Articles Posted in Family Law

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A family member reported to Michigan Children’s Protective Services (CPS) that Barber was neglecting J.B. Miller, a CPS social worker, interviewed J.B. at his public elementary school without a court order or Barber’s consent. Miller interviewed Barber, who defended his marijuana and prescription-drug use as medically authorized. Days later, Miller again interviewed J.B. at school without a court order or parental consent and spoke with J.B.’s paternal grandmother. Miller obtained a court order, placing J.B. in protective custody pending a hearing, Mich. Comp. Laws 722.638, and picked J.B. up from school. After a hearing, the judge found probable cause to support the petition, but returned J.B. to Barber’s custody conditioned on: Barber’s abstaining from marijuana, submitting to drug screening, and ensuring that J.B. has constant adult supervision. Barber sued Miller under 42 U.S.C. 1983 for violating his substantive due process rights by interviewing J.B. without a court order or parental consent; falsehoods in the petition; and removing J.B. from school, and challenged the statute as facially unconstitutional. The Sixth Circuit affirmed dismissal on grounds of absolute and qualified immunity and found that Barber lacked standing for his constitutional challenge to the statute. View "Barber v. Miller" on Justia Law

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Alexander filed a suit, claiming that nine individuals—all of whom had some connection to child support proceedings related to Alexander’s son—conspired against him and violated his civil rights by imposing child support obligations that he did not owe; providing false information about those obligations to the IRS; and extorting money from him through “bribery” and “terror tactics.” Among other relief requested, Alexander asked that his child support payments “be abated.” The district court dismissed claims against the federal and the state court judges on grounds of absolute judicial immunity and remaining federal claims after finding that they fell within the domestic relations exception to federal jurisdiction. The Sixth Circuit affirmed on grounds of failure to state a claim for which relief can be granted, noting that the Supreme Court has indicated that the domestic relations exception is narrow and finding that this case did not fall within the exception. View "Alexander v. Rosen" on Justia Law

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During the course of their marriage, Caroline, a citizen of Canada, made more than $75,000 in loans to Kimberly, of Ohio, which were never repaid. A federal district court dismissed Caroline’s contract and tort lawsuit. While appeal was pending, Kimberly died and Caroline substituted the Estate as the real party in interest. The Sixth Circuit reversed the dismissal, finding that neither the domestic relations exception nor the probate exception to federal diversity under 28 U.S.C. 1332(a) applied. Because a court in Canada had dismissed divorce proceedings upon notice of Caroline’s death, there was no risk of a decision incompatible with a divorce decree, and, at the time Caroline filed the federal complaint, the property that she sought was not “in the custody of a state probate court.” View "Chevalier v. Barnhart" on Justia Law

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Same-sex couples living in Michigan. Kentucky, Ohio, and Tennessee successfully challenged a variety of state laws concerning marriage. The Sixth Circuit reversed the district court rulings after exploring Supreme Court precedent. None of the theories invoked by plaintiffs--rational basis review; animus; fundamental rights; suspect classifications; evolving meaning--makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters. The court reasoned that a change in the law may result from the Supreme Court constitutionalizing a new definition of marriage to meet new policy views or by “the traditional arbiters of change—the people.” The court noted that in 11 years, 19 states and the District of Columbia, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universal. “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.” View "Love v. Beshear" on Justia Law

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Thomas and Jennifer married and purchased a family home with a first mortgage, then obtained a second mortgage. In a 2003 divorce consent decree, Thomas agreed to relinquish any interest in the home. Jennifer agreed to assume and hold him harmless from the obligation to pay both mortgages. Thomas agreed to pay child support. The couple remarried in 2004, but, in 2007, this marriage also ended in divorce. The 2007 consent decree waived spousal support; Thomas again agreed to give up any interest in the house, which he had never conveyed under the 2003 decree. Jennifer agreed to assume the first mortgage. Thomas's child support obligation was reduced and they agreed to split the second mortgage obligation. Thomas deeded his interest in the house. A $8,082.37 judgment lien was not addressed in the 2007 decree although it attached to the property before the second divorce. Jennifer sold the house in 2008. The first and second mortgage debts were satisfied. Jennifer negotiated release of the judgment lien for $5,000.00 and paid $836.14 to close the transaction. The state court entered an order in the 2007 divorce proceeding, requiring Thomas to reimburse Jennifer $7,500.00 for the second mortgage and $5,000.00 for the judgment lien. Thomas filed a petition for Chapter 13 bankruptcy relief, listing an unsecured priority claim for child support and a $15,000.00 unsecured claim on Schedule F. Jennifer asserted a priority unsecured claim for “[a]limony, maintenance, or support” of $12,500.00 for the second mortgage and judgment lien debts. Thomas objected, arguing that the claim was “satisfied when the real estate was sold,” and not a domestic support obligation. The bankruptcy court applied the Calhoun test and found Jennifer’s claim was in the nature of “alimony, maintenance or support.” The Sixth Circuit Bankruptcy Appellate Panel affirmed. View "In re: Thomas" on Justia Law

