Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616-608-4634

Issues Concerning Children

The Difference between Legal and Physical Custody in Michigan

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The Difference between Legal and Physical Custody in Michigan

If you’re going through a divorce, or in the midst of a custody battle, it’s important to understand what the custody terms means in Michigan. In Michigan, the courts recognize two types of custody: physical and legal.

PHYSICAL CUSTODY:
Physical custody determines where the children will live and their living arrangements. Custody can be sole or joint. Sole physical custody means physical custody is given to only one parent. The child will primarily reside with that parent, and that parent provides most of the day to day care for the child. Joint physical custody means the parents share custody.

LEGAL CUSTODY:
Legal custody determines who will make important decisions for the children. If sole legal custody is awarded, only one parent has the authority to make these decisions. However, if joint legal custody is awarded, both parties will be involved in making important legal decisions for the child such as where they go to school, what religion they are, if and what extra-curricular activities the child will participate in, and major medical decisions. Joint legal does not depend on the amount of time that the child spends with each parent. No matter what the physical custody is, parents can share joint legal custody of the child.

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Examples of what joint legal custody is as follows:

  1. Each party will foster, encourage and support the relationship between the minor child and the other parent.
  2. The parties will consult together concerning major decisions involving the health, education, religion and welfare of the minor child. Neither party shall enroll the child in a school without agreement of the other or an order of the court.
  3. The parties will both use their best efforts to ensure consistency in matters affecting the upbringing of the minor child and to work together to promote the best interests of the minor child.
  4. Each parent will promptly advise the other of any illness, emergency, or other significant events concerning the minor child (including school or health problems) of which the parent becomes aware.
  5. Each parent will be entitled to complete access to the minor child’s school, medical, psychological, religious and other records.
  6. The parties shall each be entitled to be informed of all parent/teacher conferences and all other activities (including sports) and/or school programs in which the child are involved and parents are invited to attend.
  7. The parties shall each be entitled to copies of the minor child’s report cards, medical records and current school photographs.
  8. Each party shall keep the other party generally informed of his or her whereabouts in the event of an emergency, including their present address, personal telephone number, and any other emergency contact number.
  9. Each party shall decide all routine matters concerning the minor child during such time that he or she has physical custody of or parenting time with the minor child. The parties will each use their best efforts to provide consistency for the child in connection with such routine matters.
  10. Each party shall have the right to make routine emergency decisions regarding the minor child when the child are with him or her.
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DETERMINING THE CHILD’S BEST INTEREST: It’s always best when parents can agree on custody. However, when parents are unable to agree on custody, then the court must decide on custody and parenting time by reviewing the “best interest factors of the child”.

This legal test requires the court to consider these 12 factors:

  1. The love, affection and other emotional ties existing between the parties involved and the child.
  2. The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
  3. 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.
  4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
  6. The moral fitness of the parties involved.
  7. The mental and physical health of the parties involved.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
  10. 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.
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  12. Any other factor considered by the court to be relevant to a particular child. Schmitt Law, PLLC knows that your first priority is your children, and will find creative solutions that fits your specific situation.

Schmitt Law, PLLC can advise and represent parents throughout the entire custody process, offering skilled advocacy for parents, while being empathetic to the challenges involved in determining child custody. Laurie Schmitt of Schmitt Law, PLLC is a West Michigan family law attorney specializing in collaborative divorce as well as separation, divorce, child custody and support, paternity, and other family law litigation. She is licensed by Michigan State Bar and the U.S. District Court for the Western District of Michigan, and has extensive advanced training in divorce mediation and collaborative divorce. Contact Laurie at (616) 608-4634 for a confidential consultation.

