PROFESSOR HELEN CHANG - Amazon S3s3.amazonaws.com/mythm-vids-prod/MI.Chang.DomesticRelations.pdf · PROFESSOR HELEN CHANG GOLDEN GATE UNIVERSITY SCHOOL OF LAW CHAPTER 1: GETTING MARRIED

MICHIGAN DOMESTIC RELATIONS PROFESSOR HELEN CHANG

GOLDEN GATE UNIVERSITY SCHOOL OF LAW

CHAPTER 1: GETTING MARRIED AND ENDING MARRIAGE

A. Getting Married

• Generally speaking, marriage is a ________________________________ between two people.

o Same-sex couples may now marry in all states, and all states must recognize a same-sex marriage legally entered into in another state.

• Two types of marriages:

o ________________________________ or statutory marriage (in accordance with formalities); and

o ________________________________ marriage (informal marriage by conduct and habit)

MI abolished common law marriage in 1957. MI common law marriages that were valid and preexisting prior to 1957 are valid and

recognized in MI.

1. Ceremonial marriage

o Requirements

________________________________; ________________________________; and ________________________________with formalities (License and Solemnization)

o License and Capacity

If you lack capacity, you will not be issued a marriage license. To obtain a license in Michigan, you must be at least __________ years old

• 16 or 17 years old: May get married with ________________________________ • Cannot get married if under the age of __________

o MI has a __________ waiting period that may be waived upon ______________________.

No required premarital medical testing Michigan does require that upon obtaining a license, the parties receive written

materials regarding venereal diseases and HIV.

o A license will NOT be issued if:

One of the parties is already _____________________________________________;

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The parties are too ________________________________ (consanguinity or affinity); Entering into a sham or fraudulent marriage; Incapable to understand the nature of what it is that they are doing, getting married;

or The parties are under the influence.

o Solemnization - There must be an__________________________________________ to perform the marriage.

2. Common-Law Marriage

o Michigan ________________________________ common-law marriage in 1957; however, for those who established themselves as a valid common-law married couple prior to 1957, they will be considered legally married in Michigan.

o A marriage established by ________________________________ and habit o Three “C” requirements:

C________________________________; C________________________________; and C________________________________- included in this concept is cohabitation as a

married couple.

o Conduct - Cohabitation as a married couple shown by:

Children Tax returns as a married couple Holding self out to public as a married couple Title to assets Joint debt

o Full Faith and Credit - Michigan will recognize common-law marriages legally entered into in other states.

3. Heart Balm actions

o Common-law action for breach of _____________________________________________ o Abolished in Michigan

B. Ending a Marriage

1. Three ways -___________________, ______________________________, and Annulment

2. Annulment

o Applies to _________________ and ________________________________ marriages.

Void: void ab initio – void from the start Voidable: valid until a court order declares the marriage is voided/voidable

o Void marriages

MI Domestic Relations | © 2016 Themis Bar Review, LLC | 3

________________________________ can challenge a void marriage One does not need a court adjudication that the marriage is void ab initio

o Voidable marriages

Voidable marriages can only be challenged by ________________________________ to that marriage.

A party _____________ need a court adjudication declaring the marriage void Voidable marriages are _____________ until there is a court decree declaring the

marriage void.

o Types of void marriages

Subsequent marriages, if one party is already legally married If the marriage is __________________________

Note 1: First cousins cannot get married in Michigan.

If a party lacked the ________________________________ to enter into the marriage

o Types of voidable marriages

Those involving a _____________, under the age of 18 or 16 and 17 without parental consent

• If one of the parties then reaches the age of majority, and the parties continue to reside and cohabit together as a married couple, then the barrier is removed and it is no longer a ground for annulment.

One of the parties is naturally and incurably __________________________, unless the other party knew that before getting married

• _____________ year statute of limitations

_____________________________________ —one of the parties was under the influence of drugs or alcohol at the time of the marriage, and it caused the party not to understand the nature of the transaction

_____________, misrepresentation, __________________________, or undue influence

• The fraud or misrepresentation must go to the __________________ of marriage. • A lie related to pregnancy or religion may be grounds for annulment based on

fraud, depending on the circumstances.

Lack of _____________

• If you entered into the marriage as a joke or for a limited purpose


o Even if a marriage is annulled, it would nevertheless entitle the parties to _____________ ____________________________ of any property acquired during the annulled marriage, and the parties also could seek spousal and child support, attorney’s fees, and custody.

