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Family Law
WMU-Cooley Law School
Aquilina, Rosemarie Elizabeth

FAMILY LAW
ADJUNCT PROFESSOR – HON. ROSEMARIE AQUILINA
SUMMER 2012
–       Family court cases have specific case code #s listed in MCR 8.117(6)
o   Some examples:
§  DC = Custody, DM = Divorce, minor children, DO = Divorce, no children, DP = Paternity
–       Pro confesso hearing: occurs at the end of the trial, or settlement, on the record in front of the judge, to make sure all parties are ok with the agreement/settlement
o   “Work the case backward”
o   Pro confesso questions on handout
o   These questions MUST be plead in the complaint
o   This hearing RE-AFFIRMS details already listed in the complaint
–       Best Interest Factors – MCLA 722.23
o   (a) The love, affection, and other emotional ties existing between the parties involved and the child.
o   (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
o   (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.
o   (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
o   (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
o   (f) The moral fitness of the parties involved.
o   (g) The mental and physical health of the parties involved.
o   (h) The home, school, and community record of the child.
o   (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
o   (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.
o   (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
o   (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
–       Ways to become a parent
o   Legally, we know who the mother is from the minute the child is born
o   Father goes through different steps and there are different ways for him to become a parent
1.    Marriage
§  Presumption that a child born of the marriage is a product of that marriage
o   EVEN IF IT’S NOT
§  Presumption that husband is the father – his name goes on the birth certificate
§  Public policy reasons – importance, sanctity of marriage
2.    Paternity suit
§  Until father is determined, he is called putative
§  Presumed dad is called putative, can have more than 1 putative father
§  DNA test done, court order entered when results come back
3.    Affidavit of parentage
§  Mother and father both sign
§  Legal document, completion of which is voluntary
§  Document legally makes the putative father the legal father
§  Mother still has custody, nothing in the document re: custody         
o   Father still has to go to court and ask for visitation
§  This document only allows him to get his name on the birth certificate
§  Document is retroactive for purposes of child support
4.    Adoption
§  Means there has been a parental termination of one or both parents
5.    Equitable parent
§  Legal fiction created to fix problem that occurs when father and son have bonded, thought he was bio dad, and turns out he’s not (Atkinson case vs. Bergan case)
§  RATIONALE = best interest of the child ** YOU WILL NEVER BE WRONG WITH ARGUING BEST INTEREST OF THE CHILD **
§  Equitable parent doctrine CRITERIA:
1.    Father and child mutually and naturally acknowledge each other as father/child, AND
2.    Father wants to continue that relationship and to have all rights afforded to a parent, AND
3.    Father wants to continue to pay for the child
o   ALL 3 MUST BE MET
o   Then court will deem father an equitable parent – and it is AS PERMANENT as adoption
o   Court order says he’s the dad
o   All 3 must be met at the time the court orders it – doesn’t have to be continuous
o   Look how for a woman trying to terminate parental rights because equitable dad got behind in child support (York v. Morofsky)
o   Equitable parent is just like any other parent – can’t violate their constitutional right to raise their child
o   JUST LIKE ANY OTHER PARENT
o   Be aware of the NEW LEGISLATION
o   Bio dad can come in within 2 years, even if there’s no divorce pending, and ask for his parental rights
o   Used to be a

les complaint for divorce
o   Δ served – personally or by 1st class return receipt mail
o   SMILE program (if you have children) – try to get along, best interest of the children etc.
o   Once you perfect service, get notice from Friend of the Court (FOC) (only if you have children)
§  FOC has conciliation – lawyers not allowed
§  Gets the first review of what’s going on
§  FOC makes recommendation about custody, parenting time, etc.
o   Then, opportunity to file objections
o   Goes to referee hearing – referees are attorneys
§  Evidence, witness, prepare like you’re going to trial
§  Referees make a decision and issue a written recommendation
§  Goes through entire history AND each one of the best interest factors, and how they weighed each factor
§  Comes up with physical custody, legal custody, parenting time, child support, medical, child care, etc.
§  Mailed to the parties and counsel – ONLY HAVE 21 DAYS to object to referee’s recommendation
§  If you file objections, you must object with specificity (detail exactly what you’re objecting to)
§  Judge then starts de novo regarding those objections à trial
–       Divorce is final in 60 days without children
o   180 days if you have children
o   Not an order of the court until:
§  It’s reduced into a writing
§  Signed and ordered by the court in writing, AND
§  Entered by the clerk of the court
Attorney Fees in Enforcement Proceedings
–       Always ask for attorney fees
–       Family court is a court of equity and can award attorney fees, sanctions, other equitable relief
–       Case law says you can award attorney fees:
o   If the other side cannot afford the expense of litigation, OR
o   The other party’s actions cause you to incur more legal fees than anticipated
Smith v. Khouri – talks about how to calculate the reasonableness of attorney fees