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The Law Offices of Donald J. Baranski

Dr. Donald J. Baranski

Attorney and Counselor at Law

Over 30 years of General Practice of Law 

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Support Animals in Criminal Court

Support animals are used in criminal courts for children, developmentally disabled and infirm elderly.  In the precedent case of People of the State of Michigan v Dakota Shorter, the Court allowed the  prosecution to have their adult woman victim to have a support dog . The defendant was convicted and sent to prison.  Dr. Baranski appealed the conviction on the basis that an adult woman without any other issues should not have had the  support animal provided to her by the prosecution. The Court held that a support animal should not be supplied to an adult competent witness.  The cases appealed to the Michigan Supreme Court which upheld  the Michigan Court of Appeals. This meant that the defendant's conviction was reversed 

Michigan Court of Appeals

https://www.leagle.com/decision/inmico20180608289

Michigan Supreme Court:

https://www.leagle.com/decision/inmico20181220406



DIVORCE WITH CHILDREN

The following information is provided to advise you with regard to some of the procedures you may

anticipate in such a divorce action with children. While it is not intended to be responsive to specific

questions about your particular case, it may answer some of your concerns, and hopefully, as your case

progresses toward final settlement, it will serve as a reference concerning the procedures and

proceedings. Not all of the information that follows will necessarily be pertinent in your particular case.

The dissolution of a marriage is a traumatic experience. I am aware of the emotional impact experienced

by the litigants, and hope to aid in relieving your anxiety by attempting to assist in solving the legal

problems which confront you.


DIVORCE IN GENERAL


In Michigan, all divorces are “no fault’ divorces. The words, “no fault” may however be misleading. If

the parties reach a settlement on all of the issues and a judgment is entered based upon that

settlement, fault is not a factor. If however, there are disputes as to settlement of the issues, fault may

become a factor in resolving them. “Fault” may be triggered when one of the parties has misused funds

of the marital estate.


MEDIATION:


        If the parties cannot settle all of the issues and agree upon a final settlement, the Court may refer the

  case to mediation, or the parties may agree to have the case mediated, in an attempt to resolve the

     issues. Mediation is a process where the Court appoints an attorney to mediate the unresolved issues.

    Each party submits a written summary of the issues to the mediator together with a brief setting forth

    process of mediation causes attorney; fees and costs to increase, as research, information and

    sometimes testimony from experts (such as pension evaluators), and briefs are necessary. In most

    cases, if the parties proceed to mediation in good faith, this process results in settlement of the issues,

   usually on a more amicable basis and that a trial is not necessary.


SETTLEMENT/TRIAL


If the case cannot be settled at mediation, the Court will schedule a trial date. At trial, testimony and

evidence are entered into evidence with regard to unsettled issues and the final disposition is left to the

discretion of the Judge.


After a statutory waiting period, 60 days without children and 6 months with children, if the parties have

reached an agreement concerning all of the issues, and a Judgment of Divorce is prepared that both

parties approve, the matter can be finalized. A hearing will be scheduled where the Plaintiff will take

the witness stand and testify to the truth in the original divorce complaint. The Plaintiff needs to testify

that they were a resident of the county at least 10 days before the divorce was filed and at least 180

days in the State of Michigan. Also, whether the wife is pregnant and that the objects of matrimony

have broken down.


ALIMONY:


The Court has 11 factors to consider in determining alimony.

1. The past relations and conduct of the parties.

2. The length olf the marriage

3. The ability of the parties to work.

4. The source of and amount of property awarded to the parties.

5. The age of the parties.

6. The ability of the parties to pay alimony.

7. The present situation of the parties.

8. The needs of the parties.

9. The health of the parties.

10. The prior standard of living of the parties, and whether either is responsible for the support

of others.


MINOR CHILDREN:


Custody: When the dispute is between the parents, the best interests of the child shall control. The

“Best Interests of the Child” is determined by; 11 factors set forth in the Child Custody Act provided in

the Michigan Statutes:

MCL 722.23 “Best interests of the child’ means the sum total of the following factors to be

considered, evaluated and determined by the court.

(a) The love, affection and other emotional ties existing between the parties involved

and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection,

and guidance and continuation of the educating and raising of the child in its

religion or creed, if any.

(c) 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.

(d) The length of time the child has lived in a stable, satisfactory environment and the

desirability of maintaining continuity.

(e) The permanence as a family unit, the existing proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of

sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close

and continuing parent-child relationship between the other parent.

(k) Any domestic violence witnessed by the minor child.

(l) Any other factor considered by the court to be relevant to a particular child custody

dispute.

There are two types of custody, physical custody and legal custody. Physical custody is where the minor

child or children actually reside. Legal custody give a parent the right to sign report cards, take the child

to the physician or dentist, and to obtain school records. It also enables the parent to make decisions

such as should the child get braces for their teeth, or have an operation, or go to summer camp.


CHILD SUPPORT:


Michigan has a Child Support Formula which was amended on October 1, 2008. This formula counts the

number of overnights that each parent has and takes this into account when setting the amount of child

support.


PROPERTY SETTLEMENT:


The Court has wide discretion in dividing property of a marital estate in a divorce proceeding. The Court

may consider fault in the division of marital property. For example, a person may be found to be at

fault when the Court finds through testimony and evidence presented at trial that he or she expended

marital funds for purposes that did not benefit the marriage such as gifts and/or living expenses for an

unrelated third person; for gambling; for excessive use of alcoholic beverages, illegal drugs and so forth.

The factors that the Court must consider in dividing property are:

1. The source of the property.

2. Contribution toward its acquisition.

3. The number of years of the marriage.

4. The needs of the parties.

5. The needs of the children

6. The earning power of the parties

7. The cause of the divorce.

A property settlement agreement whether it is in writing and signed by the parties and their

representatives or is placed on the record in open court in the presence of counsel, is binding on the

parties. It cannot be set aside or modified at the request of one party absent a showing of fraud, duress,

or mutual mistake. In other words, if after a Judgment of Divorce is entered, additional marital assets

are discovered, and if it can be proven that information concerning those assets was requested and

intentionally withheld, or if either party intentionally submitted falsified information, ‘fraud” could be

alleged and the case could be reopened for the Court ‘s further determination concerning the newly

discovered assets. If you and your spouse reach an agreement as to the distribution of the marital

assets, the Court will not interfere regardless of the percentage of the distribution.


PROCEDURES:


DISCOVERY:


If a spouse is unaware of all the assets and income in a marriage, discovery procedures are necessary.
Discovery is the process of obtaining information for use as evidence.
Interrogatories and Request to Produce Documents
Interrogatories are specific questions presented in written form to the opposite party, who must provide
sworn answers within a specific period of time. The request or subpoena for production of documents,
requires the other party to provide copies of financial records, such as bank statements, tax returns, etc.
In addition to the attorney fees and services incurred in preparing these documents , there are usually
costs incurred for having these documents served upon the appropriate party.


Depositions:


A deposition is the taking of testimony from a party usually in their own attorney’s office under oath by

a court reporter. Depositions can be taken of either or both parties; their accountants, bankers,

financial advisors and any other person who may have information with regard to the marital assets.


Conclusion:


This is just an overview of basic ideas and concepts involved in a divorce case. I want to personally deal

with any question you may have. I realize that issues arise at times not during regular business hours.

Family Adoption

Definition of Relative


Relative Adoptions are the most preferred type of adoption, because the child/children get to stay with their biological family. It's important to keep contact with the bio family - knowing where you come from, your family's values, morals, and traditions, your medical history - it all shapes who you are as a person.

Relative - A person related to the adoptee within the fifth degree by marriage, blood or adoption. They include: Parent, step-parent, grandparent, step-grandparent, brother, step-brother, sister, step-sister, uncle, step-uncle, aunt, step-aunt, first cousin, step-first cousin, great-aunt, stepgreat

aunt, great-uncle, step-great uncle, great-grandparent, step-great grandparent, first cousin once removed, step-first cousin once removed, great-great-grandparent, step-great great-grandparent, great-great-uncle, step-great-great-uncle, great-great-aunt, step-great-great-aunt, great-great-great-grandparent, or step-great-great-great-grandparent.


