Schmidt Law Services Because no case is typical, when it's yours. Mon, 07 Sep 2015 18:00:00 +0000 en-US hourly 1 Religion, the Constitution, and Kim Davis Mon, 07 Sep 2015 18:00:00 +0000 Religion, the Constitution, and Kim DavisI was going to leave it alone. I was going to let Kim Davis’s protest of the United States Supreme Court’s gay marriage decision go without comment, figuring it would work itself out eventually. Then she ignored a court order and was held in contempt and her supporters began yelling about religious persecution.

Kim Davis, the elected Rowan County Clerk in Kentucky, has been all over the news and social media. And as a progressive Christian and a civil rights advocate, I’ve seen both sides of the argument: gay marriage advocates calling for her to issue marriage licenses to all eligible couples and religious advocates congratulating her for standing on her religious principles in the face of an oppressive government.

I didn’t want to get involved. The case would go through the courts and I would write about it if the court’s decision was relevant to me and my readers. But then, she defied a Supreme Court order.

The Rule of Law Can Be Persecution

First, to my liberal friends, many of whom are saying that applying the rule of law can never be oppressive, I would ask them to remember their history. Segregation laws were oppressive. That is why civil rights leaders led peaceful, and sometimes violent, protests against them to get them overturned. Yes, laws can be oppressive. Yes court orders can infringe on a person’s civil rights, including the right to freely express one’s religion. That said, that is not what is going on here.

Religious Freedom vs. Public Duty

What makes Kim Davis’s situation so different is that she is voluntarily employed as the Rowan County Clerk – an elected position as a public official. When she acted, and directed her deputies to act, in accordance with her religious conscience on the job, she cut off the public from its civil right to get married. Her office refused to issue marriage certificates to eligible couples – a governmental duty – based on a religious objection. This is not free exercise of one person’s religion. It imposes Kim Davis’s religion on the citizens of Rowan County, Kentucky, and establishes a religion – at least for one aspect of life in that county.

If Kim Davis has a sincerely held religious belief that runs contrary to the new duties of her office, then she should resign. If she cannot separate her public duty from her privately held religion, then she needs to be removed either by recall or impeachment (since she was elected she cannot be fired).

Civil Protest or Contempt of Court

Kim Davis was within her rights to protest the Supreme Court’s decision and the change in her duties as County Clerk. She could have gone on strike or spoken publicly about her situation or opinions. She did file a lawsuit to protect her civil right to exercise her religion. Civil protest is a constitutionally protected right, even for public officials acting independent of their offices.

But when she essentially closed her office (as far as marriage certificates go), she wasn’t protesting. She was defying a court order. Rather than allow the courts to rule on her objection, she took matters into her own hands. That is why she is in jail. Not for her religion, but for not respecting the court and its rulings. She is still entitled to appeal her lawsuit. She is not allowed to deny citizens public services while she waits for a decision.

When you choose to work for the government, you know that laws can change and that you may be asked to enforce laws you do not agree with. When that time comes you have two choices: do your job or resign. By choosing to stand between Rowan County citizens and their fundamental right to marry, Davis put herself on the wrong side of the law.

Her reasons may be religious, but that does not mean that the court’s response was a form of religious persecution. The decision to send Kim Davis to jail in contempt was not based on her religious belief. Contempt is designed to compel the offender to comply with the court order. Ms. Davis has shown that those don’t mean much to her, so the court had to find another way to provide services to citizens.

Lisa J. Schmidt is a family lawyer for Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps LGBT and non-traditional families find solutions to their family law issues. If you or someone you know is facing a court challenge, contact Schmidt Law Services today for a free consultation.

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Michigan's New Sentencing Rules Aren't Better for Defendants Wed, 02 Sep 2015 18:00:00 +0000 Defendants question benefit of new Michigan Sentencing lawMichigan defendants face a new level of uncertainty when they walk into criminal court for sentencing. The state Supreme Court’s decision may have been based on defendants’ right to a jury trial, but it doesn’t protect them from judicial discretion.

