How to Establish Paternity and What it Means

Melissa Cox, Esq.

When a child is born and/or conceived during a marriage, the husband is presumed to be the father, and is automatically considered the legal father of the child pursuant to Michigan law. When a child is born out of wedlock, however, parents are required to take certain action in order to establish the paternity of the child. Even further steps are required by the acknowledged father to establish or determine custody of the child.  

The first and simplest mechanism for establishing the paternity of a child is though the execution of an Affidavit of Parentage. The mother and father publicly acknowledge that the child is the father’s by signing a notarized Affidavit and filing it with the Michigan Department of Community Health, Vital Records Division. There is a form for this available at most hospitals as well as the Probate Court and the County Clerk’s office.  If it is signed at the hospital when the child is born and the information is completed for the original birth certificate, the name of the father will be on the birth certificate.  If the Affidavit is filed after that time, the birth certificate will NOT be changed automatically to include the father and separate forms must be filed with the Department of Community Health.

It is crucial to understand that the execution and filing of the Affidavit of Parentage provides that the mother has sole legal and physical custody of the child unless and until a court order grants the father custody and/or parenting time. The Affidavit merely gives the father "standing" to file a case in court asking for a change of custody or to have rights to parenting time. 

A father who has not established paternity through Affidavit does not have rights to be enforced and must proceed through a lawsuit for paternity. Pursuant to MCL 722.714(1), the action must be initiated in the county where either the mother or child lives, unless they both live outside of Michigan, in which case the action may be initiated in the county where the father resides.  To initiate a paternity action, the moving party must file a Complaint with the Circuit. If any party to the action disputes the alleged paternity, the court will order blood or DNA testing in an attempt to establish the likelihood of paternity. MCL 722.716(5) states that if a DNA test results in a probability of paternity of 99% or greater, there is a presumption of paternity. Once the presumption is established through DNA testing, any party can petition the court for an Order of Filiation, which will legally declare the paternity of the child, and will also include a provision regarding the custody, parenting time, and support of the child.

Please contact attorney Melissa A. Cox at 248.380.0000 or mcox@fb-firm.com if you have any questions regarding paternity or child custody.

Another Stupid Idea by the VA

The Department of Veterans Affairs is proposing a major change to the benefits process. Currently, a veteran can send any sort of written note to the VA and it starts a claim or appeal for VA benefits. The reason for this is because the VA system is supposed to be uniquely pro-claimant and make it extremely easy for the veteran to file and develop his or her claim. The effective date for many of the benefits is the day that VA receives this piece of paper.

The VA is now proposing that only requests made on official VA standardized forms will be accepted. The reason for this? The VA claims that this will aid in reducing the claim backlog that has about 400,000 veterans waiting more than 125 days for a decision. The VA wants us to believe that the VA workers spend so much time trying to read the letters and figure out what is being claimed, that it contributes to the backlog and wastes time.

One of the fears by veterans’ groups is that requiring a standardized form will take time and effort to fill out, leading to a later effective date (and therefore less money) for the veteran when the benefits are awarded. Another concern is that claims will be denied or kicked back to the veteran because he or she failed to check a certain box or fill out the form correctly. Furthermore, concern is had that the most vulnerable veterans—the homeless, those with a traumatic brain injury, or those with limited education—would have the most trouble obtaining and filling out the form correctly.

Critics and the VA alike recognize that the VA system is broken. It is backlogged and the in-house processes that VA utilizes are illogical and antiquated. However, requiring standardized forms will only make the system more difficult for veterans to navigate. Instead, effort should be made to have competent VA workers in the mailroom—ensuring that mail that is received is properly saved, statused in the computers, and passed along to the correct department. VA should have employees that actually process claims in order of receipt, instead of handling easier claims first. The VA should not lose files or records, and should properly follow its own protocols uniformly among its offices in each state. VA shouldn’t take 3 months to transfer files between offices when a veteran moves to a different state. These changes would actually speed up the benefits process and make it more productive. Unfortunately, it seems as though VA is hell bent on “solving” the backlog problem by making the whole process more difficult for the veterans. 

VA Counsel held in contempt of court, costs taxpayers $45K

What should have been a mere $200 fine for failing to appear in court, turned into a case that settled for $45,000 in fines.

Judge David M. Murkowski, of the Kent County Probate Court, said that typically when someone fails to appear in court without an excuse, a small fine is imposed. In the case of VA regional counsel Roland L. Bessette, however, the case dragged on, became a “proverbial federal case,” and two years later was settled for $45,000 in attorney’s fees – a burden that US taxpayers as a whole will bear.