Background Check


The first step for the family adoption is to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind. The State of Michigan police will do a background check. Like the stepparent adoption, the probate court will send an employee to the adopters’ home for an investigation.


Guardianship


If the grandparents already have a guardianship in place, and the parent that refused to voluntarily relinquish their parental rights has not visited or supported their child for the last two years before the filing of the petition of the adoption, their parental rights shall be terminated and the child[ren] will be placed with the grandparents for adoption if it is in the child[ren]’s best interest.


Voluntary Termination of Parental Rights


The biological parents are notified and requested to sign off their parental rights. If the biological parents are not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.

Often, the parents have been ordered to pay child support and is behind in payments. IF all the back child support is owed to the a family member with custody, or to a custodial parent, and not to the State, the family member or custodial parent may forgive or waive those amounts, if the biological parents will voluntarily release their parental rights.


Involuntary Termination of Parental Rights


It needs to be determined if the father is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.


Refusal of Non-Custodial Parents to Voluntary Terminate Parental Rights


If the non-custodial parents objects to the family adoption, a separate lawsuit must be filed with the probate court, alleging, neglect. The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly. For example, a petition for adoption is filed on August 15, 2018. The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 to see what visits and monies were paid during that two year period. Often, the custodial family member will contact the non –custodial parents BEFORE filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.


Contestation


If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.


Guardian Ad Litem


If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren]. This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL]. Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.


Trial


The family member, non-custodial parents, and the GAL will go before the judge in the probate court for a trial. The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.


Standard to Terminate Parental Rights


The standard for the Court is clear and convincing evidence. If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights. The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.


Appeal


After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals. Again, the non-custodial parent will have a court appointed attorney to do the appeal.


Formal Placement


The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.


Waiting Period


There is a 6 month to 18 month waiting period for an adoption. Often, the family member has been living with the child[ren] for years so there is no need to see if there will be a “fit” for a long period of evaluation. Typically, a request for an immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued. 

Child Custody

CHILD CUSTODY:


SOLE CUSTODY: There is no legal definition for sole custody. For the purpose of the Michigan Custody Guideline, sole custody occurs when primary physical custody and legal custody are given to one parent.


Physical custody is when a parent provides most of the day to day care for the child. Legal custody is when a parent has the responsibility of making all major decisions regarding the child’s upbringing (such as medical treatment, school enrollment, religious instruction, and participation in extracurricular activities).

If the judge believes the parents cannot work together for the benefit of their child, sole custody is usually awarded to one parent. The other parent may be given parenting time, as determined by the court. If parenting time is ordered, the non-custodial parent is responsible for making routine and emergency decisions for the child during parenting time.


JOINT CUSTODY: At the request of either parent, the court must consider ordering joint custody. If the parents agree on joint custody, the court must order it unless the court determines that joint custody is not in the best interests of the child. When deciding, judges must state on the record their reasons for granting or denying the request. Judges may consider joint custody without a parent’s request. In addition to the normal factors considered when deciding custody, with joint custody judges must also consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.


The statute defines joint custody in a way which provides for joint legal custody, joint physical custody, or a combination of joint legal and joint physical custody.


THE FOLLOWING ARE 2 TYPES OF JOINT CUSTODY:


JOINT LEGAL CUSTODY: Joint legal custody means that the parents share decision-making authority as to the important decisions affecting the welfare of the child. Joint custody does not depend on the amount of time the child is with each parent.

JOINT PHYSICAL CUSTODY: Means that there will be specific times when each parent will have the child with them. However, it does not mean the parents will necessarily share decision-making authority unless the judge also has ordered joint legal custody. As an example of joint physical custody, one parent could have physical custody during the school year, alternate weekends, and alternate holidays, with the other parent having physical custody during the summer months, alternate weekends, and alternate holidays. If the judge awards joint physical custody, the court order will usually include a statement regarding when the child shall reside with each parent. The court order may provide that physical custody be shared by the parents to make sure the child has contact with both parents. During the time a child resides with a parent, that parent decides all routine and emergency matters concerning the child.


CHILD CUSTODY ACT FOR PHYSICAL CUSTODY:


The following are the factors of the Child Custody Act:


(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and the continuation of the education and raising of the child in his or her religion or creed, if any.

(c) 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.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) 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.

(k) Domestic violence, regardless of whether the violence was directed at or witnessed by the child.

(l) Any other factor considered by the court to be of relevance to a particular child custody dispute.


PARENTING TIME:


The law establishes a presumption that it is in the best interests of a child(ren) to have strong relationships with both parents. Therefore, parenting time should be of a frequency, duration and type reasonably calculated to promote a strong relationship between the child(ren) and the parent. The child(ren) has a right to parenting time unless the court determines on the record by clear and convincing evidence that parenting time would endanger the child(ren)’s physical, mental or emotional health (MCL 722.27a).


In order to determine the length, frequency and type of parenting time, the court considers several factors (MCL 722.27a).


1. The existence of any special circumstances or needs of the child.


2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

3. The reasonable likelihood of abuse or neglect of the child during parenting time.


4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.


5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.


6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.


7. Whether the parent has frequently failed to exercise reasonable parenting time.


8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.


9. Any other relevant factors


ISSUES TO ADDRESS IN PARENTING TIME:


In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions (MCL 722.27a (8)). Examples of such terms and conditions include:


1. Division of the responsibility to transport the child(ren).


2. Division of the cost of transporting the child(ren).


3. Restrictions on the presence of third persons during parenting time.


4. Requirements that the child(ren) be ready for parenting time at a specific time.


5. Requirements that the parent arrive for parenting time and return the child(ren) from parenting time at specific times.


6. Requirements that parenting time occur in the presence of a third person or agency.


7. Requirements that a party post a bond to assure compliance with a parenting time order.


8. Requirements of reasonable notice when parenting time will not occur.


9. Any other reasonable condition determined to be appropriate in the particular case.


CHILD SUPPORT FORMULA:


The State of Michigan has adopted a formula on how much the non-custodial parent will pay in child support per month to the custodial parent.

Net Income:


The first step in figuring each parent's support obligation is to determine both parents’ individual incomes. A parent’s "net income" used to calculate support will not be the same as that person’s take home pay, net taxable income, or similar terms that describe income for other purposes. The objective of determining net income is to establish, as accurately as possible, how much money a parent should have available for support. All relevant aspects of a parent’s financial status are open for consideration when determining support, services, or other noncash benefit for which the parent did not pay, if they reduce personal expenses, and have significant value or are received regularly.


Alimony and Spousal Support


(1) Income includes alimony/spousal support paid by someone who is not the other parent in the case under consideration.

(2) Alimony/spousal support paid between the parents in the case under consideration

does not get deducted from its payer’s income.


Potential Income


When a parent is voluntarily unemployed or underemployed, or has an unexercised

ability to earn, income includes the potential income that parent could earn, subject to

that parent’s actual ability.


(1) The amount of potential income imputed should be sufficient to bring that parent’s income up to the level it would have been if the parent had not voluntarily reduced or waived income.


(a) The amount of potential income imputed (1) should not exceed the level it would have been if there was no reduction in income, (2) not be based on more than a 40 hour work week, and (3) not include potential overtime or shift premiums.


Taxes and Deductions:


The Federal, State and Local taxes have to be deducted along with any other mandatory deductions, for example, Union Dues.

The number of dependents for each parent, and the parent’s status, [single, married, head of household] is taken into account.


Calculate Overnights:


Once the child custody is determined, the number of overnights at each household must be determined. Then, based on the net incomes of the mother and father, the child support amount can be determined.


Example: John and Mary have two children, Joe who is 4 years old, and Jane who is 7 years old.

John and Mary have joint legal and joint physical custody. John takes home $20,000 per year. Mary takes home $17,000 per year. Mary will be the head of household with the two children after the divorce, declaring two dependents on her income tax return. John, will be a single man without any dependents after the divorce. Mary has to pay $400 per month for child care. John has the children every other weekend, one half the holidays, and one half of the summer. Mary, has the children most of the time for 275 overnights, and John has the children for 90 overnights.