Ten Things “Not to Do Next” in Your Divorce

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Ten Things “Not to Do Next” in Your Divorce

You’ve heard it a million times that going through a divorce is difficult. As a West Michigan Divorce Attorney, I can state that divorce is full of challenging moments. However, with some common sense, you can avoid some common divorce pitfalls by following a few basic rules:

  1. Don’t start a new relationship. Well, Duh! Need I say more. Respect the current relationship and see it to the end. Don’t confuse your children with introductions to new “friends” while in the midst of the divorce. Judges don’t appreciate it, as it shows a lack of good judgment. And it will only fuel the fire in the divorce proceeding. If this is a person you intend to have a serious relationship with at the conclusion of the divorce, then they will understand that this is not the appropriate time to be introduced to the children.
  2. Couch surfing sucks! Don’t move out of the marital home without a plan. Changes will happen as you go through your divorce, so be prepared to deal with life as it comes at you. The biggest change clients struggle with is adapting to living on a now single income. During this turbulent time, you need to provide stability for your children. That means you need to provide an appropriate home for them while going through the divorce. So, don’t jump the gun and move out of the marital home without a solid financial plan, and a safe place for your children to visit or live.
  3. Don’t share the details of your divorce with your children. Divorce doesn’t mean hide the fact that you are going through a divorce from your children. But there are certain facts that should remain between adults. Allow your children to be children for as long as possible. Remember, the changes taking place in your life are also taking place in theirs. It’s hard enough for children to cope with major life changes. They certainly shouldn’t be burdened with adult conversation and information about the divorce. Adult conversation is just that!
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  1. Your children are not the Pony Express. Don’t use your children as a go between to relay messages to your spouse. If you are unable to speak to your spouse civilly, then hire an attorney to assist you. It will be their job to communicate with your spouse or spouse’s attorney during the divorce. But, don’t use your children as a form of communication between each other.
  2.  It wasn’t immaculate conception! Don’t think that because you are divorcing, you are the only parent. The children have two parents – and always will. Don’t force them to choose between their parents. They love both of you. So, avoid putting them in the middle of the hostility and anger.
  3. Your children are not Olympic gold medal winners! Don’t use extra-curricular activities to monopolize your children’s free time. If they didn’t participate in the activity while you were married, they most likely don’t need to participate in the activity while the divorce is pending. Now is not the time to enroll them in an excessive amount of activities, especially if these activities take place on your spouse’s parenting time. If you can’t agree on extra-curricular activities, the rule should be that parenting time with the other parent is far more important than participation in an extra-curricular activity.
  4. It’s not your way or the highway! We all know divorce is hard on children. It is hard enough for the children to acclimate to living in two households. Respect that there are now two households for the children, with two sets of rules. Although consistency is ideal, you can’t expect your soon to be ex-spouse to share in your beliefs and rules regarding discipline.
  5. Avoid purchasing big ticket items while going through your divorce. It’s not the time to buy a new car or home. Wait until the dust settles, and you’ve reached a settlement agreement with your spouse. Your spouse could claim that you used marital money to finance your new car or home. It then may become a marital asset to be divided in the divorce.
  6. Pay your bills. You need to continue to meet your obligations. If it is a joint debt, you remain obligated. There is life after divorce. And the consequences of your decisions during your divorce will follow you afterwards. Some people believe that getting a divorce means walking away from marital debt and starting over. No! You still have responsibilities – meet them.
  7. Your bartender is not your counselor! Use discretion when talking about your divorce. Don’t over-share all the details of your divorce with your friends and colleagues. Refrain from making every conversation about the trials and tribulations of your divorce. Some things are better left private. And, after the divorce, you want your friends to be standing by you.

Parental Child Abduction

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Parental Child Abduction

Are you going through a divorce and have imminent concerns that your spouse will remove the children from the United States, and refuse to return them?

If so, there are steps that you can take to prevent your spouse removing the children from the United States.

The first action is to have your family law attorney obtain an order from the court preventing removal of the children from the United States. Once you have obtained this order, you next should contact the U.S. Department of State and enroll your children in the Children’s Passport Issuance Alert Program (CPIAP).

CPIAP allows parents who have “imminent concerns” about parental abduction to enroll their U.S. citizen children in CPIAP. CPIAP prevents the other parent from applying for, and obtaining a passport for the children without consent from the other parent. Note, this program is only for children that are U.S. citizens.

For details regarding this program see this site: Children’s Passport Issuance Program

I Want Custody of My Children, but I Love Facebook: Why you should ‘unfriend’ Facebook during a custody case

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Why you should ‘unfriend’ Facebook during your child custody case

Although my West Michigan family law practice involves meeting with clients about a range of issues, child custody issues are often the most challenging for my clients. The toll child custody takes on the individual parties’ emotions, children, and finances is the number one reason why I encourage people to learn more about Collaborative Divorce before things become too heated.

