New Forms New Approach

By Jim Fausone

VA has begun releasing forms on specific disabilities for use by its physicians. This initiative marks the beginning of a major reform of the physicians’ guides and automated routines that will streamline the claims process for injured or ill Veterans. 79 different disabilities are to get the new forms. This initiative will also help automate the medical records system at VA.

For Veterans who receive their care from private physicians, VA has placed the disability benefits questionnaires on its Internet site: http://www.vba.va.gov/disabilityexams/ with instructions for physicians to submit examination results on Veterans’ behalf.

To read more about this change click on: http://www.veteranstoday.com/2010/10/26/new-medical-forms-will-streamline-veterans-claims-process/

VFW PAC in Dispute

by Jim Fausone

The Veterans of Foreign Wars (VFW) set up an independent political action committee (PAC) years ago. The VFW has about 1.5 million members, and the endorsement from its PAC is usually widely advertised by the candidates. Now the VFW PAC is being challenged for endorsing incumbents in Congress.

VFW's commander in chief, Richard L. Eubank, and two other officers called for the rescission of the endorsements and said that the endorsement process "unintentionally provided favoritism to the incumbents." It is hard to get real change at VA when groups like this PAC simply rubber stamp the incumbents. If you want to read more about it:

http://ap.stripes.com/dynamic/stories/U/US_VFW_PAC_ENDORSEMENT?SITE=DCSAS&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2010-10-13-12-32-47

New Landlord/Tenant Law Provides Help for Domestic Violence Victims

by Wendy Alton

Michigan Governor Granholm has just approved a new law that becomes effective immediately. This law, codified as MCL 554.601b, provides assistance to tenants who are victims of domestic violence, sexual assault or stalking.

Victims of domestic violence, sexual assault, or stalking are often in a situation where they must move immediately, whether to a shelter or another residence, because there is an immediate danger of injury, harm or potential assault. However, if that victim is a tenant in a rental residence, the victim/tenant is still responsible for rent even if they vacate. Prior to this new law, there was nothing in Michigan’s law that provided assistance or help to the victim—and the victim/tenant could be sued for rent that was not paid.

The new law, which applies to leases entered into, renewed, or renegotiated after October 20, 2010, allows a tenant, who is in reasonable apprehension of present danger to themselves or their children, submit a written notice of intent to be released from their rent payment obligation. The law dictates that the tenant must deliver to the landlord, by certified mail, a notice that they intend to be released from their rent payment and must include, with that notice, written documentation that there is a PPO, a probation or parole order, or a written police report (if it resulted in charges being filed within 14 days). There are other types of written documentation that can be provided as well, and this is explained in the new law. Upon providing the proper notice with supporting documentation, the tenant is released from the rent payment obligation on the 1st day of the second month that rent is due after notice is given. However, the release is not effective unless the tenant actually vacates.

As family law attorneys, we are seeing escalated instances of domestic violence. This law is designed to assist victims who are truly in danger so that they can better protect themselves and their families.

You can read the law itself here: MCL 554.601b

You can read a Detroit Free Press article on the new law here: New Domestic Violence Law Helps Tenants, Landlords

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

In Custody Hearings, the Judge Cannot Just Rely on Friend of the Court’s Recommendation

by Wendy Alton

In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:

(1) The love, affection & other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection & guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & 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 & 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 & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & 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 custody dispute.

After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.

However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court’s decision and sent the case back to the trial court for a new custody hearing.

In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Bad Paper Discharge

by Jim Fausone

The story is not that unusual, a service member suffering from psychological problems starts to self medicate, gets kicked out of the service and loses access to VA benefits. Veterans advocates see cynical forces at play in the use of administrative discharges for reasons including misconduct, personality disorder and adjustment disorder — defined as an excessive reaction to a stressful event, with symptoms similar to PTSD.

The Department of Defense stands to save between $5 billion and $20 billion in lifetime health care and benefits to the estimated 10,000 to 20,000 veterans with so called dubious discharges. Department of Defense officials have denied they use improper discharges as a cost-saving measure and say discharge policies continue to evolve as they learn more about PTSD and traumatic brain injury. If you like a conspiracy, this has all the makings needed.

Read more at: http://www.statesman.com/news/texas-politics/bad-paper-dischares-can-stymie-veterans-health-care-950891.html?srcTrk=RTR_781143

Judge John MacDonald Joins Firm

Fausone Bohn, LLP is pleased to announce that Hon. John MacDonald has become “Of Counsel” with the firm.

Judge MacDonald retired from the Bench in January 2009. He served 24 years as a Judge in the 35th District Court where he served as its Chief Judge. John lives in Northville, Michigan where he holds the status as a former supervisor of Northville Township and a former elder of Ward Church.