The child support formula based on the income, number of overnights, and amount of child care would have John paying Mary $325.00 per month in child support, and $196.00 in child care for a total of $550.00 per month payable to Mary by John. Any medical expenses not paid by insurance will be paid 51% by Mary and 49% by John.


If we use the same facts, except change the number of overnights, the difference is substantial.

If Mary has 183 overnights, and John has 182 overnights, John pays Mary $13.00 per month in child support and $196 a month in child care for a total of $153.00 per month. 

Step Parent Adoption

A parent has a child or children with someone not their spouse. The spouse of the parent is not the biological parent of the child or children. A step parent adoption means that the parties are legally married. The non- parent spouse wants to adopt their spouse’s child or children.

Unlike the Direct Placement Adoption, in a step parent adoption, one person is already the parent of the child or children. The biggest issue in a step parent adoption is the termination of the parental rights of the other parent.


Background Check


Unlike in a Direct Placement Adoption, the Probate Court will do the background check in a step parent adoption. The State of Michigan police will do a background check. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind. Typically, a court employee will come to the step parent home for an interview, and to obtain all the necessary paperwork. Every 90 days, there is an update on how things are going with the child[ren] and the stepparent.


Voluntary Termination of Parental Rights


The biological parent is notified and requested to sign off their parental rights. If the biological parent is not involved it the child[ren]’s life and not paying or not wanting to pay child support, they will often sign the termination of parental rights.


Often, the other parent is ordered to pay child support and is behind in payments. IF all the back child support is owed to the custodial payment, and not to the State, the custodial parent may forgive or waive those amounts, if the non-custodial parent will voluntarily release their parental rights.


Involuntary Termination of Parental Rights


It needs to be determined if the other parent is on the child’s Birth Certificate. It needs to be determined if a Court order of paternity has been entered. It needs to be determined if a Judgment of Divorce exists.


If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:


(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.

(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.


It is required to have TWO years of non- support and TWO years of non-contact to be able to terminate the parental rights of the non-custodial parent against their will.


Refusal of Non-Custodial Parent to Voluntary Terminate Parental Rights


If the non-custodial parent objects to the step-parent adoption, a separate lawsuit must be filed with the probate court, alleging, neglect. The key point is whether or not the non-custodial parent from the DATE OF THE PETITION FOR ADOPTION FILED, back two years has paid child support and seen the child regularly. For example, a petition for adoption is filed on August 15, 2018. The Court looks back to August 15, 2016. Then, from August 15, 2016 to August 15, 2018 tosee what visits and monies were paid during that two year period. Often, the custodial parent will contact the non –custodial parent BEFORE filing of the petition for adoption for agreement on the termination of the parental rights. The non-custodial parent suddenly decides to visit and pay some monies toward the child support. This will defeat the efforts to involuntarily terminate the parental rights of the non-custodial parent.


Contestation


If the non-custodial parent objects to the termination of their parental rights, the probate court will appoint an attorney to represent them in the proceedings. Being a parent is a U.S. Constitutional right, and therefore, quasi-criminal in nature, so a person is entitled to an attorney. A trial will be held before the Judge to determine whether there is enough evidence to terminate the parental rights of the non-custodial parent.


Guardian Ad Litem


If there is a contest on the termination of the parental rights of the non-custodial parent, the probate court will appoint an attorney to represent the child[ren]. This person is usually an attorney at law, and they are called the Guardian Ad Litem [GAL]. Although the probate court has appointed this person, the adopting couple is responsible for paying the attorney fees. The GAL will represent the child[ren]’s interest at the trial.


Trial


The stepparent, custodial parent, non-custodial parent, and the GAL will go before the judge in the probate court for a trial. The issue is whether or not the non-custodial parent did not pay support or have contact with the minor child[ren], in the last two years.


Standard to Terminate Parental Rights


The standard for the Court is clear and convincing evidence. If both these requirements are proven, then the Court must determine if it is in the minor’s best interest to terminate the parental rights. The burden of proof is upon the Petitioner. The Court must find by clear and convincing evidence that the non-custodial parent had the ability to support his/her child[ren] and failed to demonstrate good cause as to why he/she did not do so.


Appeal


After the probate court makes its’ ruling, the parties have 21 days to take the case to the Court of Appeals. Again, the non-custodial parent will have a court appointed attorney to do the appeal.


Formal Placement


The judge takes the consent of the non-custodial parent and makes an Order of Formal Placement to the stepparent and custodial parent.


Waiting Period


There is a 6 month to 18 month waiting period for a step parent adoption. Often, the stepparent has been living with the child[ren] for years so there is no need to see if there will be a “fit” for a long period of evaluation. Typically, a request for an immediate confirmation of the adoption is made at the time of the filing of the adoption petition. A new birth certificate is issued. 

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Grandparenting Time


GRANDPARENTING TIME:


Michigan grandparents can ask a court to award them grandparenting time if one or more of the following situations apply:


• The grandchild's parents have filed for divorce, "separate maintenance" (legal separation), or annulment in a Michigan court

• The grandchild's parents are divorced, legally separated under a judgment of separate maintenance (a court has issued an order granting the parents a legal separation), or their marriage has been annulled

• The grandchild's parent, who is a child of the grandparents, has died

• The grandchild's paternity has been established, and the grandchild's parents have never married or are not living together in the same household

• Except where Michigan law says otherwise, if someone other than the child’s parent has “legal custody” (the right to make major decisions about things like education, culture, and religion), or if the grandchild has been removed from the parent’s home

• The grandparent provided an established custodial environment for the child for at least one year before making the request for visitation, regardless of whether the grandparent had court-ordered custody.


There are two possible options.


In the first option, you'll file a motion with the court asking that a judge grant your request for grandparenting time. It's very important that you file your motion in the correct place. You must file the motion in circuit court in the county where the court has "continuing jurisdiction" (meaning, the ongoing power to make decisions) over the dispute. The court that has continuing jurisdiction is not necessarily located in the place where your grandchild lives. If you have any questions about where to file, you should contact an experienced family law attorney.


In the second option, you can file either a “complaint” (legal paperwork that starts a lawsuit) or a motion in the circuit court in the county where your grandchild lives. The complaint or motion must include an “affidavit” (written declaration) that sets out all the facts that support your request. You'll also have to notify everyone who has legal custody or parenting time about your complaint or motion.


In either scenario, expect that the other parties will file a counter affidavit with the court, explaining why they won't agree to your request. Anyone can request a hearing, but if no one does, the judge will likely schedule one anyway. The judge will want to hear everyone out before making a decision.


There are two major hurdles you'll have to clear before a judge will award you grandparenting time.

In the state of Michigan, there is a presumption (a legal assumption) that a fit parent's decision to deny grandparenting time doesn't create a substantial risk of harm to the child's mental, physical, or emotional health.


You'll have to overcome the presumption by a “preponderance of the evidence” (proof that it is more likely than not) that your grandchildren will suffer mental, physical, or emotional harm if they don't spend time with you. The judge will not move on to the second phase unless you can show potential harm to the children.


If the judge finds you've overcome the presumption, the question becomes whether it is in your grandchild's best interests to spend time with you. The court must consider all of the following ten factors:


• The love, affection, and other emotional ties existing between the grandparent and the child

• The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent

• The grandparent's moral fitness

• The grandparent's mental and physical health

• The child's reasonable preference, if the court considers the child to be old enough to express a preference

• The effect on the child of hostility between the grandparent and the parent of the child

• The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child

• Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent

• Whether the parent's decision to deny or decline to offer grandparenting time is related to the child's well-being or is for some other unrelated reason, and

• Any other factor relevant to the physical and psychological well-being of the child.


If the judge decides that it's in your grandchild's best interest to spend time with you, then the court will issue an order allowing you to spend a reasonable amount of time with your grandchild. The amount of time and the circumstances of the visits will depend on the particular facts of your case.

Newborn Adoption​


DIRECT PLACEMENT ADOPTION


Typically, a direct placement adoption is for a new baby.


Who May Adopt


Any potential adoptive parent may adopt and cannot be discriminated against solely on age, race, religious affiliation or income level. A single adoptive parent cannot be discriminated against due to marital status alone. There must be some other factor for an unsatisfactory assessment than marital status.