On July 29, 2015, the Michigan Supreme Court struck down the state’s mandatory minimum sentencing guidelines. The Court said that the law violated criminal defendants’ right to a jury trial by requiring judges to consider facts not admitted by the defendant or found credible by the jury.

The Court’s solution was to make the sentencing guidelines advisory, and eliminate the requirement that judges state substantial and compelling reasons to deviate from the recommended sentence. In other words, it left sentencing up to the judge.

Here’s the problem: the Court still requires that the pre-sentence investigation be done and that judges consider the resulting report. That means judges are still handed the same information that the court found unconstitutional and told to think about it, they just aren’t required to use it.

But they will.

Most criminal cases today end in a plea agreement. That means that there is no jury, and the defendant only has to admit to the elements of his or her particular crime. Even in a jury trial, certain “character” evidence isn’t allowed (so that juries won’t convict defendants on the feeling they are “bad people” rather than the elements of the particular offense).That doesn’t give the judge much to go on in deciding whether the defendant is a good candidate for rehabilitation or likely to re-offend. Unless the defendant is pleading to a “Habitual” offense, the judge won’t have information from the defendant about his or her criminal history either.

Instead, this information comes out of the pre-sentence investigation report (PSI or PSIR), and any information provided by the criminal defense attorney in a sentencing memorandum – a document many lawyers don’t bother to file out of hesitance to have their client admit anything not on the record.

The bottom line is that judges will still be using facts not proven or admitted to determine a defendant’s sentence. The Michigan Supreme Court’s “cure” really only gives the defendant more leeway to appeal a sentence he or she deems “unreasonable.” That doesn’t keep defendants out of jail in the short-run, and it doesn’t stop judges from using false or incredible information to decide a defendant’s sentence.

What it does is put more responsibility on the criminal lawyer – to provide credible information in the client’s favor both in a sentencing memorandum and at the sentencing hearing, and to object to any sentence that seems unreasonable. It shifts the burden from the judge, who had to justify deviations, to the defendant who now has to prove the decision unreasonable. That doesn’t protect defendants’ 6th Amendment rights. It makes it easier for judges to issue inconsistent sentences.

Lisa Schmidt is a criminal defense attorney at Schmidt Law Services in Ferndale, Michigan. She represents defendants in everything from traffic tickets to criminal sexual conduct. If you are facing criminal charges, contact Schmidt Law Services today for a free consultation.

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Gay Marriage Meets the Revocation of Paternity Act Mon, 24 Aug 2015 18:00:00 +0000 Gay Marriage and the Revocation of Paternity ActThe public face of the marriage equality movement has always been about the dignity and respect due to gay and lesbian couples. Behind the scenes, though, there are thousands of state and federal laws that are affected by expanding the definition of marriage, including the Michigan Revocation of Paternity Act. In the next few years, the courts are going to be asked to figure out how the law works in same-sex marriages.

The Michigan Revocation of Paternity Act has been challenging family law attorneys and judges since it came into effect in 2012. Among other things, it allows the biological father of a child to ask the court to give him parental rights instead of the mother’s husband.

Or make that wife.

Now that Michigan must recognize same-sex marriages, the gender of a person’s spouse can no longer be assumed. The up-side to this decision is that now a mother’s wife is entitled to the same assumption of parentage for children conceived or born during the marriage.

That’s a big deal. For a long time, lesbian couples have had to make the hard decision of which partner was going to be the legal parent. Now, as long as the couple is married, both wives will be assumed to be parents. (Strangely, the same assumption won’t apply to gay couples since the statute bases parentage on the mother’s spouse.) If the couple later divorces, the presumed mother will have the same rights to custody, child support, and parenting time as the mother who carried the child to term.