3. Divorce

o Michigan is a “________________________” state; the parties must show the marriage is _______________________________________ and there is no prospect of reconciliation.

Note 2: Fault can still be important issue in terms of ___________________ ___________________, spousal support, and child custody.

o Jurisdiction

In Michigan, one must be a resident in Michigan for ___________ days in the state and a resident of the county for ___________ days before filing for divorce.

The ten-day county requirement can be waived if the defendant is not a _________________________________ and there are minor children who are at risk of being removed from the country.

o Limited Divorce = “Divorce from Bed and Board”

The parties remain legally married, but are permitted to live apart. The court may decide issues of property division, support, and custody.

o Separate Maintenance

Not legally divorced A spouse seeks support for himself or herself and any children. The parties are not entitled to live apart, and cannot marry another person.

o Five Big Issues in a Divorce Proceeding

1) The status of the parties – changing the status from married to divorced;

2) The division of property that has been acquired ___________________ the marriage;

3) Issues of ______________________________________;

4) ______________________________________; and

5) Child support.

Note 3: Also consider attorney’s fees.

CHAPTER 2: DIVORCE - PROPERTY DIVISION AND JURISDICTION

A. Property Division after Divorce

1. Two types of marital property systems

o Common law


o Community property

Michigan is a ______________________________________ property state. Common law follows ___________________ distribution to divide the property fairly. In Michigan, start at a 50/50 split, but may not end up there. Courts in Michigan have jurisdiction over ___________________________________

property if the existing property is insufficient to meet the needs for one of the spouses, or if one spouse has contributed to the ______________________________ or ______________________________ of property.

2. Marital Property

o Property that is acquired ______________________________ the marriage o Exceptions:

1) Property acquired ______________________________ parties are legally married (separate property or non-marital property);

2) Property excluded from the scope of marital property by an ______________________________ between the parties;

3) Property acquired by ___________________ or ______________________________;

4) Property sold, conveyed, transferred, or disposed of in _________________________ prior to the date of final separation;

5) Property ______________________________ or encumbered in good faith before the date of final separation; and

6) Property, award, or monies from a cause of action that accrued __________________ the marriage, even if the payment was received during the marriage.

o Factors in Equitable Distribution

______________________________ of the marriage; Prior marriages of the parties; Age, general health, medical needs; ______________________________ potential and debt owed; Special considerations for contributions toward education; Needs for future acquisitions; Retirement considerations; Value and accessibility of non-marital separate property of each spouse; Actions that resulted in a dissipation of the marital property; ____________________________________________________________ and

economic circumstances at the time of divorce; and ______________________________ of minor children.


3. Fault _________________ a factor in the division of property in Michigan. Grounds include:

o Adultery; o Abandonment; and o Extreme cruelty.

4. Specific Problematic Assets

o Professional licenses/degrees

In the majority of states, the education and degree goes to income earning potential and is not a marital property asset.

In a minority of states, including Michigan, the professional license or degree _______ considered marital property.

o Pension benefits - Vested or not, they are marital property and subject to division by the court.

o Personal injury proceeds

If the cause of action arose ______________________________ marriage, the proceeds are separate property.

In the majority of states, if the cause of action arose ______________________________ marriage, the proceeds are allocated according to a replacement analysis:

• Compensatory damages for pain and suffering are ______________________________ property and will go to the injured party.

• Damages for past lost wages earned during marriage, medical expenses, are ______________________________ property.

o Future interests - too speculative – not included as marital property. o Social security benefits - not marital property o Post-separation property - In Michigan, the separation date falls on the date of the final

divorce decree. o Tax Consequences of Equitable Distribution

Transfers between spouses during a divorce proceeding are _____________ taxable. The transferee’s tax basis is the same as the transferor’s tax basis upon sale of the

asset.

B. Divorce Jurisdiction (See residency requirements from Chapter 1)

1. Divisible Divorce Doctrine (“Ex Parte Divorce”)

o If one party is not a Michigan resident, it may be difficult for the court to have ______________________________ jurisdiction over that party.

o The Michigan courts have subject matter jurisdiction if one of the parties meets the residency requirements in Michigan.


o In this instance, Michigan courts can issue an “ex parte” divorce as to the ______________________________ of the parties only, changing from married to single.

o However, since the court does not have personal jurisdiction over the non-resident spouse, the court ______________________________ determine property division, custody, or support issues.