Who May Place Child for Adoption


Any person who is the legal parent may sign their parental rights away, IF there is someone to take their place. For example, a parent may not want to pay child support any more, and desire to sign off their parental rights. However, only if someone else picks up the tab, so to speak, they cannot sign off their parental rights.

Minor Birthparent


If a birthparent is a minor (under 18 years old at the time of birth), a parent of the birthparent must sign for her and/or him in the adoption proceedings. If there are no parents involved, the probate court will appoint a Guardian Ad Litem to investigate.


Relatives of Birthparents


The relatives of the birthparents have no rights UNLESS they are the parents of an unemancipated minor birthparent. The baby’s grandmother or grandfather could block the adoption of the minor birthparent.


Background Check


The first step for the adopting person, or couple to have home study done. This evaluation will report the family background of the adopters, length of marriage (if married) income level, criminal background check, social history, age, and occupation, and types of child rearing the adopter(s) have in mind. The State of Michigan police will do a background check. The adopters may have as many home study reports done as they desire, so long as the birthparents have the opportunity to review all of them. The home study is good for one year. If an adoption is not filed within one year, an update must be made.


Finding a Birthparent


Adoptive parents search for leads for birthparents through word of mouth, their religious organizations, by advertising in newspapers, online, and with certified adoptive attorneys. Often, a certified adoption attorney representing a birthparent, will contact another certified adoption attorney who has adoptive couples he/she is representing. When a birth parent is looking at a certified adoption attorney’s files, all of the home studies of all the clients must be shown to the birthparent.

The birthparents review the adoptive couple (person) home study or preplacement assessment to see if she is interested in them or has narrowed it down to 3 to 5 couples. It is common for the birthparent to interview prospective adoptive couples in an open adoption.


Closed Adoption


The closed adoption is the most familiar to people where the identities of all parties is confidential and none of the parties know the other’s names or other identifying information. All information required by the court is kept confidential in the adoption file. For example, genetic/health history of the birthparents is required for the baby’s health in the future without the names of the birthparents.


Open Adoption


The open adoption is where the adoptive parents and the birthparents know each other’s identity and all the parties meet at the hospital at the time of the birth. The open adoptions can involve the adoptive parent taking the birthmother to her prenatal medical appointments, telephone calls between them, and even having the adoptive mother in the delivery room at the time of the birth. Additionally, after the birth, letters and photographs of the baby may be exchanged.


Temporary Placement


A temporary placement is done before approval by the court. Placement must be with a Michigan resident.

Requirements:


A. Prospective Adoptive parents are Michigan residents;

B. Assisted by a facilitator (adoption agency or certified adoption attorney)

C. Documents evidencing transfer:

i. By parent, guardian, certified adoption attorney


AND


ii. Prospective Adoptive Parent


The Temporary Transfer of physical custody means that the birthmother is placing the baby with the adoptive couple (person) on the express condition that if she changes her mind before the court hearing, that the adoptive couple (person) must return the baby within 24 hours of being notified. Therefore, the adoptive couple must understand and agree, that the temporary transfer is temporary, temporary.


Filing Adoption


The Certified Adoption Attorney for the adoptive couple (person) files a petition for adoption and evidence of the physical transfer with the probate court in the county in which the adoptive couple (person) lives.


Indian Child Welfare Act


In the event the birthparents are members of a Native American tribe or eligible to become members of a tribe, that tribe must be contacted to see if they have any interest in a tribal member adopting the child.


Multiple Representation-Prohibited


Certified adoption attorneys by professional ethics and by State law cannot represent both the birthparents and the adoptive couple.


Regulations


A. The Michigan Department of Social Services, [DSS] is mandated to prepare a pamphlet on rights and responsibilities for everyone and all parties must have a copy.


B. All Attorney fees and expenses must be itemized and reported to the court.


What may be paid and What must be paid by Adopting person(s)


Expenses of the Birthmother


A. Adoptive couple MAY pay the following expenses:

1. Travel

2. Rent

3. Utilities

4. Medical

5. Clothing

6. Food

B. Adoptive couple SHALL pay the following expenses:

1. All attorney fees for the adoptive couple AND birthparents

2. Adoption counseling for the birthparents

C. All of the expenses may be paid during the pregnancy and up to six weeks after the birth of the child. If all of the expenses are paid and the birthparent(s) change their mind on the adoption there is NO REFUND. This was expressly discussed and enacted by the Michigan Legislature. The reason all of the risk is borne by the adoptive couple (person) was the fear that if a birthmother changed her mind and decided to keep the baby, there would be tremendous financial pressure on her to consent to the adoption to avoid having to repay all of the expenses. The only exception would be if the birthmother was attempting a fraud by going to two families for adoption at the same time.


Birthparent Counseling


Birthparents upon request must be provided with counseling. The counseling that the birthparents receive is NOT confidential. The information revealed to the psychologist/counselor may be revealed to the adoptive couple. For example, if the birthparent is having second thought on the adoption may be revealed by the therapist to the adoptive couple or their attorney.


Consent


The birth parents’ Certified Adoption Attorney along with the birthparents go to the Probate Court to sign the legal consent to the termination of their parental rights.


Birthparents’ Parental Rights are Terminated


The birthparents either have to appear personally in court and sign off their parental rights or a petition to involuntarily terminate their parental rights must be filed. The birthparents have 21 days from the time that they signed off or had their parental rights terminated to file an appeal for cause. It does NOT mean that the birthparent can simply change their mind. It does mean that if the birthparent was under the influence of drugs, or alcohol, duress, fraud or mistake, etc., that the case could be re-opened. Once the 21 day period has lapsed the baby is legally placed with the court. To avoid any problems of the birthparents revoking their consent, a Certified Adoption Attorney is always provided to the birthparents so that they are fully advised by counsel of their actions and that there are no reasons for cause.


Formal Placement


The judge takes the consent of the birthparents and makes an Order of Formal Placement to the adoptive couple (person).


Waiting Period


There is a 6 month to 18 month waiting period for an adoptive couple (person) to be evaluated and then the court hearing with the certified adoption attorney to finalize the adoption by the probate court judge and a new birth certificate is issued.

Every 90 days, there has to be an update on the Home study and submitted to the court.


Adoption is Finalized


Once the birthparents’ rights are terminated, the adoptive couple requests to become the legal parents of the baby. The probate judge needs an evaluation of this couple ( person) to see if they qualify under the statute to raise the child. The judge may rely upon the Home study or Preplacement assessment in making this decision so long as the previous report is not more than one (1) year old.

Last Will and Estate

What is a Will?


It is a document that directs where the decedent wants his or her probate assets to go. Classic examples of probate assets are personal property like furniture, a vehicle, and real estate held as a “tenant-in-common.”

What are the requirements for a valid Will?

It must be in writing and signed by the decedent in the presence of two witnesses who also sign the Will. If an above requirement is missing, the Will can still be valid if (1) it is dated, signed by the decedent,

and the material portions are in the decedent’s handwriting; (2) or it is proven by clear and convincing evidence that the document or writing was intended to be a Will.


How long is a Will good for?


There is no expiration date for a Will. A Will is valid until it is revoked. However, it is Practices Probate Litigation


What happens if you die without a Will?


If you die without a Will, your probate assets are transferred under Michigan’s default “intestate” laws. Under Michigan’s intestate laws, the assets are distributed to your heirs under a formula that considers whether the decedent was married, had children, had a spouse with children, or had living parents.


Can you cut your spouse and children out of your Will?


Yes. However, whether a person dies with or without a valid Will, the surviving spouse and minor and dependent children of a decedent have certain rights to estate assets which are detailed by Michigan statute.


ESTATE ADMINISTRATION


What is a Personal Representative?


It is the person appointed by the Court who administers the deceased person’s estate. The Personal

Representative is issued “Letters of Authority” by the Court which tells the world that this person has legal authority to manage the decedent’s assets. If the decedent left a Will, it is usually the person nominated in the Will to serve in this role.


What is the Personal Representative’s job?