How could this happen?

The case began when the VA became involved as an interested party in a veteran’s conservator’s probate filing because there were some inconsistencies in the filing. Bessette filed an appearance with the court as an interested party. In September 2011, Judge Murkowski issued a notice to appear at a scheduling conference, which Bessette failed to attend.

Judge Murkowski said that under federal law, some circumstances allow for VA counsel to not report to the court, typically when the VA is an uninterested party in the case. However, in Bessette’s case, he filed as an interested party. The judge then issued a motion and order for Bessette to appear and show cause as to why he should not be held in contempt.

Instead, in December 2011 Bessette requested the U.S. Attorney in Grand Rapids to seek removal of the contempt proceedings to federal court in Grand Rapids. Bessette claimed immunity as a federal employee, and that the probate court did not have jurisdiction over the VA, and that the federal court should toss out the order to show cause.

In September 2012, U.S. District Judge Robert H. Bell ruled that a government attorney “who voluntarily subjects himself to a state court’s authority” by filing an appearance on the behalf of that federal agency has the same obligations to the court as any other lawyer who files an appearance.

Judge Bell denied Bessette’s motion for reconsideration, saying that while Bessette’s defenses may be viable to the order to show cause, they are state defenses that rely on state law and should be heard in a state court.

Finally, in November 2012 Bessette filed for leave of appeal in the 6th U.S. Circuit Court of Appeals. After mediation with the court, the VA agreed to settle the case for $45,000, which would be for the probate court’s attorney’s fees.

Judge Murkowski noted that he did not want the people of Kent County to bear the cost of this lawsuit, but unfortunately American taxpayers would. Bessette has since retired.

Read more on the case at: http://milawyersweekly.com/news/2014/01/23/case-that-was-worth-a-200-fine-settled-for-45k-in-fees/

Two Clerks Intentionally Misfiled Over 1,800 Vets’ Records at the NPRC

In another round of embarrassment for the VA, two clerks at the National Personnel Record Center in Missouri intentionally destroyed or misfiled over 1,800 US veterans’ personnel records.

According to a report on Stars & Stripes news, the two clerks were student employees, however one of the perpetrators, Lonnie Halkmon, is 28 and has worked at the center since 2005. Stanley Engram, 21, also plead guilty to a misdemeanor charge of destruction of government records, and now faces probation to six months in prison under federal sentencing guidelines. Halkmon was already sentenced to two years of probation and 40 hours of community service.

The punishment is a relative slap on the wrist for committing an act that could potentially affect thousands of veterans. From Dec. 7, 2011 to March 28, 2012, over 1,200 files were assigned to Halkmon, and 850 were reported missing. Clearly, this was not a case of mere negligence. What’s more, Halkmon was allowed to resign rather than be terminated because he had worked at the center for almost 10 years, but then claimed he had not received proper training.

What could possibly be the motive behind this case? According to state court files, some employees seeking to earn an incentive bonus were intentionally misfiling, or “stashing,” records to finish more quickly. But even an “incentive bonus” doesn’t seem to explain the lengths with which Engram went to dispose of records.

Engram's guilty plea says that 241 military records were found in the woods near the center on July 3, 2012, with 300 names and Social Security numbers visible on the documents. The records were traced to Engram, who admitted disposing of the records found in the woods, “abandoning” files in the center and throwing them away at home.

In all, Engram admitted to destroying or purposely misfiling more than 1,000 records.

This is quite simply an outrage. Veterans and their families often have to jump through many hoops to get their hands on personnel records, which are the key to many benefits. A case such as this, which shows a complete lack of respect toward veterans, does not help the situation. It is an embarrassment and a shame that thousands of veterans could potentially miss-out or have their life enhancing benefits delayed.

For more on this story, check out the Stars & Stripes Report here: http://www.stripes.com/news/veterans/more-than-1-800-vets-records-intentionally-destroyed-or-misfiled-by-2-clerks-1.264849#.Uu4-QR3hW2k.email

PTSD – Irritable Bowel Syndrome Link is No Joke for Vets

When Senator Harry Reid requested more funding to the Department of Defense for research on Irritable Bowel Syndrome (IBS), it became a comedic punch-line in the news and in former Defense Secretary Robert Gates’s recent memoir.

