Grandparent Visitation Statute Faces Scrutiny Once Again

by Melissa Cox

Does a grandparent have the right to visitation with their grandchild? This is a common yet difficult inquiry often faced by family law attorneys. Most current state laws are restrictive and ignore the bond between grandparent and grandchild in favor of a parent’s constitutional right to decide what is best for his or her own child. The dispute has played out in courts across the nation for decades and the question is, once again, before the U.S. Supreme Court.

In the 2000 landmark case of Troxel v Granville, the U.S. Supreme Court made a competent parents’ decision the guiding principle in most grandparent right disputes. The heart of the decision is a statement that “fit parents” are presumed to act in their children’s best interests. The state should not, therefore, “inject itself into the private realm of the family” to question the decisions of those parents.

As with any U.S. Supreme Court decision, the Troxel holding had far-reaching repercussions, and many states amended their current laws to meet the constitutional threshold set forth in Troxel. In the 2003 case of Derose v Derose, the Michigan Supreme Court declared its current grandparent visitation law unconstitutional. A new statute was passed in 2005. On June 5, 2007, the Michigan Court of Appeals in the case of Keenan v Dawson held that Michigan’s 2005 grandparent visitation statute is constitutional.

According to the 2005 statute, a court may award visitation--called "grandparenting time"--to a grandparent if any of the following apply: (a) an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court; (b) the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; (c) the child’s parent who is a child of the grandparents is deceased; (d) the child’s parents have never been married, they are not residing in the same household, and paternity has been established; (e) legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or (f) in the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order. However, may is the operative word in the preceding 6 scenarios because if a fit parent opposes the grandparent’s petition, the grandparent must prove the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. This is often an insurmountable task, which, if not accomplished, results in the dismissal of the action.

The U.S. Supreme Court is expected to decide this winter whether it will revisit the issue of grandparents’ rights. Inherent in that decision is the risk that the Troxel holidng could be overturned. Consequently, Michigan’s 6 year-old grandparenting law may also be in jeopardy.

If you are interested in learning more about grandparent rights, divorce, or family law, please call Melissa Cox at 248-380-0000 ext. 240 or email her at mcox@fb-firm.com.


http://yourlife.usatoday.com/parenting-family/story/2011-11-07/States-grandparent-visitation-laws-raise-concern/51104940/1

Forging the Path on Check Fraud: The Basics

Check fraud is a common source of criminal activity in our modern society. In a 2009 study by the American Bankers Association (ABA), the estimated bank losses due to fraudulent check schemes were nearly $1.024 billion in 2008. The ABA also reported that 80% of all banks experienced fraudulent check related losses. Check fraud has many different faces and comes in many different forms, such as: forged checks; the use of stolen checks; writing checks knowing the account has insufficient funds; and the making of false statements to induce the payment by check.

The consequences of check fraud in Michigan vary depending on the circumstances surrounding the fraudulent activity. The amount of the fraudulent check and whether someone has any previous offenses determines the severity of the charges.

Check fraud will fall under one of the following three offenses:

1. When the check is less than $100.00 -
• first offense – misdemeanor punishable by imprisonment for 93 days or less, or a fine not to exceed $500.00,
• offense following one or more prior convictions – misdemeanor punishable by imprisonment for 1 year or less, and/or a fine not to exceed $1,000.00;

2. When the check is $100.00 or more but less than $500.00 -
• first offense or second offense – misdemeanor punishable by imprisonment for 1 year or less, or a fine not to exceed $1,000.00 or 3 times the amount of the check (whichever is greater), or both imprisonment and a fine
• third offense or more – felony punishable by imprisonment for 2 years or less and/or a fine not to exceed $2,000.00;

3. When the check is $500.00 or more -
• felony punishable by imprisonment for 2 years or less, or a fine not to exceed $2,000.00 or three times the amount of the check (whichever is greater), or both imprisonment and a fine.

If you have been charged with check fraud, you need a knowledgeable criminal defense attorney to represent you. For more information, please contact Mark Mandell at 248-380-0000, ext. 241 or Melissa Cox at 248-380-0000, ext. 240 or visit our website at http://www.michiganfraudlawyer.com/

Charged with Retail Fraud? – What You Need to Know

by Melissa Cox

Retail Fraud, or "shoplifting," is a great concern for retailers and law enforcement agencies. According to the National Association for Shoplifting Prevention (NASP), retailers lose more than $35 million dollars of stolen merchandise each day. So, when you read the sign that says, "Shoplifters will be prosecuted to the fullest extent of the law," you can bet on it!

If you have been arrested for retail fraud, the potential consequences vary greatly depending on whether you are charged with a misdemeanor or a felony. This decision is most heavily based on the value of the merchandise(s) involved in the transaction.

In the state of Michigan, there are three types of Retail Fraud:
• First Degree Retail Fraud - Felony. This occurs when the value of the merchandise involved is greater $1000.00, or if the accused has a prior conviction for First or Second Degree Retail Fraud.
o Maximum Penalties: 5 years prison time; $10,000.00 fine or 3 times the value of the merchandise.
• Second Degree Retail Fraud - Misdemeanor. This occurs when the value of the merchandise involved is between $200.00 and $1000.00, or if the accused has a prior conviction for Third Degree Retail Fraud.
o Maximum Penalties: 1 year jail time; $2,000.00 fine or 3 times the value of the merchandise.
• Third Degree Retail Fraud – Misdemeanor. This occurs when the value of the merchandise involved is under $200.00.
o Maximum Penalties: 93 days in jail; $500 fine or 3 times the value of the merchandise.