The Personal Representative legally steps into the shoes of the decedent. The personal representative

needs to “marshal” the assets (collect and protect them), pay expenses (funeral bill, estate administration, medical bills, creditors, taxes, etc.), and then distribute what’s left. If the decedent left

a Will, then the remaining assets will transfer as stated by the Will. If the decedent did not leave a Will, then the remaining assets are distributed according to Michigan’s default “intestate” laws.


When a person dies, how do their creditors get paid?


By the decedent’s Estate or the decedent’s trust if revocable during life. A claim filed against the Estate is submitted to the Personal Representative, and a claim against the Trust is submitted to the trustee. There are specific time limits to when a claim can be asserted against an Estate or Trust, and failure to

do so could result in the creditor’s claim being barred.


Medicaid Estate Recovery


If I receive Medicaid while in a nursing home, can the State of Michigan take my house?

Under federal law, the States are required to seek recovery for Medicaid payments for nursing home services, home and community based services, and related hospital and prescription drug services from the estate of a deceased recipient who was age 55 years or older at the time of the services were received.

Michigan passed a law in 2007 which did not go into effect until May 23, 2011 effective retroactive to July 1, 2010.


Which assets are subject to estate recovery?


The federal law requires, “all real and personal property and other assets included within the individual’s estate, as defined by state law”. Assets held in a revocable trust and assets that pass upon death outside of the probate estate are not subject to estate recovery. Also, Medicaid may not charge interest on the estate recovery claims.


What are the priority of claims?


Michigan gives Medicaid claims lower priority to costs and expenses of administration of the estate, funeral and burial expenses, and statutory allowances.

Are there any times that Medicaid will not try to recover from my estate?


Medicaid will not ask for money if one of the following persons is living:

1. Spouse

2. A child under the age of 21 years of age.

3. A child of any age who is blind or permanently and totally disabled.


Will Medicaid Defer or postpone collecting funds?


4 A survivor who was residing in the home and providing care for a period of at least 2 years immediately before the date of the recipient’s admission to a medical institution, and that care allowed the recipient to live at the home rather than in an institution.

5. A sibling who has an equity interest in the home who was residing in the home for a period of at least 1 year immediately before the recipient’s admission to a medical institution.


If none of the 5 situations apply to me, will Medicaid file a claims against my estate?


Medicaid will determine the estimated costs of recovery versus the estimated amount to be recovered. Also, to determine if there is a recovery if that would cause an undue hardship.


What is an Undue Hardship?


After an undue hardship application is filed, Medicaid may grant a hardship waiver when:


1. The estate property is the primary income-producing asset of the beneficiaries, such as a family business or farm and the income produced by the asset is limited.

2. The estate property is a home of modest value; or

3. Recovery from a recipient’s estate would cause a survivor to become or remain eligible for Medicaid.

An applicant for an undue hardship must also satisfy a Means Test.


What is a Means Test?


The means test is applied to make sure an actual hardship would result if Medicaid recover is made. To pass the means test, an applicant must prove that:


A. Their total household income is less than 200% of the poverty level; and

B. Their total household resources are less than $10,000.


Can the Personal Representative charge a fee for his or her services?


Yes, a “reasonable” fee under Michigan law, unless the Will states otherwise. What is considered

“reasonable” is often a source of litigation, and there is no set figure or range which is recognized as reasonable. Rather, what is reasonable depends on the specific facts and the complexity of

administration. The Personal Representative’s reasonable fee is paid with Estate assets.


Can the Personal Representative retain an attorney to assist with administration?


Yes, under Michigan law, unless the Will states otherwise. Because the duties of a Personal representative are not intuitive and are complex, it is highly recommended that a Personal Representative retain counsel to assist with administrative. The Personal Representative’s reasonable

attorneys’ fees are paid by the Estate.


CONTESTED GIFTS


Can a gift be “undone”?


Yes, with Court involvement. Sometimes a transfer is called a “gift” but was not

actually intended to be a gift, or was the gift or was tricked or lacked mentally capacity

to understand what he or she was gifting.


LACK OF MENTAL CAPACITY CLAIMS


What is the standard for mental capacity to make a will or a trust?


To have sufficient mental capacity to make a will or a trust, an individual must satisfy four requirements. First, the individual must be able to understand that he or she is providing for the disposition of his or her property after his or her death. Second, the individual must be able to know the nature and extent of the property that he or she owns. Third, the individual must be able to know the identity of his or her heirs. Fourth, the individual must be able to generally understand the significance of signing the document.


Does the same mental capacity standard also apply to will or trust amendments or

revocations?


Yes. Just as an individual must possess sufficient mental capacity to make a will or trust, the individual must also possess sufficient mental capacity to execute a document that amends or revokes the will or trust.


When is mental capacity evaluated?


In lack­of­capacity litigation, the Court’s job is determine whether the individual had sufficient mental capacity at the time the estate-planning document was signed. Even if the person lacked mental capacity before and after the signing, if the person had sufficient mental capacity at the precise time it was signed, the estate-planning document will be upheld.


How do you prove lack of mental capacity?


In lack-of-capacity litigation, it will be highly relevant whether the individual who made the will or trust

trust was diagnosed with any mental illness, such as dementia or Alzheimer’s disease; whether the individual was suffering from extreme pain or weakness; whether the individual was taking any medication with the potential to cause side effects; and whether the individual’s medical records

reflect mental impairments. The doctors who treated the individual will be key witnesses, as will be those who had the opportunity to observe the individual’s conduct, statements and thought processes.


The parties to the litigation may retain expert medical witnesses to provide opinions. The opinions of the attorney who drafted the challenged document, as well as persons who witnessed or notarized the document, will also be important.


UNDUE INFLUENCE CLAIMS


What is undue influence?


It is a claim brought to “undo” an estate­planning document, gift, or other transfer of property. To establish undue influence it must be proven that the person was subjected to “threats,

misrepresentation, undue flattery, fraud, or physical or moral coercion”sufficient to “overpower volition, destroy free agency and impel” the person to act “against his inclination and free will.” Because undue influence typically happens behind closed doors, Michigan has established a presumption of undue influence if the evidence establishes: (1) the existence of a confidential or fiduciary relationship between the person transferring the property through the transaction and the fiduciary; (2) the fiduciary benefits from the ransaction; and (3) the fiduciary had an opportunity to influence the person’s decision

in that transaction. If the presumption is satisfied, then the burden shifts to the fiduciary to prove there

was no undue influence. If the fiduciary fails to rebut the presumption, then the interested person challenging the transaction wins and the transaction will be undone.

PERSONAL BANKRUPTCY

Chapter 7 Bankruptcy


Chapter 7 is a liquidation bankruptcy designed to wipe out your general unsecured debts such as credit cards and medical bills. To qualify for Chapter 7 bankruptcy, you must have little or no disposable income. If you make too much money, you may be required to file a Chapter 13 bankruptcy (discussed below).

When you file for Chapter 7 bankruptcy, a trustee is appointed to administer your case. In addition to reviewing your bankruptcy papers and supporting documents, the Chapter 7 trustee’s job is to sell your nonexempt property to pay back your creditors. If you don’t have any nonexempt assets, your creditors receive nothing. As a result, Chapter 7 bankruptcy is typically for low income debtors with little or no assets who want to get rid of their unsecured debts.

(For comprehensive information on Chapter 7, visit our Chapter 7 Bankruptcy topic area.)


Chapter 13 Bankruptcy


Chapter 13 is a reorganization bankruptcy designed for debtors with regular income who can pay back at least a portion of their debts through a repayment plan. If you make too much money to qualify for Chapter 7 bankruptcy, you may have no choice but to file a Chapter 13 case. However, many debtors choose to file for Chapter 13 bankruptcy because it offers many benefits that Chapter 7 bankruptcy does not (such as the ability to catch up on missed mortgage payments or strip wholly unsecured junior liens from your house).


In Chapter 13 bankruptcy, you get to keep all of your property (including nonexempt assets). In exchange, you pay back all or a portion of your debts through a repayment plan (the amount you must pay back depends on your income, expenses, and types of debt). For this reason, Chapter 13 is commonly referred to as a reorganization bankruptcy. Typically, Chapter 13 bankruptcy is for debtors who can afford to make monthly payments to get caught up on missed mortgage or car payments or pay off nondischargeable debts such as alimony or child support arrears.