However, the link between Post-Traumatic Stress Disorder (PTSD) and the risk of IBS is a real concern for veterans, according to national medical researchers. The Department of Veterans Affairs has determined that IBS is a disorder that can be classified as a disability if related to military service – though the exact cause of the syndrome is difficult to pinpoint.

"The link between being a veteran and having a higher risk of IBS is unclear, partly because the underlying cause [of IBS] is unclear" says Dr. Phillip Schoenfeld, a University of Michigan medical school professor and expert in gastroenterology, including IBS.

Certainly, stress induced from service during wartime may exacerbate symptoms by inducing chemical and hormonal changes. For example, one research finding is that female veterans suffering from PTSD are much more likely to have IBS than female veterans who don’t have PTSD, says Dr. Schoenfeld, who leads the gastroenterology division at the Ann Arbor VA hospital.

In 2010, Congress did request the Institute of Medicine and the National Academy of Sciences to begin a comprehensive review of best treatments for chronic multi-symptom illnesses, or CMI, faced by Gulf War veterans. The report confirmed a growing consensus that no “specific causal factor” will be identified for IBS, however “stress and crowded war theater conditions” that may exacerbate the spreading of infections are suggested as triggers for IBS.

Whatever the cause, the correlation between PTSD and IBS is no laughing matter for veterans. "Irritable bowel syndrome is a disorder that really compromises the daily lives of veterans," Dr. Schoenfeld says.

Schoenfeld further notes that while it is difficult to put a value on what disorders need more research dollars, IBS is not one that should be dismissed as having a negligible impact on veterans’ lives.

Learn more about the Institute of Medicine and the National Academy of Sciences’ study on CMI illnesses here: http://www.nap.edu/catalog.php?record_id=13539

Read more on the issue of PTSD and IBS here: http://www.npr.org/blogs/itsallpolitics/2014/01/16/263087761/doctors-say-reid-request-for-bowel-research-money-no-joke

Breach of Honor by National Guard General

A recent report that a one-star general and former commander of the Michigan Air National Guard scammed nearly $200,000 represents a stain on the reputation of military officers in positions of power.

Brigadier General Richard G. Elliot, Michigan’s former Air adjutant general, is reported by the inspector general (IG) to have used his public office for private gain. Once a federal military technician, Elliot received a federal paycheck. However, in December 2005 he was appointed to serve as the Air adjutant general and commander of the Michigan Air National Guard, making him a full-time employee of the state.

In an effort to quality for retirement benefits, Elliot failed to terminate his federal position as required by law and instead continued to approve his own time and attendance records. As a result, he received more than $194,000, the IG found. The IG further found nearly $20,000 of unwarranted temporary duty travel money.

Perhaps more unfortunate, however, is that we are in 2014: almost ten years from when these abuses of power transpired. Not only did Brig. Gen. Elliot break the law and scam taxpayers, but the investigation to uncover it took nearly five years. Adding more fuel to the flame, Elliot’s boss, Maj. Gen. Thomas Cutler, then Michigan’s adjutant general, knew that Elliot was trying to reach his retirement date and helped Elliot remain on the books as a military technician.

This behavior is symptomatic of the “old boys club” present in the military, and the slow walking of the investigation allowed those implicated to retire without facing charges for what they had done. It should be noted, though, that this lapse of integrity by a few is not representative of the good men and women who serve our country, and our state.

Still, the case does represent a strand of military officers who have a, “boys will be boys” mentality. One way to rout out this thinking is to hasten investigations of such abuses of power and take the possibility of fraud more seriously. There are many who serve as appointed officials with great integrity, and many others who deserve high-level appointments. Cases like this provide an example of how the current system is not working.

Those officials who pull their weight and serve with integrity deserve better. More importantly, the people these officials serve deserve better – not only from those who abuse their power, but those who investigate the abuses.

To read more on the IG’s report and finding, read the Free Press article here: http://www.freep.com/apps/pbcs.dll/article?AID=/201401131511/NEWS06/301130142

“Return Fraud/Return Abuse” Up from Last Year, Costs Retailers Billions

Mark Mandell, Esq.

I write frequently on the penalties and costs involved with committing retail fraud. During harsh economic times, such as now as we emerge from the Great Recession, retail fraud may be a particularly tempting option. However, “return fraud,” a form of retail fraud, may be even more so, especially in the post-holiday season.

Return abuse, sometimes called “friendly fraud,” occurs when a person purchases merchandise without intending to keep it. “Returnaholics” are those who buy and return items excessively either with fraudulent or dishonest intent, or they have an inability to control their shopping habits.