In addition to these criminal penalties, a person accused of retail fraud may also be subject to civil penalties which include payment of the full retail price of the unrecovered or unsalable merchandise and civil damages of ten times the retail price of the property (not less than $50.00 and not more than $200.00).

Typically, retail fraud consists of a person removing merchandise from a store. However, under Michigan law, other forms of retail fraud exist, such as altering/switching price tags; conspiring with a store employee to steal; and fraudulent return of merchandise.

The consequences are potentially severe for anyone charged with the crime. However, more than 20% of retail fraud is committed by teenagers, and convictions for retail fraud can have serious consequences for a young person’s future employment, college admissions, financial aid options and other financial opportunities. For example, a person with a felony retail fraud conviction cannot receive federally guaranteed student loans.

If you have been charged with retail fraud, you need a knowledgeable criminal defense attorney to represent you. For more information, please contact Mark Mandell at 248-380-0000, ext. 241 or Melissa Cox at 248-380-0000, ext. 240.

Detroit Celebrates Adoption Day

by Melissa Cox

Tuesday, November 23, 2010 will be a day of celebration in the courtroom of Hon. Mary Beth Kelly, Judge of the Third Circuit Court and Justice-Elect of the Michigan Supreme Court. She will preside at an Adoption Day commemoration which is open to the public.

Although adoption finalization hearings are generally private, the participating families and courts will open these hearings to the public, allowing others to witness the final stage of the adoption process. Also in attendance will be Michigan State University Associate Professor John Seita, Michigan Supreme Court Justice Robert Young, Jr., and Department of Human Services Director Ismael Ahmed.

If you would like to know more about adopting in Michigan, please contact Melissa Cox at mcox@fb-firm.com.

You can read more about this event at:
http://www.examiner.com/legal-news-in-detroit/adoption-day-celebrated-detroit

Adopting Online

By Melissa A. Cox

Social Media is the new adoption apparatus for many adoptive parents seeking birth mothers. The traditional use of adoption agencies or adoption facilitators can be costly, ranging from $10,000.00 to $25,000.00, and the wait for a baby can be months or years. The use of online resources to effectuate an independent adoption is cheaper, quicker, and reaches a larger audience.

Adoption experts have long advised that, when looking for an adoptive baby, “the more people who know you are looking, the better”. To help spread the word, prospective parents are utilizing social networking sites like Twitter, MySpace, YouTube and Facebook in the hope that their friends may know of a potential birth mom.

It is also a fact that many birth mothers are teens or young adults. They will often Google advice before they will even think of speaking with an adoption agency. So, of course, the chances of these mothers finding an adoptive parents’ YouTube video or Facebook page are high.

Of course, once an adoptive parent or parents finds their baby, they will need a competent adoption attorney to legalize the adoption. If you have any questions regarding Michigan adoption law, please contact Melissa Cox @ mcox@fb-firm.com.

You can read the CNN article here: http://articles.cnn.com/2009-03-10/tech/adoption.internet.advertise_1_adoptive-parents-adoption-agencies-adoption-experts?_s=PM:TECH

Michigan May be First to Implement Roadside Drug Testing

by Melissa Cox

On September 8, 2010 a bill was introduced to the Legislature that would authorize police to administer a roadside saliva test to check drivers for illegal drug use. The test would be similar, in theory, to the preliminary breath tests used to test for alcohol when an officer stops a driver suspected of being intoxicated.

In Michigan, the presence of any level of an illegal drug is grounds for a charge of operating with the presence of drugs. However, when an officer has probable cause that a driver is on drugs, confirmation often requires a search warrant and hospital-administered blood testing.

http://www.freep.com/article/20100909/NEWS06/9090347/Michigan-may-be-1st-to-adopt-roadside-drug-testing

Grandparenting Rights

Michigan law recognizes that a relationship between a grandparent and a grandchild provides the child with intangible benefits not available in other relationships. Thus, in certain circumstances, grandparents do have rights.

On January 3, 2005, the Grandparenting Time Bill was signed into law, creating new “rights” for grandparents following the Michigan Supreme Court Decision in Derose v Derose, 469 Mich 320; 666 NW2d 636 (2003), which held Michigan’s former grandparent visitation law to be unconstitutional. In Derose, the Michigan Supreme Court asked the Legislature to redraft the Michigan law in order to make it constitutional, allowing grandparents and grandchildren access to one another in limited circumstances. In response, MCL 722.27b was enacted. The law more staunchly protects parental rights as required by the Constitution and Michigan Supreme Court.
Under the law, grandparents may request to see their grandchildren if they have been denied access by the parent in any of the following circumstances:

(a) An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court;
(b) The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
(c) The child’s parent who is a child of the grandparents is deceased;
(d) The child’s parents have never been married, they are not residing in the same household, and paternity has been established;
(e) Legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or
(f) In the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.

The statute, however, creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(b)(4)(b). To rebut the presumption, a grandparent must prove that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court will dismiss the action.

Even if the court finds that a grandparent has met the standard for rebutting the presumption, the court must consider whether it is in the best interests of the child to enter an order for grandparenting time. MCL 722.27b(6).

If you are interested in learning more about grandparent rights, divorce, or family law, please call Melissa Cox at 248-380-0000 ext. 240 or email her at mcox@fb-firm.com.