Revoking a Parentage Assumption

The Revocation of Paternity Act contains a dark lining on that silver cloud. If a biological father decides to file a Revocation of Paternity action, it will be easy for him to prove that the presumed mother is not the biological father of the child.

Many lesbian couples choose to ask a friend or family member of the non-carrying partner to donate the sperm needed to conceive their child. If everything goes as planned, this provides a better support network and a male role-model for the child.

When things don’t go as planned, though, the biological fathers of these children may try to take the families to court. The Revocation of Paternity Act requires biological fathers to have acted without knowledge that the mother was married. Given the confusion of the last several years regarding the legal status of gay marriage, biological fathers could argue that they didn’t know whether a marriage was valid, so they should qualify under the statute.

Known Sperm Donor Contracts

To protect their families, lesbian couples turning to loved ones for their family planning should use a Known Sperm Donor Contract. This agreement will make clear that the biological father is waiving his parental rights to the child and will agree to cooperate with the couple in future adoption or custody actions. It may seem unnecessary at the outset, but when relationships change it will give the family a defense against an estranged sperm donor.

The next several years promise to give family lawyers and judges a lot to think about as they figure out how marriage equality affects the other laws affecting children and parents’ rights. To keep their families from being the guinea pigs, lesbian couples should take proactive steps to make everyone’s role clear and ask sperm donors to waive whatever parental rights a court might decide they have.

Lisa J. Schmidt is a family attorney at Schmidt Law Services, PLLC in Ferndale, Michigan. She specializes in LGBT and non-traditional family issues. If you or someone you know are planning a family or facing a custody challenge, contact Schmidt Law Services today for a free consultation.

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Student Suspended for Tweet Gets a Trial Mon, 17 Aug 2015 18:00:00 +0000 Judge grants student suspended for two word tweet a trial“Actually yes.” Those two words got an honors student suspended, kicked out of school, and given the choice: withdraw or be expelled. Now that student has sued the school and the judge has ruled the case is going to trial.

Reid Sagehorn was a scholar and a star athlete at his Minnesota public school until a two-word tweet sent him to the principal’s office. In response to a friend’s question whether he had “made out” with one of the teachers, Sagehorn joked “Actually yes.”

The school administrators didn’t think that was funny. They suspended Sagehorn for “threatening, intimidating, or assault of a teacher, administrator, or staff member” because his tweet “damaged the teacher’s reputation.” That’s it. It didn’t threaten violence or try to intimidate anyone, but the school administrators decided to recommend expulsion anyway.

Regulating Obscenities

The school claimed the tweet was obscene. The court disagreed. The federal District Court judge ruled that while “made out” could mean sexual intercourse, the school hadn’t proved that Sagehorn’s statement was obscene as a matter of law. That means it will be up to a jury to decide whether Sagehorn’s tweet amounted to “sexually explicit material that violates fundamental notions of decency.” If it did, then it isn’t constitutionally protected speech and the school is free to regulate it.

Where’s the Disruption?

The judge also said there was another thing missing from the school’s decision to discipline Sagehorn: disruption. Schools are allowed to discipline students for statements made off-campus if the statement is targeted at the school and reasonably likely to cause a substantial disruption of the educational process.

There was no disruption here. One parent brought the tweet to the school’s attention. No one else was talking about it. The school doesn’t claim that the teacher was offended or that students were gossiping about what Sagehorn had said. The judge ruled there had been no disruption, so even if the tweet was targeted at the school, or a particular teacher, the school didn’t have authority to mete out discipline.

Governmental Immunity

This case also makes waves on one technical, legal point. Often school administrators get a pass on stepping over the line when it comes to school discipline of Internet speech. The Supreme Court hasn’t decided the issue yet and that leaves some murkiness on the issue in the lower courts.

But this judge wasn’t willing to let the administrators hide behind the idea that they didn’t know better. This judge believes that enough cases exist involving Internet speech made off campus that the issue is settled. Schools can’t discipline speech unless it is targeted at the school and causes disruption, and yes, these administrators should have known that. This is a big decision because it gives students’ rights advocates the opening they need to get around the shield of governmental immunity and make real changes in favor of students’ free speech.