A recent report shows that 5.8% of holiday returns this year were fraudulent, up from 4.6% last year, costing the retail industry $3.39 billion. Return fraud, or return abuse, costs retailers approximately $8.76 billion per year.

Those returnaholics who have fraudulent intent often deceive the retailer into giving a cash refund or credit which is illegal; or, they may not be breaking the law, but abuse retailers’ return policies and buy merchandise with the intent to return it later.

To give a typical example of return fraud, consider the Super Bowl played earlier this month. There have been reports in the past of consumers purchasing big screen TVs specifically for the game, with no intent on keeping their 50-inch flat-screens. Upon the game’s final buzzer, some fraudulent fans don’t pick up the remote again and return their purchase within days.

No matter what form it takes, this practice costs the industry billions per year, and likely contributes to rising prices each year as more and more return fraud is committed. With worsening economic times, the chance of general retail fraud and theft increase, thus compounding the problem for all consumers. The fact is, harsh economic times and increasing prices always increase the chance of theft for retailers, and in the long-run this hurts employees and consumers alike.

Retail fraud is governed by statute - MCL §750.356. MCL §750.356c provides that any person who commits retail fraud in the first degree is punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine. MCL §750.356d provides that any person who commits retail fraud in the second degree is punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine. MCL §750.356d provides that any person who commits retail fraud in the third degree is punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine.

The harsh penalties of retail fraud make having experienced and knowledgeable legal counsel invaluable.  If you have been charged with retail fraud, contact attorney Mark Mandell at (248) 380-0000 or online at www.MichiganFraudLawyer.com. 

Michigan Veterans Not Using Services

Michigan has a significant concentration of resident veterans – around 700,000.  However, in December, it was revealed that Michigan also has the lowest percentage of veterans who utilize benefits and services available to them.

According to a report released by the Michigan Veterans Affairs Agency, only 142,260 veterans use services available to them such as health care and education resources. This number accounts for just 20% of Michigan’s veteran population.

So why aren’t more Michigan veterans taking advantage of these services and opportunities? 

The disparity can be partly attributed to poor information and lack of an organized method for distributing information about these programs.  With no central database for this information, many veterans aren’t even aware of the benefits available to them.  Additionally, the disparity is partly due to a shortage of trained and on-staff service officers necessary to meet the needs of the growing number of veterans leaving the armed forces and taking up residence in Michigan.

In an effort to increase communication and awareness of these available programs, the Veterans Affairs Agency has launched pilot programs in Wayne County and Grand Rapids.  Part of these programs include increasing staff levels to generate demand.

If you are a veteran and have questions about what benefits you are entitled to, contact the experienced professionals at Legal Help For Veterans.  Our team of lawyers and professionals are experts on veteran benefits and can help you get the help you need.  Contact us at 800-693-4800 or online at www.legalhelpforveterans.com.  

Mortgage Fraud: The Scams That Hit You Where You Live

Mark Mandell, Esq.

Mortgage fraud is one of the hardest-hitting scams in the US, and it threatens the dream of homeownership for all too many people. Michigan is among the top states for known or suspected mortgage fraud activity, based on recent law enforcement and industry data.

These scams are especially tricky to combat, as they readily adapt to economic changes and adjustments in lending practices. Mortgage fraud comes in a few forms, primarily: predatory lending, criminal mortgage fraud, and foreclosure rescue scams.

Predatory lending is essentially unfair and deceptive practices on the part of lenders during the loan application process. This can included misleading marketing tactics and incentives for selling risky loans. Recently in Michigan, Countrywide Financial and Ameriquest Mortgage Company settled cases with the state’s Attorney General’s Office worth over $130 million and $13.8 million respectively, providing restitution to consumers.

Criminal mortgage fraud involves the use of artificially inflated appraisals and straw buyers to gain mortgages greater than the property value. The criminals take the extra money from the mortgage and leave the straw buyer out to dry with a mortgage they cannot afford and property worth far less than the mortgage amount.