Judge MacDonald was in the private practice of law for 23 years before being elected to the Bench. He is a graduate of the University of Michigan and Wayne State University School of Law. He will use his considerable skill and experience on private arbitration, mediation and facilitation assignments.

Attorney Andrea Hayden Elected as President of the Great Lakes Environmental Law Center Board of Directors

The firm would like to congratulate Andrea Hayden, on her recent election as president of the Great Lakes Environmental Law Center (GLELC) Board of Directors. The GLELC is a non-profit organization founded to protect the Great Lakes, one of the world’s largest freshwater resources. The organization works closely with Wayne State University Law School, and national organizations such as Natural Resources Defense Council. Most recently GLELC submitted an amicus brief in the Michigan Supreme Court case Anglers of the Ausable, Inc. v. the Michigan Department of Environmental Quality, a case involving riparian rights issues along with many additional complex environmental law issues.

The executive director of the GLELC, Nick Schroeck, was interviewed in today’s Detroit News regarding the organization in general and the Anglers of the Ausable case in particular.

You can find the article at: http://detnews.com/article/20101011/METRO/10110321/1478/rss
More information on the GLELC can be found at: http://www.glelc.org/

Spousal Support (Alimony) is Based Upon More than Just a Difference in Income

by Wendy Alton

A common misperception of people going through a divorce in Michigan is that spousal support (formerly called alimony) is based solely or mostly upon a difference in income between the spouses. While it is true that the court considers income when deciding if spousal support should be awarded—income is just 1 of 14 factors that the courts review.

In deciding whether or not spousal support should be awarded, the court must review the following factors before a decision is made, Berger v Berger 277 Mich App 700, 726-7 (2008):

1. The past relations and conduct of both spouses
2. The length of the marriage
3. The ability of both spouses to work
4. The source and amount of property awarded to each spouse
5. The spouses’ respective ages
6. The ability of both spouses to pay spousal support
7. The present situation of each spouse
8. The needs of each spouse
9. The health of each spouse
10. The prior standard of living of the couple and whether either is responsible for the support of others
11. Contributions of the spouses respectively to joint marital property
12. A spouse’s fault in causing the divorce
13. The effect of cohabitation on the spouse’s financial status
14. General principles of equity.

There are no hard and fast rules for determining if spousal support should be awarded, how much should be awarded and for how long. Each case is reviewed independently and separately to determine the answer to these questions.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Less Transition for Children not Proper Cause to Change Parenting Time

by Wendy Alton

When going through a divorce in Michigan, it is extremely important to carefully agree upon a parenting time schedule with your children that will work for a long period to come. Some parents decide to share joint physical custody—meaning that both parents aim to spend as much time as they can with their children, usually resulting in half of the child’s time with one parent and half with the other.

What usually results in such an agreement is that the children rotate houses every week (one week with one parent and the next with the other parent), or the children spend some days in the week with one parent, and the other days in the week with the other parent. Obviously, the latter arrangement results in many transitions for the children, as they are rotating houses up to 3-4 times per week.

In the case of Stelman v Stelman, unpublished case per curiam of the Michigan Court of Appeals, issued August 3, 2010 (Docket No. 294105), the parents had such an agreement. The children were with their father 4 nights in the 1st and 3rd weeks of the month, and 2 nights in the 2nd and 4th weeks of the month. During the summer months, the parents took full alternating weeks. The father in Stelman sought a parenting time change, asking the court to change the parenting time to alternating weeks throughout the entire year. Under his current parenting time plan, he spent 12 overnights with his children, and his proposed would increase it slightly to 14 overnights with his children. Thus, the amount of overnights with the children would remain consistent. What the father proposed is that alternating weeks throughout the entire year would be a better plan because it would reduce the amount of transitions for the children by about half.

Oakland County Circuit Court ruled that his reason for seeking the change (reducing transitions), did not meet the threshold required for seeking a modification of parenting time. The Court of Appeals agreed. In Michigan, in order to seek a modification of parenting time, you must provide the court with evidence that there has been a change in circumstances or there is proper cause for seeking the change. Both courts were very clear that just a new proposal that reduced transitions did not meet the required evidence of change in circumstances or proper cause. The father never showed “what had changed” to make the existing parenting time schedule in need of modification. Just seeking a new arrangement to reduce transition for the children is not enough for the court to change the parenting time schedule.

If you are going through a divorce with children, it cannot be emphasized enough that you have good legal counsel to help you decide issues of custody and parenting time. Your decision becomes final and unchangeable unless there has been a change in circumstances or proper cause—this is a difficult evidentiary burden to meet. The decisions made in your divorce have long-lasting effects on you and your children—and you should be assisted by an attorney who can educate and advise you so you understand the full ramifications of your decision.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Michigan Supreme Court Hears Child Support Case

by Wendy Alton

The Michigan Supreme Court will hear oral arguments this afternoon, Wednesday, October 6, 2010, on the case of In re Beck, opinion per curiam of the Court of Appeals, issued March 4, 2010 (Docket No. 293138) FOR PUBLICATION. The sole issue for the Michigan Supreme Court is whether a parent whose rights to his children have been involuntarily terminated pursuant to the Juvenile Code can be ordered to continue to pay child support.