Lisa J. Schmidt is a students’ rights attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents students at school disciplinary hearings and in juvenile court. If you know a student that is facing suspension or expulsion, contact Schmidt Law Services today for a free consultation.

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Gay Divorce in Michigan is Now a Thing Mon, 10 Aug 2015 18:00:00 +0000 Gay divorce is now legal in MichiganLGBT couples have found themselves in a legal gray area for years. Since the United States Supreme Court has struck down the state’s gay marriage ban, gay divorce in Michigan is now a thing.

Over the last few years family lawyers have had to turn away a lot of same-sex individuals looking for a way to move on with their lives after a relationship went sour. Michigan did not recognize gay marriage, so the courts could not dissolve their marriages or grant them divorces. Most states won’t grant divorces to people who don’t live there, so these couples couldn’t go back to where they got married either. This left members of Michigan’s LGBT community in a strange gray area: legally married somewhere, but not able to get divorced anywhere. They were stuck in marriages they no longer wanted.

But then, the United States Supreme Court legalized gay marriage nationwide and specifically struck down Michigan’s gay marriage ban. The court said states like Michigan had to recognize LGBT marriages that were legal when they were performed.

That included the 300 couples married in Michigan on March 22, 2014 – the one day between the District Court’s decision legalizing Michigan gay marriage and the Court of Appeals’ hold on the decision.

One of those couples got caught up in the moment and married because they could, not because it was right for them. After a few short months they knew it wasn’t right for them.

But at that point Michigan’s Attorney General, Bill Schuette was still claiming the state didn’t have to recognize their marriage. Then in January 2015 the District Court said he was wrong: the marriages were valid. Governor Snyder put a stop to the appeal and finally agreed to treat these gay marriages the same as all the other couples in the state.

Schmidt Law Services wasted no time helping that couple to move out of the gray and on with their lives. The complaint was filed even before the Supreme Court reached its decision in Obergefell.  After the required waiting period, LGBT family attorney Lisa J. Schmidt appeared before a Circuit Court judge the other day in Pontiac, Michigan, and the first gay divorce in Oakland County was granted.

There’s no need for gay and lesbian couples to live in limbo any longer. Michigan courts are now required to grant divorces if there has been a breakdown in a gay marriage, no matter where that marriage was performed. If you are separated from your partner and need the courts to grant you a divorce, contact Schmidt Law Services, PLLC, for a free consultation today.

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Michigan Supreme Court Strikes Down Mandatory Minimum Sentencing Guidelines Mon, 03 Aug 2015 18:00:00 +0000 Michigan Supreme Court strikes down mandatory minimum sentencing guidelinesLast week, the Michigan Supreme Court struck down that part of the state’s sentencing guidelines that requires judges to use facts not given to the jury to set mandatory minimum sentences. It’s a decision that could fundamentally change how criminal law works in Michigan.

In response to a 2013 U.S. Supreme Court case, the Michigan Supreme Court just decided that the state’s sentencing guidelines violate the Sixth Amendment right to a jury trial. Here’s how it worked.

Michigan Sentencing Guidelines

Until last Wednesday, after a defendant pleaded guilty or was found guilty by a jury, he or she would be investigated by the the Probation department, who would present a Pre-Sentencing Investigation Report to the judge. This report would include “offense variables” that described the aggravating or mitigating factors of the defendant’s actions, including the impact on the victim, number of victims, the use of dangerous weapons, and others. These offense variables are assigned values. When all the points are added together, they determine a minimum sentence range that the judge must use unless they find a compelling reason not to.

Minimum Sentence Deviations

A judge is allowed to deviate (increase or decrease) a minimum sentence from the range given by the guidelines. But to do this, the judge has to describe “substantial and compelling reasons” not adequately accounted for in the sentencing guidelines.