Differences Between Chapter 7 and Chapter 13 Bankruptcy


Chapter 7 Chapter 13


Type of Bankruptcy Liquidation Reorganization


Who Can File?


Individuals and Business Entities Individuals Only (Including Sole Proprietors)

Eligibility Restrictions Disposable Income Must Be Low Enough to Pass the Chapter 7 Means Test

Cannot Have More Than $383,175 of Unsecured Debt or $1,149,525 of Secured Debt


How Long Does It Take to Receive a Discharge?


Typically Three to Five Months Upon Completion of All Plan Payments (Usually Three to Five Years)


What Happens to Property in Bankruptcy?


Trustee Can Sell All Nonexempt Property to Pay Creditors Debtors Keep All Property But Must Pay Unsecured Creditors an Amount Equal to Value of Nonexempt Assets

Allows Removing Unsecured Junior Liens from Real Property Through Lien Stripping? No Yes (If Requirements Are Satisfied) (Learn about lien stripping.)

Allows Reducing the Principal Loan Balance on Secured Debts Through a Loan Cramdown? No Yes (If Requirements Are Satisfied) (Learn about cramdowns in bankruptcy.)

Benefits Allows Debtors to Quickly Discharge Most Debts and Get a Fresh Start Allows Debtors to Keep Their Property and Catch Up on Missed Mortgage, Car, and Nondischargeable Priority Debt Payments

Drawbacks Trustee Can Sell Nonexempt Property. Does Not Provide a Way to Catch Up on Missed Payments to Avoid Foreclosure or Repossession. Must Make Monthly Payments to the Trustee for Three to Five Years. May Have to Pay Back a Portion of General Unsecured Debts.


Means test[edit]


The most noteworthy change brought by the 2005 BAPCPA amendments occurred within.[4] The amendments effectively subject most debtors who have an income, as calculated by the Code, above the debtor's state census median income to a 60 month disposable income based test. This test is referred to as the "means test". The means test provides for a finding of abuse if the debtor's disposable monthly income is higher than a specified floor amount or portion of their debts. If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances." Debtors whose income is below the state's median income are not subject to the means test. Under this test, any debtor with more than $182.50 in monthly disposable income, under the formula, would face a presumption of abuse.

Notably, the Code calculated income is based on the prior six months and may be higher or lower than the debtor's actual current income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code’s “current monthly income” as “presumed income.” If the debtor's debt is not primarily consumer debt, then the means test is inapplicable. The inapplicability to non-consumer debt allows business debtors to "abuse" credit without repercussion unless the court finds "cause."

"Special circumstances" does not confer judicial discretion; rather, it gives a debtor an opportunity to adjust income by documenting additional expenses or loss of income in situations caused by a medical condition or being called or order to active military service. However, the assumption of abuse is only rebutted where the additional expenses or adjustments for loss of income are significant enough to change the outcome of the means test. Otherwise, abuse is still presumed despite the "special circumstances."


Credit counseling


Another major change to the law enacted by BAPCPA deals with eligibility. §109(h) provides that a debtor will no longer be eligible to file under either chapter 7 or chapter 13 unless within 180 days prior to filing the debtor received an “individual or group briefing” from a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator[3]

The new legislation also requires that all individual debtors in either chapter 7 or chapter 13 complete an “instructional course concerning personal financial management.” If a chapter 7 debtor does not complete the course, this constitutes grounds for denial of discharge pursuant to new §727(a)(11).[4] The financial management program is experimental and the effectiveness of the program is to be studied for 18 months. Theoretically, if the educational courses prove to be ineffective, the requirement may disappear.


Applicability of exemptions


BAPCPA attempted to eliminate the perceived “forum shopping” by changing the rules on claiming exemptions. Under BAPCPA, a debtor who has moved from one state to another within two years of filing (730 days) the bankruptcy case must use exemptions from the place of the debtor’s domicile for the majority of the 180 day time period preceding the two years (730 days) before the filing §522(b)(3).[5] If the new residency requirement would render the debtor ineligible for any exemption, then the debtor can choose the federal exemptions.

BAPCPA also “capped” the amount of a homestead exemption that a debtor can claim in bankruptcy, despite state exemption statutes. Also, there is a “cap” placed upon the homestead exemption in situations where the debtor, within 1215 days (about 3 years and 4 months) preceding the bankruptcy case added value to a homestead. The provision provides that “any value in excess of $125,000” added to a homestead can not be exempted. The only exception is if the value was transferred from another homestead within the same state or if the homestead is the principal residence of a family farmer (§522(p)).[5] This “cap” would apply in situations where a debtor has purchased a new homestead in a different state, or where the debtor has increased the value to his/her homestead (presumably through a remodeling or addition).

Lien avoidance

Some types of liens may be avoided through a chapter 7 bankruptcy case. However, BAPCPA limited the ability of debtors to avoid liens through bankruptcy. The definition of “household goods” was changed limiting “electronic equipment” to one radio, one television, one VCR, and one personal computer with related equipment. The definition now excludes works of art not created by the debtor or a relative of the debtor, jewelry worth more than $500 (except wedding rings), and motor vehicles (§522(f)(1)(B)) Prior to BAPCPA, the definition of household goods was broader so that more items could have been included, including more than one television, VCR, radio, etc.


Other changes:


• Decreased the number and type of debts that could be discharged in bankruptcy. Decreased limits for discharge of debts incurred discharging luxury goods. Expanded the scope of student loans not dischargeable without undue hardship.

• Increase the time in which a debtor may have multiple discharges from 6 to 8 years.

• Limited the duration of the automatic stay, particularly for debtors who had filed within one year of a previous bankruptcy. Automatic stay may be extended at the discretion of the court.

• BAPCPA limited the applicability of the automatic stay in eviction proceedings. If the landlord has already obtained a judgment of possession prior to the bankruptcy case being filed, a Debtor must deposit an escrow for rent with the Bankruptcy Court, and the stay may be lifted if the Debtor does not pay the Landlord in full within 30 days thereafter, §362(b)(22).[6] The stay also would not apply in a situation where the eviction is based on “endangerment” of the rented property or “illegal use of controlled substances” on the property, §362(b)(23).[6]

• BAPCPA enacts a provision that protects creditors from monetary penalties for violating the stay if the debtor did not give “effective” notice pursuant to [§342(g)].[7] The new notice provisions require the debtor to give notice of the bankruptcy to the creditor at an “address filed by the creditor with the court,” or “at an address stated in two communications from the creditor to the debtor within 90 days of the filing of the bankruptcy case.[citation needed


WHAT IF I AM SUED NOW, OR WHILE PROCESSING THE BANKRUPTCY?


The creditors will serve you with legal papers, a summons and complaint. From the time the person hands you those papers, you have 21 days to file an Answer, or respond to the lawsuit. If you do not respond within those 21 days, the creditor, may receive a default judgment. Basically, you have forfeited. The creditor must wait an additional 21 days after the judgment to try to collect the judgment amount. The additional 21 days is to allow you to file a Motion to Set Aside the Default, or to otherwise contest or appeal the judgment. That is a total of 42 days, minimum before any collection activity can take place against you.

At the end of the 42 days, the creditor may try to garnish your paycheck, or garnish your bank account.


INCOME EXEMPT FROM GARNISHMENT:


a. Individual Retirement Account IRA

b. Social Security Benefits

c. Supplemental Security Income Benefits, SSI

d. Aid to Families with Dependent Children

e. General Assistance Benefits GA

f. Unemployment Compensation Benefits

g. Veterans Assistance Benefits

h. Worker’s Compensation Benefits

i. The first $500.00 on deposit in a savings and loan SAVINGS account, such as LAFCU.

j. Cash value or proceeds of life insurance or annuity, payable to the spouse or children of the insured.

k. Income benefits under the Michigan Civil Service Act


DEBTS YOU CANNOT GET RID OF:


a. Debts for most taxes.

b. Debts incurred to pay non-dischargeable taxes. For example, used your credit card to pay the IRS, cannot discharge that credit card debt.

c. Debts for domestic support obligations. This would include child support, alimony and court ordered payments in a divorce case.

d. Debts for most student loans.

e. Debts for most fines, penalties, forfeitures, or criminal restitution obligations. For example, convicted of arson for burning down a house, you cannot discharge that debt in bankruptcy.

f. Debts for personal injuries or death caused by a debtor’s operation of a motor vehicle, vessel, or aircraft while intoxicated. Basically, any debt with drunk driving anything is not going to be discharged in bankruptcy.

g. Debts not properly listed by the debtor.

h. Debts that the bankruptcy court specifically has decided or will decide in this bankruptcy case are not discharged.

i. Debts for which the debtor has given up the discharge protections by signing a reaffirmation agreement in compliance with the Bankruptcy Code requirements for reaffirmation of debts; and

Debts owed to certain pension, profit sharing, stock bonus, other retirement plans, or to the Thrift Savings Plan for federal employees for certain types of loans from these plans.