2. Collateral attack on jurisdiction

o If the plaintiff was not domiciled in Michigan, or left the state immediately after the final divorce judgment, the defendant may challenge the Michigan court’s jurisdiction over the filing party.

3. Indigent parties

o Every person is entitled to access to obtain a divorce; therefore, if one cannot afford the filing fees and service of process fees, the ______________________________ must provide the fees.

CHAPTER 3: MARITAL AGREEMENTS AND SPOUSAL SUPPORT

A. Types of Agreements

1. Pre-Marital (Prenuptial) Agreements

o Agreements made between prospective spouses in contemplation of marriage. o Parties can enter into agreements between themselves and general

______________________________ rules apply.

Note 4: Contracts between prospective spouses do not need to have ______________________________; the marriage itself is sufficient consideration for the parties.

o Michigan does not require the agreement to specifically state its applicability to divorce proceedings.

o The Uniform Pre-Marital Agreement Act has been adopted in Michigan. o Policy in favor of pre-marital agreements so the parties are making the decisions instead

of the courts upon divorce o The party who ______________________________ the agreement has the burden to

show the agreement is not enforceable.

2. Separation Agreements

o Made between spouses who are already married in contemplation of divorce o Often this agreement will be _______________________ into the final divorce judgment.

3. Property Settlement Agreements

o The parties enter into these agreements to decide how to divide the property.


o Custody and support can also be included in the agreement. o These agreements can also be merged into a final divorce judgment.

B. Validity of Marital Agreements

1. Three requirements

o Full ______________________________ of assets and liabilities between the parties; o The terms of the agreement must be fair and ______________________________; and o The parties need to have executed the agreement ______________________________.

2. The burden is on the ______________________________ to establish by clear and convincing evidence that one of these three requirements does not exist.

3. What is considered fair and reasonable can be based on the relative strengths of the parties, including:

o ______________________________ status; o Business sophistication; and o ______________________________level.

4. The court will not re-write a contract for a person, even if it becomes unfair upon divorce.

o Michigan will look at fairness and reasonableness at the time the contract was ______________.

5. Voluntariness means the party entered into the agreement freely, without ______________, ___________________, or coercion. Factors the court will consider include:

o Time pressure; o Prior ______________________________ experience of the parties; and o Whether the other party was advised to seek _____________________________________

6. The court will not enforce an agreement, even if fair and reasonable, if it would cause one the spouses to end up being a _________________________________________________.

C. Modification of Marital Agreements

• The parties cannot enter into any agreement that would release or waive child ____________________________________________________________ issues.

o This is always ______________________________ by the court. o The right to receive child support belongs to the child, not the parent.

D. Choice of Law

In Michigan, the court will apply the state law of the state that has the ____________________________________________________________ to the marital relationship and to the contract in determining the validity and enforcement of the contract.


E. Contracts between Unmarried Cohabitants

• In Michigan, contracts between unmarried cohabitants are recognized so long as they are not supported by consideration based on illicit sexual activity.

• Michigan does not provide for equitable distribution absent an express contract or a contract implied-in-fact.

F. Financial Support for Spouses

• Spousal support or maintenance orders provide financial support for an economically dependent spouse by imposing a financial obligation on the other spouse.

1. Unlike property settlements, spousal support and child support obligations cannot be ____________________________________________________________.

2. Factors the court will consider in awarding spousal support:

o ______________________________ of the marriage; o Contributions of the parties to the marital estate; o __________ of the parties; o Health of the parties and special medical needs; o Source and amount of property awarded to the parties in divorce; o Necessities and circumstances, including ________________________________________

during the time the parties were married; o Ability to pay support; o ______________________________ capacity; o Amount of time it would take for a party to become reintegrated into the work force; and o Past relations and conduct of the parties

Michigan will consider ______________________________ in the determination of spousal support.

3. Types of support

o Lump sum

Fixed amount Non-modifiable Does not automatically terminate upon ______________________________ This amount is chargeable against the estate of the obligor spouse should the obligor

spouse die.

o ______________________________ support - for long-term marriage (usually over __________ years)

o Limited duration support - short-term marriages with a need for some economic support o ______________________________ support

Limited in time


Allows the spouse time to train to enhance and improve his or her earning capacity and re-enter the workforce

o ______________________________ support

Limited to situations when one spouse has contributed to the enhanced earning capacity or education or training of the other spouse

Usually part of the property division settlement

o Palimony: support between unmarried cohabitants - Michigan ______________________ award support between unmarried cohabitants.