Lastly, foreclosure rescue scams exploit consumers at times when they are most vulnerable – when they and their families may be forced out of their homes. These “foreclosure rescue companies” take up-front payments to “work with your lender,” and most never deliver on their promise. In Michigan, the Credit Services Protection Act made it illegal, in most cases, to take money up front in exchange for negotiating with your lender. The CSPA is enforced by the Attorney General’s Office, and you can watch out for their consumer alerts on foreclosure scams here: http://www.michigan.gov/ag/0,4534,7-164-17337_20942-215058--,00.html

So how do you avoid mortgage fraud as a consumer? Some steps may require more work at the outset, but they will save you future aggravation and distress from potential fraud. First, seek out referrals for real estate and mortgage professionals when you want to buy or sell a home – and once you are referred, do your homework on them. Also, do your homework on what other homes in the area have sold for.

If it sounds too good to be true, it probably is: Beware of “no money down” loans. These loans are meant to trick people into buying homes they really can’t afford. Therefore, also know your own price range and have an idea going in of what you truly can afford both up front and in the medium and long-run. And finally, don’t let the realtor or mortgage broker force you to make false statements or sign your name to blank documents or documents with empty lines – these are sure signs of potential scams.

For more information on how to protect yourself as a consumer from mortgage fraud, check out the FBI’s website, here: http://www.fbi.gov/news/stories/2008/august/mortgagefraud_081408; and the Michigan AG’s consumer alert website: http://www.michigan.gov/ag/0,4534,7-164-17337_20942-215058--,00.html.

You can read the entire article at:

https://www.michigan.gov/documents/ag/Attorney_Generals_Office_Fights_Predatory_Lending_346680_7.pdf

If you have questions about mortgage fraud or other legal issues, please contact Mark Mandell or Tariq Hafeez at 248.380.0000 or online at www.MichiganFraudLawyer.com.

New Spending Bill Continues to Punish Retirees’ Pockets

A $1.1 trillion omnibus spending bill, passed by the House of Representatives on Wednesday this week, continues to punish the pockets of military retirees. I wrote earlier this month about the budget deal that hurt veterans by eliminating Cost of Living Adjustments (COLA) from their pensions – resulting in thousands of dollars taken out of the pockets of retirees under the age of 62. The current legislation keeps the 1% decrease in COLA, which will be a huge blow to service members and commissioned officers.

According to a recent report, “Enlisted service members could lose a minimum of $72,000 over a 20 year period of their retirement, while commissioned officers could face up to $124,000 in lost compensation.”

With a second chance to put money back in the pockets of those who have served our country, Congress has faltered once again. Eighty-two percent of veterans still face significant losses in their retirement pay, only exempting disabled veterans receiving Chapter 61 benefits. This bill restores benefits for only 17.5% of military retirees, while leaving intact generous benefits for federal civil employees.

This bipartisan deal is disappointing and simply unfair. Federal civil employees are allowed to keep their benefits on the backs of the people who have sacrificed so much for our country – our veterans.

Oklahoma Senator Jim Inhofe’s comments are telling: “The fact that we even have to take efforts to restore these retirement benefits in the first place is troubling,” he said. “This is a benefit these men and women were promised when they joined the services and earned by dedicating their lives to protect our national security.”

Learn more about the spending bill’s impact on military retiree pensions and COLA here:

http://freebeacon.com/vast-majority-of-military-pension-cuts-remain-in-omnibus-spending-bill/

VA Findings Expand Service-Connected Illnesses

The Department of Veterans Affairs (VA) linked five more illnesses to traumatic brain injuries (TBI). The good news for veterans suffering from these illnesses, as well as TBI, is that they will have an easier time getting much-needed additional disability benefits.

The five conditions linked to moderate to severe TBI were: Parkinson’s disease, certain types of dementia, depression, unprovoked seizures, and certain diseases of the hypothalamus and pituitary glands.

Those secondary illnesses will be considered service-connected and won’t require medical opinions to establish whether there is correlation to TBI. However, the findings come with some caveats to receiving benefits.

The severity of a TBI must be “moderate to severe” and three of the five illnesses need to manifest themselves within a certain length of time from the TBI. Dementia must manifest within 15 years of a TBI. For depression, it’s three years (or 12 months for a mild TBI). For hormone deficiencies of the hypothalamus or pituitary glands it’s 12 months.

Still, the VA encourages veterans to file claims even if they don’t meet the severity of TBI or length of time between TBI and the secondary illness.

Read more here: http://www.sentinelsource.com/life_and_style/lifestyles/va-links-five-more-illnesses-to-traumatic-brain-injuries/article_ac7eb8fb-17ea-5ec4-b4dc-608069279501.html#.UtcpDp9BXsk.gmail

For more information on veteran benefits and answers to FAQs, visit www.legalhelpforveterans.com and be sure to check out our e-books as well.