Just Living Together is Expensive, Legally Speaking

The cost of not getting marriedHalf of America isn’t married. And while live-in couples may be avoiding wedding expenses, they might just be setting themselves up for expensive legal work later on. Read the full post »

Co-Parenting: You’re Doing It Right.

Co-parenting letter hits the nail on the headA recent article in the Detroit Free Press does a better job of explaining co-parenting than any attorney ever will. In “An open letter to my ex-husband’s new girlfriend,” Tina Plantamura, an Asbury Park Press Contributor, shows just what it means to put the kids first. Read the full post »

SCOTUS Dodges Facebook First Amendment Ruling

SCOTUS Dodges Facebook Free Speech DecisionOn June 1, 2015, the Supreme Court of the United States ruled on whether a federal court could convict a man based on his threatening Facebook rap posts. But the Court dodged the First Amendment issue of Facebook free speech, disappointing some civil rights advocates.

In Elonis v United States, the Supreme Court of the United States (SCOTUS) had a chance to set the record straight on whether Facebook posts were protected speech and if they could be used in criminal prosecution. Instead, it issued a ruling on the need for all federal crimes to include criminal intent. The ruling is disappointed some civil rights advocates, who find themselves in the unusual situation of agreeing with Justice Clarence Thomas.

The Case

Douglas Elonis, the rapper known as Tone Dougie, has a habit of posting angry rap lyrics on Facebook when bad things happen to him. When his wife left him and took their children with her in 2010, he began posting threatening photos and “lyrics” about his boss, co-workers, wife, and even an FBI agent. He was fired, which only fueled more posts. His wife got a protection order, to which he responded (page 4):

“Fold up your [protection-from-abuse order] and put it
in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff ’s Department.”
Among these posts, Elonis included disclaimers that these posts were “ficticious” and had no intentional “resemblance to real persons.” The federal prosecutors disagreed and charged him with violating a federal law prohibiting the interstate transmission of “any communication containing any threat . . . to injury the person of another.” Elonis responded that these were not true threats, merely his First Amendment-protected free expressions.

The Ruling

Rather than addressing whether Facebook posts could amount to true threats, SCOTUS instead focused on the federal statute. A 8-1 majority said the biggest problem with this case was that Elonis’s conviction was based on how a “reasonable person” would receive his Facebook posts, instead of anything having to do with his intent to post them. The Court said a defendant had to have some “awareness of wrongdoing.” It said the statute could only apply if a defendant “transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” Reckless disregard of a statement’s threatening nature may be enough.

The Problem

This ruling doesn’t settle the question of Facebook free speech, nor does it actually establish a standard to apply in future cases. According to Justice Thomas’s dissent (page 31):

“This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

It also puts civil rights advocates up against each other. Steven R. Shapiro, legal director of the American Civil Liberties Union, said:

“[F]or centuries [the law] required the government to prove criminal intent before putting someone in jail. That principle is especially important when a prosecution is based on a defendant’s words. . . . The Internet does not change this long-standing rule.”

But First Amendment scholar Clay Calvert was hoping for more:

“It’s really highly disappointing. It didn’t clarify much in the long run.”

Instead, legal experts will continue to debate the appropriate protections for imprudent Facebook users who use a public platform to vent their threatening frustrations. Elonis will get a new trial where it will likely be shown that his disclaimers demonstrated his knowledge that his posts were threatening. And eventually, the Supreme Court will have to rule again on the issues of Facebook Free Speech.

Lisa J. Schmidt is a criminal defense lawyer with Schmidt Law Services, PLLC, in Ferndale, Michigan. She defends people charged with everything from traffic tickets to criminal sexual conduct. If you or someone you know has been charged with a crime, contact Schmidt Law Services today for a free consultation.

What You Missed At Last Week’s Special Education Panel

ACLU School to Prison Pipeline Special Education PanelOn May 28, 2015, dedicated students’ advocates, parents, and teachers gathered to learn about what they could do to help special education students get the educational help they need. If you missed it, here’s a quick summary. Read the full post »

Fighting for Sole Custody: More Trouble Than It’s Worth

Fighting for sole custody may not be worth the effort

Sole custody is on the top of some people’s wish list when they start a divorce or a custody battle. But taking that issue all the way to trial may be more trouble than it’s worth.

A potential client, call her Amy, sits across from me in my office. She is upset. We’ve already had to break out the tissues as she described to me what happened. Her relationship with her husband Brent has broken down and she needs a divorce. She has moved her children out of the home and they are staying with a family member until things calm down. She doesn’t know what to do and never thought it would come to this.

