents time with the children.
5. Someone other than a parent has custody of the child, or the child is not living with a parent. This can be the case where the parents are in prison, in a hospital, mentally unwell, dealing with addiction, been judged unfit, or just missing. Child Protective Services, or a court, may decide to place the children with someone other than the grandparents, but the grandparents still have the right to seek time with their grandchildren. This can often be the easiest case for a grandparent to win. If there is no parent opposing the grandparenting time, the grandparent does not need to prove harm to the child, just that it would be in the child's interests to spend time with their grandparent.
6. In the last year, the child lived with the grandparents. Even if the grandparents didn't have legal custody of the child, if they "provided an established custodial environment for the child" then the grandparent can seek grandparenting time.

The rights of the parents

The purpose of this law is to protect children from the harm they might suffer if they weren't allowed to spend time with their grandparents. Proving that is the hard part.

Your grandchildren may love you, and they may be sad if you weren't allowed to see them, but the law gives preference to the parents. Unless a grandparent can prove a "substantial risk of harm" to a child, they will not be able to get a grandparenting time order if a parent opposes it. 

You have to get it right the first time

Getting a grandparenting time order is a complex process. The law only lets grandparents try for this once every 2 years. You don't want to try this yourself and have to wait two years to try again. This is a case where a skilled lawyer is vital, because you need to make your best case the very first time.

Secret Marriages, and Weddings for Children

You can keep your wedding date secret, and you can marry your 13 year old sweetheart, if you can convince a Probate Court Judge. Obviously this seems kind of odd, and you probably never heard of this law, but it is right there in Michigan's Issuance of Marriage License Without Publicity Act 180 of of 1897. 

Image courtesy of Anthony Newman. 

That date helps explain the reasoning behind this law. Doing some research on this, I found that the purpose behind this law was to "protect the reputation of females" and for the "benefit of public morals." Another title for this law might have been "The Shotgun Wedding Act". 

This law is still in place, and you could still request a secret marriage to a teenager. But these days, I'm not sure that a pregnant bride would be considered a great harm to her reputation. And I would hope that most judges would consider marrying 13 year olds as more harmful to public morals than allowing them to give birth unwed. But, there are still many Probate Court websites listing instructions for applying for secret marriages. So, maybe this is still a popular option? I've had no clients request a secret marriage, and haven't come across a secretly married client yet.

This law also, for some reason, explicitly refers to "couples of the opposite sex."I don't know if the original 1897 law said that, or if it was added in 1983 when the law was amended. The text of the amendment and original law aren't available online. But, this means there is yet another law for the State to amend now that same-sex marriage is legal.

Apparently, at one time when Michigan had no waiting period for wedding licenses, this law made St.Joseph, Michigan, a popular destination for weddings from Chicago. California is the only other state in the country with a secret marriage law, and they don't allow minors to marry in secret. So, Michigan is still unique with this law. This law also causes challenges for people researching family histories. MCL 333.2885 allows the state to transfer copies of 75 year old marriage licenses to libraries for genealogical research, but it excludes secret marriages, no matter how old. 

So, if you're having trouble finding your great-grandparent's marriage license on Ancestry.com, maybe it's because they had a secret shotgun wedding?

"Temporary" custody is not temporary: Why you need a lawyer.

A recent Michigan Court of Appeals case, Bolz v. Bolz, shows why it is so important that you have the help of an attorney when it comes to life-affecting legal matters. In this case, a mother was given "sole legal and physical custody" of the couple's children in the divorce, "until the [father] has completed his substance abuse program and has been sober for one year."

To the father, and even to the trial court judge, this apparently meant that once the father was sober for a year, and through the program, that he would have joint custody of the children, or at least be able to get joint custody just by showing that he had completed the requirements. But, in Michigan, there is no such thing as "temporary" custody. Custody is either sole, or joint. 

A parent can always go to court and try to convince a judge that there is some good reason for changing custody, but custody doesn't automatically change, despite what you may think the order says. The father probably thought he had won some benefit, where he would get joint custody when he completed the substance abuse program. But what he really got was worse than the default of "sole custody" to the mother. What the divorce judgment really meant was that until he was sober for a year, the court wouldn't even consider changing custody.