Child custody cases can be gut wrenching for all of the parties involved, depending on the nature of the case. Unfortunately, it is the emotional nature of child custody issues that makes my clients’ misuse of social media one of my most challenging issues as an attorney.

I get it. It feels good—even if it’s just for a moment— to blow off steam with a piping hot Facebook post (that doesn’t actually mention your soon-to-be-ex by name, so it’s harmless, right?). And all of those Facebook ‘likes’ on our child custody issue frustrations and woes can feel very validating at a time when we probably need validation from our friends and family the most.

However, if you stopped on this post because you think you are about to be involved in, are in the middle of, or are even nearing the end of a child custody issue, please DO NOT update your Facebook status until you have finished reading this.

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Here are my top seven recommendations I make to my own clients who are going through a child custody dispute:

  1. NEVER slam your ex on social media. 
  2. In fact, I instruct all of my clients to refrain from any and all Facebook updating, commenting, liking, or sharing that can be seen as making a comment on the case or disparaging the other party. Believe it or not, as good as the short-term adrenaline rush might feel to post your true feelings about the case on Facebook for the world, and especially your ex, to see, that’s all that it really does is heat up an already difficult situation.
  3. Better yet, stay off Facebook until your case is complete. Don’t use Facebook to share your life with the world while your case (and your child’s and your future) is pending with the court. It’s simple: if you stay off Facebook, nothing you say, innocent or otherwise, can be used against you, because it’s just not there to be found.
  4. If you decide to stay active on social media during your child custody dispute, remember that your social media photos are worth more than a thousand words. Never post pictures of themselves in bars, drinking alcohol, at parties, and definitely NEVER using illegal substances. What you may see as innocent pictures of a fun night out with friends, are now being shown in court as a way to support your ex’s effort to depict you as the worst parent in the world.
  5. Remember: If it is on your Facebook account, your judge will see it.
  6. Social media privacy is an oxymoron. If you think none of this applies to you because you are smart and have your social media accounts set to private, think again. You would be amazed at how many of my clients’ “friends” have been willing to provide their opposing party with access to their “private” social media posts and photos.
  7. But if your account is not set to private, your ex’s attorney IS regularly reviewing your activity. I know in my own practice I have looked at numerous Facebook accounts and have found photos including drugs and drug paraphernalia laying about the house, photos of people who are visibly intoxicated, photos that undoubtedly show an adulterous relationship, and read volumes of derogatory comments about the other party that go directly to the comment author’s own fitness as a parent.

The real take home point, in case you have missed it, is that when you are fighting for your children, stay away from Facebook and other social media while your child custody case is ongoing. What you post can be twisted and turned against you. Getting through a heated custody case is hard enough. There is no reason to make your attorney’s job as your advocate harder because of a ridiculous Facebook post.

Before you post that comment or photo on Facebook, remember your end goal: custody of your children. Facebook will be there for you when it’s all over.

Common Divorce Questions: How Is Child Support Determined?

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Child support can be a contentious issue.  The way it is resolved in our jurisdiction is that all family law attorneys use the same support formula the court uses.  We have a software program at Schmitt Law, PLLC, that we use to determine the amount of support one parent pays to the other.

What is Child Support?

Child support is a court-ordered payment from one parent to the other to help support the raising of the children.  It stems from the legal theory that children have a legal right to financial support from both parents.  A parent cannot avoid paying child support by agreeing to have his or her parental rights terminated.

The Michigan child support formula determines which parent will pay support.  Some factors considered are:

  • The income earned by each parent.
  • The number of children that are supported.
  • How many overnights the children spend with each parent.

We put those numbers into our software program, and it objectively gives us a number.  The parents can deviate from that amount only if there is a legitimate reason to do so.

If one parent wants the other to pay a different amount, we must do a deviation addendum explaining why and file it with the court.  A friend of the court and the court must approve the request, and then it becomes the order of the court.

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Why Does a Parent Pay Child Support?

Some parents get confused about why they pay child support.  They may say “I buy everything for my kids.  Why do I have to give the other parent any money?”  The answer is that Michigan state law says it is the child’s right to receive support and the parents may not waive it.