4. Tax Implications

o Spousal support is both ______________________________ as income to the receiver, and ______________________________ by the payer, unless the parties and/or court agree otherwise.

o Child support ______________________________ taxable or deductible.

5. Modification of Support

o There must be a ______________________________________________________ in the circumstances of the parties to warrant a downward or upward modification in support.

o ______________________________ under-employment or unemployment is not a significant change in circumstances to warrant a downward modification in a party’s spousal support obligation.

The court will impute to the obligor spouse his or her earning capacity to determine his or her current status, and not what they are actually earning.

o ______________________________ of either spouse will terminate support, except for ______________________________ support.

o In Michigan, re-marriage of the supported spouse will not automatically terminate the obligation of the obligor spouse; decreases in support are determined on a case-by-case basis.

Cohabitation without re-marriage may also be considered.

o Retirement may be considered on a case-by-case basis to determine whether the retirement of the obligor spouse is a significant change in circumstances to warrant a downward modification.

6. Support during Marriage

o Common-law doctrine of “necessaries” – duty that the husband owed to his wife to provide for wife’s basic necessities of life. This doctrine has been ______________________________ in Michigan as a violation of the Equal Protection Clause because it is gender specific.


o A spouse is only responsible for the debts that he or she incurs.

CHAPTER 4: CHILD SUPPORT

Editor's Note 1: The professor misspoke when she said this was Chapter 6.

A. Generally

1. Each parent has a financial obligation to provide support for his or her child.

o Child support obligation continues until child reaches age of majority - 18 years of age. Some states continue the obligation through college.

o Child support can continue indefinitely for a child with special needs due to a disability.

2. In Michigan, duty to support continues until the child reaches the age of __________, or ________________ if the child is a full-time high-school student.

B. Right to Receive Support

1. Parents ______________________________ negotiate away or release the right of a child to receive child support.

2. Parents can make agreements regarding the ______________________________ of the payments but cannot do anything that would negatively affect the child’s welfare and right to receive support.

C. Paternity

1. In Michigan, a paternity test may be brought at any time before the child turns __________.

o In the event that a person cannot afford to pay for a blood test to determine paternity, the courts may order the blood test, and if the defendant is indigent, the blood test must be paid by the ______________________________.

o A time limit on bringing a paternity action is generally invalid. It might result in violation of the Equal Protection Clause, because it might be making a distinction between legitimate and illegitimate children.

2. Marital presumption

o Presumes that a child born to a married woman is the child of that woman and ______________________________

o Applied in most states even when wife is artificially inseminated provided that husband gave ______________________________ and procedure was performed by a ______________________________.

o In some states, wife is estopped from denying the husband's paternity, but half of the states permit ______________________________ of that presumption if the husband was impotent, sterile, or lacked access to the wife during that time.


A court may sometimes exclude evidence rebutting the presumption if rebuttal is contrary to the _________________________________________________________.

o In 2012, Michigan passed the Revocation of Paternity Act which allows the child’s mother, acknowledged father, or potential biological father ______________________________ to the marital presumption.

Challenge must be filed within __________ years of the date of birth or __________ year of an acknowledgement of paternity.

Upon filing, court will order a blood or tissue-typing test or DNA profile to determine paternity.

Along with results of the test, the court will always consider ______________________________ of the child.

3. Personal jurisdiction

If the putative or potential father is out of state, the court will establish jurisdiction under the Uniform Interstate Family Support Act. This was adopted by all states and establishes personal jurisdiction grounds for out-of-state defendants based on:

o Personal service on the defendant; o ______________________________ of the defendant; o Current residency with the child in the state; o ____________________________________________________________ in the state; o Payment of prenatal expenses or ______________________________ for the child; o Residency of the child in the state as a result of the actions of the defendant; o If the parent had intercourse in the state that resulted in the potential conception of the

child in the state; o Parent-defendant _________________________________________________________

in a putative father registry in the state; or o Any other constitutional or statutory basis.