Having your insobriety clearly written out in a divorce judgment is probably not going to help you in the future with getting custody back, and divorce judgments are public records. Anyone in the future will be able to look this up and see that this father had some serious problems. (And now that it's gone to the Court of Appeals, that fact has been even more publicized.)

So, please remember, just because something looks like it means one thing, the legal meaning can be quite different. In this case, having sole legal custody also means that the mother will probably be able to move the children out of the state, and the father will probably have very few chances to see his children. I am guessing that this is not the outcome he expected when they first signed the divorce papers.

Guardians, Conservators, and Trusts for Your Children

Guardian = ‘legal parent’

If you and your spouse passed away, or are mentally, physically, or legally unable to act as parents, a court will appoint someone to act as the child’s legal guardian, to make decisions regarding the child’s welfare, health, education, and basic finances.

Why should you choose a guardian?

The guardian will act as the parent for your children. Any child without parents must have a guardian. If you do not choose a guardian, the court may choose a guardian unrelated to your children, who will be paid out of your children’s assets. Or worse, your relatives may end up fighting over the right to raise your children.

The guardian you choose will have the responsibility to raise your children according to your desires. By making a choice, you can ensure that your children are raised with the standards and teachings that matter to you.

How can you choose a guardian?

The simplest way is with a will naming the person you want as guardian. For married couples, each spouse should have their own will naming the guardian. The will for the last living parent will decide who becomes guardian.

Conservator = ‘financial manager’

If the children will be left significant property or finances, the court may appoint a conservator to handle those assets. The conservator can be the same person as the guardian, but does not have to be.

Why should you choose a conservator?

If you have significant savings or property that would pass to your children, a conservator would likely be needed. You may not think your children will need a conservator, but your retirement savings, life insurance, or home can add up quickly. A conservator will definitely be needed if any real estate will be left to your child.

The person you trust as a guardian may not be the best at handling money, or you may have a sibling who understands finances, but is unable to act as a parent. Appointing a separate conservator can also reduce the burden on the guardian.

How can you choose a conservator?

Just as with the guardian, you can name a conservator in the same will for each parent.

Trusts = ‘rules for protecting your children’

Trusts have many uses; distributing assets, protecting property, preserving wealth, avoiding taxes. But when it comes to your children, a trust can be vital to preserving your estate until your children are old enough to manage their own finances. A conservator has the responsibility to manage your children’s assets. A trust sets the guidelines for how those assets should be used for your children’s benefit.

You can’t predict the future, but with the right planning, you can preserve it for your loved ones.

Vaccines are in a child's best interests, according to Michigan Court of Appeals

Divorced or separated parents often disagree about how to raise their children. In most cases it is just about preferences, for food, clothing, discipline, schooling. But when it comes to medical decisions, those disagreements can have serious consequences. After a recent decision by the Michigan Court of Appeals in Kagen v. Kagen, it seems likely that Michigan courts will usually consider vaccinations to be in a child's best interests.

In that case, the court decided that the evidence presented by the father, who was in favor of vaccinating the couple's child, was admissible and outweighed the evidence provided by the mother, who opposed vaccination. I think this best sums up the court's decision: "A review of the parties’ evidence clearly supports that vaccination of children is in their best interests, unless the child’s medical condition contraindicates vaccination. The reports generated after public-agency research and investigation, including those presented by Mrs. Kagen, establish that the benefits associated with vaccination far outweigh any dangers."

In Michigan family law, what the court sees as a child's best interest can have serious consequences. In divorces, custody disputes, parenting time arrangements, change of residence, adoptions, and paternity determinations, a child's best interests, according to the court, will often decide the outcome of the case. And for each type of case mentioned, the way courts decide on the best interest vary.

In situations where a parent does not trust in alternative forms of medicine used by the other parent, they should be able to use this case to try to get the court to order the use of mainstream medicine. Divorced or separated parents who want to use homeopathy, naturopathy, chiropractic, or anthroposiphic medicine for their child should be aware that this could possibly be used against them in a future custody dispute.

Whichever side you're on when it comes to these forms of medicine, it is important that you understand your rights and how they could apply to the best interests of your child. Even if you don't foresee a court case soon, talking with an attorney now can ease your mind, and help smooth out any future disputes.