The child support formula involves determining amounts to be paid by each parent for:

  • The uninsured portion of health care costs to be paid by each parent.  The custodial parent will have to reach a certain amount of out-of-pocket payments before that number is used.
  • Basic needs for food, clothing, and shelter.
  • School supplies.
  • Extracurricular activities.

If the parents want to agree on an amount, and the court confirms it meets the needs of the children, the parents can do that.

One thing the court cannot do is mandate how the receiving parent spends the money.  That parent does not have to keep an accounting of how the money is spent.  The paying parent cannot micromanage the spending habits of the receiving parent.

Am I am able to receive child support during the pendency of the divorce action?

On the onset of the divorce, either party may file a motion to establish temporary custody, parenting time, and child support.  This Order will remain in effect until the Court issues a new Order, or until the Judgment of Divorce is signed.

For assistance with your child support issue, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Collaborative Divorce – A Better Way

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Collaborative Divorce - A Better Way

Divorcing couples are often unaware of how a Collaborative Divorce works.  They gravitate toward traditional litigation because that is what they know.  At Schmitt Law, PLLC, one of the options is the Collaborative Divorce process which allows the couple to divorce dignity and be effective co-parents in their new life as single parents.

Why I Believe in Collaborative Divorce

Traditional litigation is an adversarial process pitting one party against another each trying to “win” the case they present to the court.  A Collaborative Divorce is designed to put control into the hands of the couple themselves.  They resolve their issues together without court intervention.  There are many advantages to a Collaborative Divorce:

  • The couple maintains control of the process.  There is an open exchange of ideas.  They can reach a fair and equitable child-centered resolution without needing a court to decide for them.  In litigation, when a couple cannot agree on custody and visitation, courts are charged with the duty to make decisions that are in the best interest of the children, but a judge will never know the family as well as they know themselves.
  • The couple maintains personal dignity and respect.  They can co-parent effectively after the divorce.  They make the decisions themselves about how much time each parent spends with the children, how they will spend holidays, and how they will manage the children’s extra-curricular activities.
  • Experts are available to help with decision-making.  A team of qualified experts are available to assist the couple in decision-making.  For example, a financial neutral will help with tax implications of a settlement, possible spousal support and can give direction on reasonable child support options.  The financial neutral also creates post-divorce financial models for each party to give them a clear picture of their budget options.  Child Specialists can help with childcare decisions.  Counselors can help work through communication issues that may be blocking how to solve what may seem like insurmountable disagreements.
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  • It is confidential.  Nothing is filed with the court except the Consent Judgement of Divorce.  Financial documents and other personal information is not filed with the court as it is in litigation.
  • It can be less expensive.  A Collaborative Divorce avoids the expense of litigation since only one set of experts are retained.  The couple commits to full disclosure instead of going through a lengthy, back-and-forth fact-finding process of litigation.  There is only one court hearing where Judgement of Divorce is presented for the signature of the judge.  It then becomes the final divorce decree.

For more information about how the Collaborative Divorce process can work for you, contact me, Laurie Schmitt, Attorney at Law, at Schmitt Law, PLLC, by calling 616-608-4634.

Change of Domicile and the 100 Mile Rule

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Change of Domicile and the 100 Mile Rule

Are you contemplating moving out of town or out of state with your child? Will this move be more than 100 miles from the child’s current legal residence? Has the court awarded you joint legal custody or sole legal custody?

 Before you decide to move with your child, you should review your court order. Did it grant both of you joint legal custody of the minor child? If so, you will be unable to move with the child more than 100 miles from the child’s current legal residence without consent of the other parent, or permission from the court. The child’s legal residence is where each the parties lived on the day the order was signed by the judge. This is called the 100 Mile Rule.

Did your court order grant you sole legal custody of the minor child? If so, this is the exception to the 100 Mile Rule. If you have sole legal custody, you will not have to seek the consent of the other parent, or the permission of the court if you want to move more than 100 miles from the child’s legal residence. You have determined that you have joint legal custody of the minor child. And let’s assume the other parent will not consent. You will need to pursue your request for a change of domicile through the court. The court will review the factors found in MCL 722.31 to determine if they will grant your request for a change of domicile.