D. Amount of Child Support

1. Michigan has adopted child support guidelines developed by its “Friend of Court Bureau.” There are different formulas being used in the United States to determine child support:

o Michigan uses the _________________________________________________________, based on a percentage of the income of ______________________________;

Elsewhere - "Percentage of income" model - based upon the percentage of the non- custodial parent

Nelson formula


2. In Michigan, the child support formula used is the “income shared model.”

o Takes a percentage of __________ parents' income on the theory that the child should receive the same percentage of income from both parents had the parents remained married.

o The court may deviate from this presumptive amount but must set out specific ____________________________________________________________ explaining why the deviation has taken place and the amount that would have been granted under the guidelines. The court needs to address:

______________________________ of the children; Financial ______________________________ of the parties; and Expenses related to the child, such as childcare, education, and medical expenses and Why the application of the formula amount would be __________ or inappropriate

Exam Tip 1: "Imputation of Income" topic may appear in essay questions. If a parent is voluntarily unemployed or underemployed, the court may "impute" the income that the parent should or would have been earning in calculating the amount of child support to be granted. (If a parent is earning a significant income that exceeds the needs of the child, the court may modify to provide solely for the child's needs ("Two Pony" Rule).

o Medical insurance - usually calculated in the child support award and may be subtracted in calculating the net income of the obligor parent.

E. Modification of Child Support

1. Modification

o Requirement: A ____________________________________________________________ in circumstances is required for a modification.

Some jurisdictions have time limitations on when modification can be sought and caps on the amount that can be sought.

Exam Tip 2: If voluntary unemployment or underemployment arises in a fact pattern, discuss the earning capacity of the party, considering the party's age, age, health, and physical condition in determining whether modification is to be sought.

o Modification, if granted, will not apply retroactively to any past or overdue payments. Over- due payments or past “arrears” are generally not modifiable. Modifications are ______________________________ only.

o The court can modify child support payments even while support order appeal is pending.

2. Termination

o Generally, when the child reaches the _________________________________________, child support is terminated.


In Michigan, parental obligation lasts until child reaches the age of _______________ provided the child is a fulltime high school student.

In some states, the obligation lasts past the age of majority provided the child is in college.

o Marriage of the child o Military enlistment o ______________________________ of the child o Emancipation

Note 5: If the child becomes pregnant and gives birth, that is not, by itself, grounds for emancipation.

o Exception - Indefinite or longer term payment obligation if child has special needs, a mental or physical disability that requires ongoing support

o The support rights of child receiving support past the age of majority are contingent on the compliance by the child with ______________________________ parental demands; child receiving ongoing support who fails to comply risks loss of parental support.

3. Jurisdiction to modify support

o Uniform Child Custody Jurisdiction and Enforcement Act establishes the basis for jurisdiction of a court.

o The home state and court with continuing jurisdiction has the jurisdiction to modify. The court that made the original support order, the home state, has the jurisdiction to modify the orders until no one resides in that state or parties have agreed to a new and different jurisdiction.

o Through the UCCJEA a child support order may be registered in a new court and that court can then exercise jurisdiction to enforce that child support order.

F. Enforcement of Child Support Orders

1. Some remedies available to enforce support orders include:

o Civil contempt; o ______________________________ contempt; o Interception of ______________________________; o Reporting to credit bureaus; o Suspension of professional licenses and driver licenses; o Denial of passport application.

2. Enforcement in other jurisdictions

o Registration in the new state - entitled to _______________________________________ o Two-state procedure if new state has no personal jurisdiction over the obligor: Obtain

enforcement order by filing enforcement petition in initiating state that will be forwarded to the issuing state's court which then sends it back to the initiating state to enforce.


G. Tax Consequences of Support

• Child support is _____________________________ and ______________________________. • Spousal support is ____________________________ to the receiver and deductible by the

payor. • Child dependency exemption is usually granted to primary custodial parent, but negotiable.

CHAPTER 5: CHILD CUSTODY AND VISITATION

A. Definitions

• ______________________________ custody: The authority of the parent to make important legal decisions for the child.

o Examples: Medical decisions, choice of religion, and education

• ______________________________ custody: The right of the parent to have the child physically reside with him or her for all or part of the time.

o Parents have the authority to make decisions on a day to day basis for the routine care of the child (e.g., homework, getting to school, diet).

• ______________________________ custody: Awarded to both parents for ______________________________ custody; a court will decide issues that the parents cannot agree on.

• In Michigan, joint physical custody is treated as a presumption in that it is presumed the child will foster and grow by spending time with both parents.

o Does not mean equal 50/50 time with each parent o One parent is usually a “primary custodial parent” and the other has the right to

reasonable visitation with the child.

B. Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)

1. Four types of jurisdiction:

o ______________________________ jurisdiction: Initial custody determination is made by the home state, which has been the child’s state for at least _______________________, or if the child is less than 6 months old, since the child’s birth, or the state was the child’s home state within the past 6 months and the child is absent from the state, but one of the parties still resides in that state.

The home state retains exclusive and continuing jurisdiction to enter into modification of child custody orders.

o ____________________________________________________________ jurisdiction: A court can order a modification of child support if there is no other state that accepts home state jurisdiction, and the child and at least one parent has a significant connection to the


particular state, and there is __________________________________________________ being in that particular state related to the child’s well-

o ______________________________ jurisdiction: If there is no home state and no significant connection jurisdiction, then a court with appropriate connections to the child can establish jurisdiction by default.

o ____________________________________________________________ jurisdiction: If there is an emergency need where the child is in ______________________________ and requires immediate protection, then a court may step in and temporarily establish jurisdiction.

2. A court no longer has home state jurisdiction if:

o Neither party ______________________________ in the state; or o The child does not have a significant connection with the state and substantial evidence of

the child’s well-being is no longer available in the state.

3. Even if a court has jurisdiction, it can ______________________________ to exercise jurisdiction out of convenience. Factors in making this determination include:

o The existence of __________________________________________________________; o The length of time the child has resided outside the state; o The ______________________________ between the competing jurisdictions; o Existence of an agreement between the parties on which court would have jurisdiction; o Nature and location of evidence relating to the child; o Ability of the court to decide the issues expeditiously and __________________________; o ____________________________ of that court with the facts and issues involved in the

matter; and o If a party has engaged in unjustifiable conduct, such as wrongfully removing a child from

the state.

4. Enforcement

o A custody order from one state can be ______________________________ in another state and treated under the Act and the Full Faith and Credit Clause as if it originated in that particular state.

o The determination of child custody can be expedited. After a petition is filed, the respondent must appear at the hearing held on the first judicial day after service of the order. The petitioner will be awarded immediate physical possession of the child unless:

The custody or visitation order was not properly registered, and either:

• The issuing court did not have ______________________________; • The order had been stayed or vacated; or • The respondent was entitled to ______________________________, but it was

not given before the court issued the order; OR


The order was registered and confirmed, but the order was stayed, vacated, or modified.

C. Uniform Child Custody Jurisdiction Act (“UCCJA”- essentially replaced by the UCCJEA)

D. Parental Kidnapping Prevention Act (“PKPA”)

• Does not only apply to kidnapping • Also applies to ______________________________ custody and visitation orders.

E. Interests and Welfare of the Child Standard

1. This is the overriding standard all courts use to make child custody determinations.

o There is no longer a paternal presumption that was used at common law, nor a maternal presumption if the child is under the age of 7.

These laws would violate the _____________________________________________ Clause of the U.S. Constitution.

2. Michigan courts are required to consider the following factors in determining custody, even if the parents have a custody agreement:

o ______________________________ ties between the parties and the child; o Ability of the parties to provide love and affection, and raise the child within his or her

religion; o Ability of the parties to meet ______________________________ requirements, such as

food, clothing, and medical needs of the child; o Ability of the parties to provide a stable home and living environment for the child; o Permanency of the home; o Health and ______________________________ of the parties; o The child’s school and community record; o The child’s ______________________________, if mature enough; o The ability and willingness of the parties to continue a relationship with each other; and o Any history of ____________________________________________________________.

F. Visitation and Parenting Time

1. The court has broad authority in determining reasonable visitation.

2. Third Parties

o The court will consider whether the third party has acted as a ______________________________ for the child.

If not, there is no constitutionally protected right of a third party to have continuing contact with a child after the divorce or death of a natural parent.

o A fit parent has a fundamental right to the care, custody, and control over his children, and this includes the right to deny non-parent visitation.


o In Michigan, courts can allow for and grant ______________________________ visitation time in the following situations:

The child’s parents are separated, divorced, or the marriage was annulled; One of the parents is ______________________________; The child’s parents were never married and do not reside in the same household, and

paternity was established and the father shares in the responsibilities; ____________________________________________________________ has been

granted to a person other than one of the parents; or In the year preceding the petition, the grandparent provided a stable

______________________________ environment.

o Unwed biological fathers (putative fathers)

The father must demonstrate by __________________________________________ that he has made a commitment to the responsibilities of parenthood:

• Participated in prenatal care, contributed financially to the child before and after birth; or

• Father has signed an acknowledgment of paternity, or filed an intent to claim paternity in Michigan before birth.

o Equitable Parent Doctrine

The husband has desired the rights of paternity, even if he is the non-biological father of the child, and is willing to follow the obligations and responsibilities of a parent, including child support payments for the particular child.

o Factors the court should not take into consideration:

Unless there is a ______________________________ between the parent’s conduct and the child, the sexual orientation, conduct, or cohabitation of one of the parents will not be taken into consideration in determining child custody or visitation.