MORTGAGES AND LIENS

LIENS ON PERSONAL PROPERTY:


Under Article 9, a security interest is created by a security agreement, under which the debtor grants a security interest in the debtor's property as collateral for a loan or other obligation.

A security interest grants the holder a right to take a remedial action with respect to the property, upon occurrence of certain events, such as the non-payment of a loan. The creditor may take possession of such property in satisfaction of the underlying obligation. The holder will sell such property at a public auction or through a private sale, and apply the proceeds to satisfy the underlying obligation. If the proceeds exceed the amount of the underlying obligation, the debtor is entitled to the excess. If the proceeds fall short, the holder of the security interest is entitled to a deficiency judgment whereby the holder can institute additional legal proceedings to recover the full amount unless it is a non-recourse debt like many mortgage loans in the United States.

In the U.S. the term "security interest" is often used interchangeably with "lien". However, the term "lien" is more often associated with the collateral of real property than with of personal property.

A security interest is typically granted by a "security agreement". The security interest is established with respect to the property, if the debtor has an ownership interest in the property and the holder of the security interest conferred value to the debtor, such as giving a loan.

The holder may "perfect" the security interest to put third parties on notice thereof. Perfection is typically achieved by filing a financing statement with government, often the secretary of state located at a jurisdiction where a corporate debtor is incorporated. Perfection can also be obtained by possession of the collateral, if the collateral is tangible property.

Absent perfection, the holder of the security interest may have difficulty enforcing his rights in the collateral with regard to third parties, including a trustee in bankruptcy and other creditors who claim a security interest in the same collateral.

If the debtor defaults (and does not file for bankruptcy), the UCC offers the creditor the choice of either suing the debtor in court or conducting a disposition by either public or private sale. UCC dispositions are designed to be held by private parties without any judicial involvement, although the debtor and other secured creditors of the debtor have the right to sue the creditor conducting the disposition if it is not conducted in a "commercially reasonable" fashion to maximize proceeds from the sale of the collateral.

Article 9 is limited in scope to personal property and fixtures (i.e., personal property attached to real property). Security interests in real property continue to be governed by non-uniform laws (in the form of statutory law or case law or both) which vary dramatically from state to state. In a slight majority of states, the deed of trust is the primary instrument for taking a security interest in real property, while the mortgage is used in the remainder.


MORTGAGE ON REAL PROPERTY


A mortgage loan, also referred to as a mortgage, is used by purchasers of real property to raise money to buy the property to be purchased or by existing property owners to raise funds for any purpose. The loan is "secured" on the borrower's property. This means that a legal mechanism is put in place which allows the lender to take possession and sell the secured property ("foreclosure" or "repossession") to pay off the loan in the event that the borrower defaults on the loan or otherwise fails to abide by its terms. The word mortgage is derived from a "law French" term used by English lawyers in the middle ages meaning "death pledge", and refers to the pledge ending (dying) when either the obligation is fulfilled or the property is taken through foreclosure.[1]

Mortgage borrowers can be individuals mortgaging their home or they can be businesses mortgaging commercial property (for example, their own business premises, residential property let to tenants or an investment portfolio). The lender will typically be a financial institution, such as a bank, credit union or building society, depending on the country concerned, and the loan arrangements can be made either directly or indirectly through intermediaries. Features of mortgage loans such as the size of the loan, maturity of the loan, interest rate, method of paying off the loan, and other characteristics can vary considerably. The lender's rights over the secured property take priority over the borrower's other creditors which means that if the borrower becomes bankrupt or insolvent, the other creditors will only be repaid the debts owed to them from a sale of the secured property if the mortgage lender is repaid in full first.

Mortgage lending is the primary mechanism used in many countries to finance private ownership of residential and commercial property (see commercial mortgages). Although the terminology and precise forms will differ from country to country, the basic components tend to be similar:

• Property: the physical residence being financed. The exact form of ownership will vary from country to country, and may restrict the types of lending that are possible.

• Mortgage: the security interest of the lender in the property, which may entail restrictions on the use or disposal of the property. Restrictions may include requirements to purchase home insurance and mortgage insurance, or pay off outstanding debt before selling the property.

• Borrower: the person borrowing who either has or is creating an ownership interest in the property.

• Lender: any lender, but usually a bank or other financial institution. (In some countries, particularly the United States, Lenders may also be investors who own an interest in the mortgage through a mortgage-backed security. In such a situation, the initial lender is known as the mortgage originator, which then packages and sells the loan to investors. The payments from the borrower are thereafter collected by a loan servicer.[3])

• Principal: the original size of the loan, which may or may not include certain other costs; as any principal is repaid, the principal will go down in size.

• Interest: a financial charge for use of the lender's money.

• Foreclosure or repossession: the possibility that the lender has to foreclose, repossess or seize the property under certain circumstances is essential to a mortgage loan; without this aspect, the loan is arguably no different from any other type of loan.

• Completion: legal completion of the mortgage deed, and hence the start of the mortgage.

• Redemption: final repayment of the amount outstanding, which may be a "natural redemption" at the end of the scheduled term or a lump sum redemption, typically when the borrower decides to sell the property. A closed mortgage account is said to be "redeemed".

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MINOR GUARDIANSHIPS

MINOR GUARDIANSHIPS


Minor guardianships are either full or limited. A full guardian has standing to file a custody lawsuit in the family division of the circuit court. A limited guardianship does not have this standing unless the parent has failed to substantially comply with a limited guardianship placement plan. A limited guardian may not consent to marriage, adoption, or a release for adoption.

Alternative to a Guardianship

A guardianship may not be necessary if a parent executes a power of attorney to have someone make decisions for a minor for up to six months.


FULL GUARDIANSHIP


A full guardian may be appointed for a minor if one of the following situations exist:

1. The parental rights of both parents or of the surviving parent have been terminated or suspended by court order, a judgment of divorce or separate maintenance, death, judicial determination of mental incompetence, a disappearance, or confinement in a place of detention.

2. The parent or parents have permitted the minor to reside with another person and have not provided that person with legal authority to care for the minor.

3. All of the following are true: the minor’s biological parents have never been married to one another, the custodial parent dies or is missing and the other parent has not been granted legal custody under court order, and the person whom the petition asks to be appointed guardian is related to the minor within the 5th degree by marriage, blood or adoption.


LIMITED GUARDIANSHIPS


A limited guardianship may only be established when the petitioning parent with custody agrees.

An approved limited guardianship placement plan developed by the parents and the proposed guardian is required. A limited guardian may not consent to the adoption of the minor, to the release of the minor for adoption, or to the marriage of the minor. Otherwise, the duties and liabilities of a full guardian apply to limited guardianships except as modified by the limited guardianship placement plan.

A limited guardian may petition to be appointed to a full guardian, except that the petition shall not be based on suspension of parental rights by the order that appointed that person the limited guardian of that minor. Circumstances allowing such a change of appointment are death, incapacity, or incarceration of a parent.

The limited guardianship placement plan makes reference to frequency of visits, child support, and other conditions that the parents are supposed to comply with. If the parent seeks to end the guardianship, or a petition to terminate parental rights are sought, the parents’ compliance or non compliance with the plan is critical.

A limited guardianship placement plan contains an acknowledgment by the parent that if the parent fails without good cause to follow the plan, parental rights may be terminated. A limited guardian is also held accountable to comply with the plan.


What Does It Mean to be a Guardian?