Then I ask the key question:

“If you could wave your magic wand and have custody awarded exactly the way you want, what would that look like?”

Amy’s sadness turns to anger. She’s done everything for these kids, she says. Brent doesn’t deserve anything.

What Does Sole Custody Mean?

Whether she realizes it or not, Amy is asking for two different things: sole legal custody and suspension of parenting time. Some attorneys will also refer to this second part as “sole physical custody.”

Legal custody is the ability to make decisions for your children. Awarding Amy sole legal custody would cut Brent off from any say in the child’s education, medical care, and religious upbringing.

Physical custody refers to where the children spend their time. In order for Amy to be awarded true “sole physical custody,” Brent’s parenting time would have to be suspended, which would mean he would never see his children.

Courts Don’t Like to Grant Sole Custody

Michigan law assumes that children will benefit greatly from having a relationship with both of their parents. Because of this, most judges are very hesitant to award sole custody. Instead, they will do what they can to keep Amy and Brent both involved, to the extent that is in the best interests of the children.

That is not to say it cannot be done, but sole custody should be reserved for the most serious situations. For example, I recently received sole legal custody for a client whose husband had a severe mental illness, had abused her, and was involuntarily committed for a time because of his inability to control his actions. If one of these elements had been missing, or if there was reason to believe his mental illness was under control (he was refusing medication), I doubt the judge would have agreed to award sole custody.

Demanding Sole Custody Looks Bad

If Amy insists on sole custody in her divorce, it could come back to haunt her. That is because one of the 12 Best Interest Factors in deciding custody is the extent each parent will encourage the relationship between the children and the other parent. If the court becomes convinced that Amy is trying to alienate or cut Brent off from his children, it may count as a strike against her. If the other facts don’t clearly support Amy’s desire to shelter her children from Brent, she will end up looking like the worse parent.

Sole Custody Battles Cost More

On top of the legal ramifications, if Amy demands sole custody of her children, she should expect her divorce to cost a lot more in legal fees. Very few parents will agree to being cut off from their children, so Amy needs to expect that there will be motions for parenting time, lengthy Friend of the Court hearings, and in some cases a full trial on the issue of custody. All of that adds up to a lot of legal fees.

Sole Custody Hurts Children

While Amy and Brent fight over custody, their children will inevitably be among the casualties. As hard as parents may try to hide the emotional impact of divorce from their children, they will still be able to sense something is wrong. If one parent suddenly disappears from their lives, children may face serious psychological risks themselves, including separation anxiety, self-blame, and depression. One recent study even tied sole custody to increased drop out rates and worse educational outcomes.

In the heat of the moment, it might be easy for Amy to think the best thing for her children is to cut Brent out of her life and the lives of her children. But this all-or-nothing mentality does more harm than good. Amy and parents in her situation need to look at the bigger picture and decide whether sole custody is really what is best for their children, or if they are taking the easier way out.

Lisa J. Schmidt is a family law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents parents in divorce and custody actions and helps them determine the custody and parenting time arrangement that is best for them and their children. If you are facing a tough custody decision, contact Schmidt Law Services today for a consultation.

What Fathers Should Know About the Genetic Parentage Act

Find out about the new Genetic Paternity ActIn March 2015, two new laws went into effect in Michigan that are designed to make it easier for the state to collect child support for children born to unwed mothers. If you are a father to a child receiving state aid, here’s why you need to pay attention. Read the full post »

Study Ranks Michigan 36th on Children in Group Homes

Study shows Michigan lags in group home placementMichigan’s Child Protective Services have been under scrutiny for a long time. Now a new study from the Michigan League for Public Policy shows that the system is slipping in one important way: how many children end up in group homes. Read the full post »

Join the Special Education Rights Discussion on 5/28/15

ACLU Special Needs Panel finds ways to make graduation possible.One week from tonight, Lisa J. Schmidt of Schmidt Law Services will be involved with a panel on Special Education and the School to Prison Pipeline hosted by the ACLU of Michigan. Parents, come find out what you should expect from your school, and what your student’s rights are. Read the full post »

Expelled at 4? Preschools Look Ways to Reduce Misbehavior

Schools expel preschoolers rather than deal with traumaImagine getting a call in the middle of the day. Your 4 year old needs to come home. He (or she) has been hitting or biting other students and has been expelled. What would you do? Read the full post »

Joint Custody: Are 2 Homes Better Than 1?

Is Joint Custody better for your child?There has been a lot of talk recently about how important two parent households are to children’s well-being. But when divorce or separation is the best choice, is there anything you can do to make the situation better for your kids? Maybe you should consider joint custody. Read the full post »