A court cannot deny visitation to a parent because the parent is HIV positive or has ______________________________.

o Interference or refusal to comply with a visitation order can be remedied by a change in custody, contempt proceedings, allowing make-up time, or in some states, tortious interference claims.

CHAPTER 6: CHILD CUSTODY (CONT’D) AND RELATIONSHIP BETWEEN FAMILY AND STATE

A. Enforcement, Modification, and Termination of Custody Orders

1. Enforcement

o Courts can enforce custody orders and issue sanctions as appropriate.


o Sanctions include:

Compensatory visitation time; Attorney's fees; Court costs; Fines; and ______________________________.

o Custody and visitation orders between states can be enforced by a MI court under the ____________________________________________________________, so long as the order has been ______________________________ with the court.

2. Modification

a. General Rules

Jurisdiction for modification - once custody order has been issued, absent relocation, the state that entered the original order retains _______________________________ jurisdiction.

Standard: There must be a _______________________________________________ to warrant a modification of the custody order.

• Establishing change in circumstances: moving party must establish, by a ____________________________________________________________, that there has been a substantial and ______________________________ change in circumstances.

Modification must be in the best interests of the child. Evidentiary hearing is required.

b. Established Custodial Environment

Michigan has two standards to change the order:

• If there is an established custodial environment for the child, then a change in custody can only happen upon a showing of ____________________________________________________________ evidence that the change is warranted.

• If there is NOT an established custodial environment, then the standard of proof is merely a __________________________________________________________.

Established custodial environment: A physical and psychological environment of ____________________________________________________________ that fosters a stable relationship between the custodial parent and the child.

c. Time Barriers

NOT in Michigan


In some jurisdictions, there are limits on how frequently a change in custody can be sought.

Purpose is to ensure a stable environment for the child A violation of a child visitation order does not automatically warrant a change in

custody but it is a factor to be considered. Failure to pay child support does not automatically mean that the parent is not

entitled to visitation.

d. Relocation

Court approval is required if the relocation is:

• ______________________________; or • More than ______________________________ from the child's residence.

Two exceptions:

• Parents all consent to the relocation; or • The child's two residences are already 100 miles apart.

Factors considered by the court:

• Improvement in the quality of life for the custodial parent and child; • Whether the relocation is intended to frustrate the visitation rights of the non-

custodial parent; • Whether the move is motivated by financial advantage, e.g., for a better job; • Realistic opportunity for ______________________________ for the non-

custodial parent; and • Whether there has been _____________________________________________.

Exam Tip 3: If the relocation will significantly impair the non-custodial parent's right to visitation with the child, it will almost always constitute a substantial change in circumstances warranting a modification.

3. Termination

o Order terminates upon custodial parent's ______________________________; or o Upon the child reaching the age of ______________________________.

B. Parental Autonomy

1. In General

o Constitutional right recognized by the Supreme Court o Parents have constitutional rights to parent their child. o Can make decisions without interference by the state

2. Consent

o Parental consent is required to perform medical procedures on a minor child.


o Exceptions include:

An ______________________________situation The state can intervene on behalf of the child because doing so is in the best interests

of the child. "Medically mature child" - court deems the child is mature enough to make medical

decisions for himself or herself. Concern regarding ______________________________, e.g., STD

3. Religious Beliefs

o Court can intervene, under the theory of parens patriae, to protect a child if the parents refuse medical procedures based on their religious beliefs.

o Parents have a constitutional right to choose a religious faith for their child.

C. Involuntary Termination of Parental Rights

1. In General

o Only a court can involuntarily terminate a person's constitutional right to parent a child. o Usually occurs as a result of ______________________________,

______________________________, or in a dependency case, after the state has intervened and made attempts to reconcile the parent-child relationship.