The guardian of a minor has decision making authority over the minor and the guardian is in a confidential position because he or she is standing in the place of a parent. A guardian, once appointed must file a report within 56 days of appointment on the condition of the minor, and then each year on the anniversary of the appointment, an annual report on the minor.


Child Support


The guardian of a minor is not legally required to support the child with the guardian’s own funds. Support owed on behalf of the minor may be received by the guardian. If payable through the Friend of the Court, copies of the letter of authority are usually sufficient to direct payment to the guardian having physical custody of the minor. A guardian may initiate child support proceedings.


Medical Treatment


The guardian shall authorize medical or other professional care, treatment, or advice.

Consent to Marriage, Adoption, or Release for Adoption

A full guardian may consent to the marriage of a minor ward. The ward must be at least 16 years old. The adoption or the release of a minor ward for adoption may be consented to by a full guardian subject to the restrictions of the Adoption Code.


Contested Proceedings


In minor guardianships, contests are most likely to arise after the guardianship is in place, such as when the parent files a petition to terminate the guardianship.


Initial Guardianship Appointment


A limited guardianship may be established only if the custodial parent(s) consent. The consent of a non-custodial parent is not needed for a limited guardianship. If the non- custodial parent objects to the guardianship or to the terms of the plan, the remedy is to bring a circuit court custody petition. However, the non-custodial parent may object to the guardianship petition on the ground that the proposed guardian is not an appropriate choice. While it is the custodial parent’s right to nominate a guardian, the court has the ultimate say in the appointment based on suitability.


Minor Nominates his/her Own Guardian


If the minor age 14 or older, nominates his/her own guardian, the court must appoint the nominated person unless it finds that the appointment is contrary to the minor’s welfare. Notwithstanding a parent’s testamentary or other written appointment of a guardian for the minor, the minor (age 14 or older) may prevent the appointment by filing an objection before the acceptance or within 28 days after acceptance. The court may appoint the nominated guardian or another suitable guardian.

CRIMINAL LAW

WHAT IS A PRELIMINARY EXAMINATION?


A Preliminary Examination is held where a person is charged with a felony. A felony is any crime which carries a maximum penalty of one (1) year or more in jail. At the Preliminary Examination the Prosecutor must prove two (2) things as probably having occurred: that a crime in fact was actually committed and that the defendant or the person accused of the crime probably had something to do with the crime charged. The Preliminary Examination is designed to make sure that police cannot go out and pick up anyone they want off the street and accuse them of a crime. The Preliminary Examination therefore is to make sure that there has not been an abuse or mistake by the police. If the Prosecuting Attorney’s office can show that a crime has occurred and that the person accused of the crime probably had something to do with it, then the defendant will be bound over to the Circuit court. This means that the defendant will have a trial by a judge or by a jury, it does not mean that the defendant is guilty of anything.


When a person has a trial, the standard of proof is that the Prosecutor must prove beyond a reasonable doubt that the defendant is guilty. At the Preliminary Examination the Prosecutor must only show a preponderance of the evidence or probable cause that the defendant had something to do with it. For example, let us say that a person was at a Meijer store when something was stolen or shoplifted. The security guards and the police would have to show more than the person was a shopper at Meijer at the time of the theft. The store and the police would have to show that the accused person had something to do with the crime or was at least in the same department as the stolen merchandise when it was stolen. If those things were shown then the defendant would simply be sent on to trial in the Circuit Court.


Circuit Court Arraignment


After being bound over, the Circuit court judge will then arraign the defendant. In other words, the first time the defendant was brought to the District court, the judge told him that he was charged with a crime. Also, he would be told the maximum penalty of the crime and that he has a right to an attorney. He is then asked how does he plead; guilty or not guilty. This exact same procedure is done again in circuit Court after a bind over.


CRIMINAL PROCEDURE FOR FELONIES AND MISDEMEANORS


Arrested for a crime with a penalty of over one (1) year.


Arraignment in District Court: The defendant or accused person is brought before the district court judge and told what he/she is accused of and the maximum possible penalty for that crime. The judge will tell the defendant that he will have a preliminary examination within 21 days (including Saturdays and Sundays) as is required by Michigan law. The judge will set bail at that time and another court date. If the defendant does not have and cannot afford an attorney, the judge will appoint an attorney at this time.


Preliminary Examination: The District Court judge must decide whether a felony case should go on to the Circuit Court or not. The District Court judge must find two (2) things:


(1) Whether or not a crime was committed; and

(2) Whether or not there is probable cause to believe that this particular defendant had anything to do with the crime.


If both (1) and (2) are found, then the District Court judge must bind the defendant over to the Circuit Court.


Circuit Court Arraignment: The defendant must be told by the Circuit Court judge what crime he is charged with and the possible maximum penalties for the crime(s). The defendant can plead guilty, not guilty, stand mute, or plead no contest. To stand mute means that the judge will enter a plea of not guilty on behalf of the defendant. If the defendant pleads no contest, it is the same as guilty. The difference is that a no contest plea cannot be used against the defendant in a later criminal proceeding.


If the defendant pleads guilty, he/she will be sentenced in about 30 days by the same judge. If the defendant does not plead guilty then he/she will prepare to go to trial.


Plea of Guilty: In about 95% of the cases, the defense will have worked out a plea agreement by the time of the Circuit Court Arraignment. To plead guilty, the attorneys tell the judge what the plea agreement is (for example, if defendant pleads guilty to attempted Retail Fraud 1st degree – which is a 1 year penalty – the original charge of Retail Fraud 1st degree – a 2 year felony – will be dismissed). The defendant is asked by the judge if that is the agreement, if he knowingly and voluntarily is giving up all his /her rights to go to trial and each right is gone over with him/her. Once this is done, the defendant tells the judge under oath what crime he/she committed to cause him/her to plead guilty.


Bond: At the time of the plea, the judge must decide whether or not to continue the defendant’s bond or bail. Originally, in District Court, the defendant was presumed innocent ad bond was set on the condition that the defendant will show up for all court dates. Now that the defendant has admitted his/her guilt, the judge has an admitted criminal in front of him. Most judges will continue the bond until the next court date. Some judges automatically cancel the bond, remand the defendant to the custody of the sheriff until the next hearing on the basis that until the judge knows about the defendant, he or she will not let the defendant on the streets.


Probation Department: The next step for the judge after accepting the plea of guilty or no contest is to send the defendant to the Circuit court probation department. The probation department will want to know everything about the defendant to determine whether the defendant should go to prison, jail, or be placed on probation. This decision is made by looking at: prior criminal history and what time, if any, previously served, employment history, educational history, family history, family support, defendant’s attitude and likelihood of rehabilitation.


Pre-Trial: At the pre-trial conference, the judge determines how much time the trial will take. Also at this time, the witness lists of who will testify are exchanged. The pre-trial is mainly for the benefit of the judge to know which cases will be heard and which cases will be plea bargained before trial. The Court sends a pre-trial statement in advance for the attorney to fill out. The form includes such things as: how many days to try, defenses of alibi, insanity, or self-defense to be raised by defendant? Are there any things the defense is requesting that they have not been provided with? It is very important to fill this form out in advance.


Trial: There are two types of trials; Bench trial (judge only) or a Jury trial (judge and 12 jurors). A jury has to be picked and it usually takes ½ day to pick a jury and get going in most criminal cases. Therefore, a jury trial is very time consuming. A bench trial could be over in the same amount of time. All 12 jurors must agree as to guilty or not guilty.


Therefore, instead of going to court again and being told all these things which by now you would already know, I send in a form. I will send one of these forms called a Waiver of Arraignment to you when the time comes if there has not been a plea bargain in your case. I will ask you to sign the Waiver of Arraignment form either in court at the District Court level or I will send it to you in the mail and request that you sign and return it in the stamped, self-addressed envelope that I will provide for you. In this way, you avoid having to go to court again.


Preparation for Trial


In order to prepare for a jury trial, the attorney will need the client's assistance. The attorney must know what witnesses the client would like to call on their behalf. It must be determined if the client would  like to know whether the client intends to testify on their own behalf. The attorney will need to know whether the client has been convicted of any felonies in the last 10 years, and if so what they are for.