In the Beck case, a father’s parental rights were terminated pursuant to the Juvenile Code in the Oakland County Circuit Court, meaning that they were terminated involuntarily due to abuse or neglect. However, despite the fact that his rights were terminated, the trial court ruled that his child support obligation would continue. The father appealed the trial court’s decision.

The Court of Appeals affirmed the trial court’s decision, and held that there was a difference between a parent’s rights and a parent’s responsibilities. The Michigan Legislature permits a court to terminate a parent’s rights, but is silent regarding a parent’s responsibilities if rights are terminated. The Court of Appeals ruled that children have a right to receive financial support from their parents, and this right cannot be bargained away by the parents. Further, a parent’s responsibility or financial liability to the child has always been treated distinctly from a parent’s rights. For example, a parent isn’t denied parenting time just because they are behind or delinquent on child support.

The Court of Appeals noted that they previously ruled in Evink v Evink, 214 Mich App 172 (1995), that a parent who voluntarily releases parental rights to the other parent is still required to pay child support. The Court of Appeals also noted that the only situation where a parent’s child support obligation is extinguished is if the parental rights are voluntarily given up pursuant to an adoption, as the court held in Bradley v Fulgham, 200 Mich App 156 (1993).

Lastly, in Beck, the Court of Appeals reasoned that it was against public policy to extinguish a parent’s duty to pay child support when their rights have been involuntarily terminated. This could result in parents refusing to report abuse or neglect because it would result in the removal of financial support. It also punishes a child financially for the misdeeds of the parent.

It will be interesting to see how the Michigan Supreme Court will rule, considering that the Legislature is silent on this issue, and the Court of Appeals has ruled, in the law’s silence, that a child support obligation continues after an involuntary termination of parental rights.

If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Speed Up VA

by Jim Fausone

We get asked all the time - "can you make VA move faster on my claim?" My answer is "No one can make VA move fast". The US Supreme Court just agreed with me. On Monday the Supreme Court announced it will not hear a case challenging a lack of speed by the government.

The Vietnam Veterans of America and the Veterans of Modern Warfare allege that the VA takes far too long to process claims made by its members and for all veterans. The groups wanted a ruling that would force VA to respond within 90 days time for all initial claims and 180 days to resolve appeals. The lower federal courts ruled against the veteran groups on a variety of issues and the US Supreme court refused to take up the case. Apparently no one can make the VA beast move in a timely fashion. We will see if Congress takes up this challenge now that the US Supreme Court has declined.

To read more: http://liveshots.blogs.foxnews.com/2010/10/04/vets-groups-lose-at-supreme-court/#ixzz11U5ozZcw

Relocating with a Child After a Divorce

by Wendy Alton

In Michigan, a divorced parent must seek approval from the Court if they wish to move their child out of state. If both parents agree to the relocation, the Court generally grants it. If one parent objects to the relocation, the Court may grant the request if the parent seeking the relocation can prove by a preponderance of the evidence that the relocation is warranted after reviewing the following factors:

1) Will the change improve the quality of life for the child and parent
2) The degree to which each parent has complied with their parenting time schedule
3) The degree to which the court can modify parenting time to preserve & foster the relationship 4) The extent to which the opposing parent is motivated by financial reasons
5) Domestic violence, regardless of whether it involves the child

The Court of Appeals recently evaluated a relocation case in Davenport v Mosholder, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2010 (Docket No. 295852).

In Davenport v Mosholder, a relocation request was filed by the mother who wished to move from Michigan to Georgia. The testimony revealed that the child generally resided with his parents on alternating weeks. The trial court eventually concluded that the child had an established custodial environment with both parents, but that the proposed relocation would not alter that established custodial environment. Further, the trial court indicated that while the father would have less overnights after the move, the reduction was not significant and the child would still have daily access to his father, thus maintaining the established custodial environment.

The Court of Appeals, however, disagreed with this determination, indicating that the move to Georgia would clearly alter the established custodial environment. In an interesting analysis, the Court of Appeals relied on evidence that the father had almost daily contact with his child, coached his sports, served as a scout den leader, and generally was active in the child’s life on a daily basis, despite having the child only half of the year on an overnight basis. The Court of Appeals found that daily contact via webcam when the child relocated to Georgia was not an effective substitute for the clearly established custodial environment between father and son as it existed in Michigan.

The Court of Appeals recognized that an established custodial environment can exist with a parent even if that parent does not have the majority of the overnight parenting time. The Court acknowledged that active daily involvement can be the basis for an established custodial environment.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.