2. Statutory Grounds in Michigan

o ______________________________; o Incapacity; o ______________________________ of a sibling; o Termination of parental rights over a sibling; o Abuse and neglect of the child over a period of time; and o Failure to comply with a court-structured plan if the child has been assigned a legal

guardian.

3. Adoption and Safe Families Act (Federal Act)

Under the Adoption and Safe Families Act, a state can move for termination of parental rights when:

o The child has been placed outside the home, not with a relative, for __________ of the past __________ months; and

o State has provided reunification attempts.

4. Constitutional Requirements

Termination requires a showing of ___________________________________________________ evidence.


D. Relationship between Family and State

1. Adoption

o A statutory legal action where one parent-child relationship is terminated and a new one is created.

Once the adoption has been completed, a new birth certificate with the adoptive parents’ names is issued for the child.

The records for most adoptions are sealed and kept confidential.

o Most states prohibit any ___________________________________________________ for the adoption of a child, other than costs for medical care.

o In Michigan, the following persons may adopt:

**Recent change in the law** - married individuals can adopt WITHOUT ______________________________ of their spouse, provided that the court says there is a good reason for doing so and it is in the best interests of the child.

Single adults Married couples

2. Termination of Natural Parent's Rights

o For adoption to be valid, biological parents' rights must be terminated. o Biological parents can voluntarily relinquish parental rights.

The biological parent’s consent must be ______________________________ and must be_______________________________.

o Consent of unwed fathers:

Unwed father may not have the right to object to the adoption if he has not demonstrated a commitment to the responsibilities of parenthood.

However, if unwed father has made a commitment to the responsibilities of parenthood, his ______________________________ will be required.

o The common-law doctrine of abandonment: The consent of the biological parents to the adoption is ______________________________ if the parents cannot be located OR the child has been abandoned.

Michigan applies the traditional law of adoption - permits adoption provided there has been a finding of abandonment.

Two ways to look at abandonment - objective and subjective tests

• Objective test - the key is whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship.

• Subjective test - Did the parents intend to abandon the parent/child relationship?


o Consent of adoptee - Children over the age of __________ must also consent for the adoption to proceed.

3. Legal Effects of Adoption

o Adoptive parents have legal rights and responsibilities of biological parents

______________________________ Custody Visitation ______________________________

o Adopted child has legal rights of a biological child

Intestate rights in the adoptive parents' estate

o Majority of jurisdictions will NOT permit visitation between the adoptee and the biological parents.

A few states do authorize visitation between an adoptee and a non-parent, typically a step-parent or grandparent, but only when there is a substantial relationship between the child and non-parent and the visitation is in the child’s best interests.

4. Surrogacy

o Surrogate - woman who enters into an agreement to bear a child for intended parents through assisted conception.

o In Michigan, the Surrogate Parenting Act declares surrogate parenting contracts ______________________________ and ______________________________ as contrary pto public policy.

o Parties to a surrogacy agreement are subject to criminal penalties if the agreement provides the surrogate with compensation.

E. Children in Need of Supervision

• Children in need of supervision are those whose behavior does not meet certain standards of behavior but falls short of being ______________________________.

• The behavior includes:

o Habitual ______________________________ o Running away from home o Habitual disobedience of parents

• Remedies available to the court include:

o Placing the child on ______________________________; o Placing the child under the supervision of a social worker; o Leaving the child with his parents; o Placing the child with a relative;


o Requiring the child to engage in community service; or o Placing the child with a ______________________________.

• The court may also order the parents to refrain from any conduct that the court determines has caused the child to come to the attention of the court.

F. Domestic Violence

1. In General

o Every jurisdiction has statutes dealing with domestic violence. o Typically protect against physical abuse

2. Scope of the Statute

o Most states include spouses, ______________________________, children, unmarried parents of a common child, and household or family members.

o Some jurisdictions cover same-sex relationships and dating relationships. o Focus on continuing behavior - single episode, however, can qualify.

3. Relief Granted

o Most common - injunctive order, called "stay away" order o It can order exclusive possession of a residence for the victim, child custody, parenting

time, and support.

4. Violation of Protective Order

o ______________________________ penalties o Fines and imprisonment

[END OF HANDOUT]

Documents

PROFESSOR HELEN CHANG - Amazon S3s3.amazonaws.com/mythm-vids-prod/MI.Chang.DomesticRelations.pdf · PROFESSOR HELEN CHANG GOLDEN GATE UNIVERSITY SCHOOL OF LAW CHAPTER 1: GETTING MARRIED