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MCL 722.31 Factors:

  1. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
  2. The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

When applying these factors, the court’s main focus is whether the move will improve the quality of life for both the child and the relocating parent, not just the parent. The focus must remain on the child. Courts want to hear about quality of life issues such as:

  1. The quality of the schools in the proposed location. The court will determine if the school is comparable to the child’s current school.
  2. The availability of extra-curricular activities. If the child is currently involved in extra-curricular activities, what is the availability of similar activities for the child in the proposed location.
  3. The presence of extended family in the current location verses the proposed location.
  4. Any other factors that provides the curt with specifics of how this move will enhance the child’s life.

Because of the complexity of a change of domicile case, it can be difficult to represent yourself. Furthermore you can expect that the results for a change of domicile case will vary significantly from court to court, as courts interpret the standards for a change of domicile very differently.

To conclude, it is best to seek the advice of a family law attorney versed in change of domicile cases prior to you filing any motion seeking to move with the child.

Enforcing Child Support / Friend of the Court

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The Friend of the Court is responsible for enforcing child support orders.  Many enforcement methods (described below) can be used if a parent does not follow terms of the order.

Income Withholding

An income withholding order can be used to collect both current and past-due support (arrearages).  All new and modified child support orders are required to include income withholding, unless both parents and the court agree on other payment methods.

Under income withholding, child support and medical support payments are deducted from the non-custodial parent’s paycheck.  The employer sends the support payments directly to the Michigan State Disbursement Unit (MiSDU).  Federal and state laws require employers to honor income withholding orders.

A parent’s income from other sources, such as unemployment benefits, Social Security benefits, independent contracting, workers’ compensation claims, and insurance claims are also subject to income withholding.

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Tax Refund Offset

If the amount of past-due support (arrearages) reaches a certain level (threshold), both federal and state tax refunds can be intercepted to pay support.

The past-due threshold for state tax refund offset is $150.  The federal past-due threshold is $150 for cases that receive cash assistance; the non-cash assistance threshold is $500.

For both state and federal tax refund offset, the person who owes the support receives a notice explaining his or her right to object to the tax refund offset and reasons to object.  In a joint tax return, a spouse may make a claim to retain his or her portion of the refund.

Show Cause/Bench Warrant

A person who has not paid child support or has not provided medical support can be ordered to appear before the court to explain to the court why he/she should not be held in contempt.  This is called a show cause hearing.

If the person ordered to appear at a show cause hearing does not show up, the court may order a variety of enforcement actions, including issuing a bench warrant for the arrest of the person who did not show up for the show cause hearing.

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Lien/Levy

The Friend of the Court or the Office of Child Support can initiate a lien/levy against real or personal property, financial assets, or insurance claims for collection of child support.

License Suspension

Driver’s licenses, recreational or sporting licenses (hunting, fishing, etc.), and professional licenses can be denied, suspended or revoked if a parent is behind more than two months in payments.

Credit Reporting

If a parent is behind more than two months in payments, he or she is automatically reported to a consumer credit reporting agency.

Passport Denial

A parent’s passport may be denied or revoked when he or she reaches the past-due support threshold of $2,500.

National Medical Support Notice

Enforcement of medical support is done through the National Medical Support Notice for employer-provided insurance or through any of the other enforcement methods listed if cash payments are required.

Pension Account(s)

A Qualified Domestic Relations Order (QDRO) is a support order against a private pension account.  An Eligible Domestic Relations Order (EDRO) is a support order against a state or federal government pension plan.  A QDRO or EDRO can be issued for current support or past-due support (arrearages).

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Surcharge

A judge may order a surcharge be added to a case that has arrearages.  If a surcharge is ordered, it will be added to the case every January 1st and July 1st and become a part of the total amount of support owed.  The surcharge is a variable rate tied to five-year United States Treasury Notes, plus 1%.

Criminal/Felony Charges

The Friend of the Court can refer the case to the county prosecutor, who may charge the person who owes support with the crime of felony non-support.  In some counties, the case may be referred to the Attorney General for criminal prosecution of felony non-support.  Felony non-support charges are generally issued after other child support collection methods have not been successful.  Custodial parents may also ask the county prosecutor or Attorney General for felony non-support prosecution.

For assistance with your child support issue, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.