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A nursing home resident and her community spouse (husband) were penalized based on husband’s purchase of an annuity for himself using funds from his IRA. The district court granted summary judgment in favor of the director of the Ohio Department of Job and Family Services, holding that 42 U.S.C. 1396r-5(f)(1) precluded the transfer of assets because it exceeded husband’s community spouse resource allowance. Section 1396p(c) requires a state to impose a transfer penalty (a period of restricted coverage) if either spouse disposed of assets for less than fair market value during the look-back period. The Sixth Circuit reversed, reasoning that the transfer occurred before the Ohio agency determined that wife was eligible for Medicaid coverage and section 1396p(c)(2)(B)(i) permits an unlimited transfer of assets “to another for the sole benefit of the individual’s spouse.” View "Hughes v. Colbert" on Justia Law

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After her child was murdered by his father, the mother sued employees of county and state Child Protective Services (CPS) and others,, alleging negligence; violations of constitutional rights (42 U.S.C. 1983); and violation of the Adoption Assistance and Child Welfare Act--Adoption and Safe Families Act, 42 U.S.C. 670, and of the Child Abuse Prevention and Treatment Act, 42 U.S.C. 5106. The complaint alleged that from 1998-2007, CPS received numerous complaints about the father’s abuse and neglect of the child and his siblings. The district court rejected a defense of qualified immunity. The Sixth Circuit reversed. The contours of the substantive due process right to be free from government action increasing the risk of harm was not sufficiently clear that a reasonable official would understand that pursuing the father for use of a cattle prod, while failing to immediately remove the child, would violate the child’s substantive due process rights. Given previous cases, it is not clear that a reasonable CPS official would understand that failure to seek termination of parental rights would constitute denial of procedural due process. Without ignoring the father’s role in causing the child’s death, CPS employees’ conduct cannot be said to be the “most immediate, efficient, and direct cause” of the injury. View "Jasinski v. Tyler" on Justia Law

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Jena is a 19-year-old with a genetic disorder that causes physical defects and severe mental disability. She apparently communicates at the level of a child between the ages of five and seven and has the social skills of a child between four and eight. She reportedly told a teacher that her mother, Suzanne, “hit me.” The Oakland County Sheriff’s Department and Adult Protective Services (defendants), part of the Michigan Department of Human Services investigated. APS obtained an order appointing a guardian for Jena and authorizing her removal from the family home to a group foster facility. The family alleges that the defendants gave false testimony that Jena’s father made sexual comments about Jena. Following allegedly assaultive behavior, the probate court entered an order temporarily denying the family contact with Jena. Ultimately, Jena’s father was granted full custody and charges against her mother were dropped. The district court dismissed the family’s claims under 42 U.S.C. 1983. The Sixth Circuit affirmed, noting that the court was the final decision-maker with respect to Jena’s custody. The court rejected substantive and procedural due process claims and a claim of violation of First Amendment right to family association. View "Kolley v. Adult Protective Servs." on Justia Law

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A Juvenile Court standing order provided that social workers had authority to remove and provide temporary emergency care for children at imminent risk of serious physical or emotional harm and to request assistance by law enforcement officers. At a 2002 meeting, social workers determined that exigent circumstances required immediate removal of the children from Nancy’s home. A Temporary Emergency Care Order was completed in consultation with an assistant prosecuting attorney and a supervisor. A social worker, accompanied by police, went to Nancy’s home and took the children into temporary custody, and, the next day, filed a complaint for abuse, neglect, and temporary custody, with a notarized document detailing supporting reasons. A magistrate found that probable cause existed to support removal. In November 2005, Nancy and the children sued the Cuyahoga County Department of Children and Family Services, the social workers, and others. In 2010, the district court granted in part and denied in part the social workers’ motion for summary judgment on the basis of absolute immunity, denied the social workers’ motion for summary judgment on the basis of qualified immunity, and granted the children partial summary judgment on Fourth and Fourteenth Amendment claims. On interlocutory appeal, the Sixth Circuit affirmed with respect to both absolute and qualified immunity. View "Kovacic v. Cuyahoga Cnty. Dep't of Children & Family Servs." on Justia Law

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The DeGroots divorced; Joel was ordered to pay child support. The court awarded Joy the residence and ordered Joy to pay $48,000 for Joel’s equity in installments. Joy paid $10,000.00. Joel later filed a no-asset chapter 7 petition, listing Joy’s claim of $10,336.33 for unpaid support and medical bills, but not listing the receivable or the lien as assets. Following negotiations, of which the trustee was aware, Joy waived claims to support and Joel released his lien. Neither sought relief from the stay. The Trustee filed notice claiming ownership of the lien for the estate (11 U.S.C. 541(a)(1)). Joy did not receive notice and, when the trustee notified creditors that there might be assets, did not file a claim because she believed it extinguished by the settlement. The trustee later reported no assets and the case closed. Joy attempted to refinance her mortgage and discovered the assignment of lien. The case was reopened (11 U.S.C. 350(b)). The Trustee agreed to subordinate his lien to that of the mortgage company in exchange for $5,000.00. The bankruptcy court concluded that, while the trustee may administer the $5,000.00, the balance should be deemed abandoned under 11 U.S.C. 554(c) and (d). The Bankruptcy Panel of the Sixth Circuit affirmed. View "In re: DeGroot" on Justia Law