In the case considered by the Michigan Supreme Court, the defendant was convicted of involuntary manslaughter after he strangled his wife in front of their children and left her body in the house with them. The trial judge said that this behavior, and the harm it caused to the children, were not given adequate weight in the formula, so she gave the defendant a higher than recommended sentence.

Constitutional Problems

The Michigan Supreme Court considered the sentencing guidelines and the explanation for the deviation. There have been many other cases where a judge’s reasoning was determined insufficient, but this time it wasn’t the judge’s decision, but the sentencing guideline itself that was the problem.

Because the sentencing guidelines are based on facts that never came before the jury and were not admitted by the defendant, the court said they violated the defendant’s Sixth Amendment right to a jury trial. By requiring courts to increase sentences based on “judicial fact-finding,” the mandatory minimum sentencing range violated the U.S. Supreme Court decision in 2013.


Michigan Sentencing Going Forward

To solve the problem, the court eliminated the mandatory nature of the guidelines and made them “advisory.” While courts are still required to calculate the sentencing guideline range and consider it in imposing a sentence, judges are no longer required to impose the mandatory minimum sentences set by the statute.

One thing the court’s opinion made clear is that criminal defense attorneys are going to have to be on top of their game when it comes to objecting to the guidelines and the sentences. The Supreme Court struck down the mandatory sentencing guidelines but ruled that the judge’s sentence in this case could still stand. Going forward, criminal lawyers will need to be ready to object to the information used in the pre-sentence investigation report when it includes out-of-court information.

They also need to be prepared to object to the judge’s sentence if it seems unreasonable. The Supreme Court instructed appeals courts to review judges’ sentences for reasonableness. But to get a case before the court on this issue, trial attorneys need to make their objections at the time of sentence.

Last week’s Michigan Supreme Court decision opened the sentencing guidelines to judicial discretion and did away with mandatory minimum sentencing ranges. This is a game-changer for Michigan criminal law. It will be up to criminal defense attorneys to make sure it is a change for the better and to protect the constitutional rights of their clients.

Lisa J. Schmidt is a criminal defense attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She handles everything from traffic misdemeanors 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.

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Suspended for Facebook Posts? One Court Says No. Mon, 27 Jul 2015 19:00:00 +0000 Suspended for Facebook Post? One Court Says No.Can a school suspend a student for angry posts on Facebook? Courts across the country have asked that question and come to different answers. Earlier this year one federal judge in Portland, Oregon said no.

In 2012, Braedon Burge got a bad grade from his teacher Ms. Bouck at Colton Middle School. In response, his mother grounded him for part of the summer. Braedon did what almost any kid would do these days: he complained about it on social media. He posted on his private Facebook page that he wanted to “start a petition to get mrs. Bouck fired, she’s the worst teacher ever.” A friend asked what she did and he responded “She’s just a bitch haha.” The friend laughed along with him, to which he responded “Ya haha she needs to be shot.”

The post was visible less than 24 hours before Braedon’s mother made him remove it, but six weeks later, that post would come back to haunt him. Another student anonymously delivered a screenshot of the post to the principal’s office. Principal Powell questioned Braedon, showed him the school’s policy, and gave him a 3 1/2 day in-school suspension – sitting in the office next to the teachers’ mailboxes.

Braedon’s mother complained. She had already disciplined him for his out-of-school speech. The school didn’t need to do anything more. When the suspension stood, she took the issue to court.

Can Schools Discipline Students for Facebook Posts?

The Supreme Court has yet to tackle the question of whether a school is allowed to suspend a student for what he says online, off school time and property. But that hasn’t stopped many lower courts from applying the same rules as when speech happens on campus:

A school can restrict speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker 393 U.S. at 509.

The 9th Circuit Court – which has jurisdiction over Portland, Oregon – said this same standard applies if an out-of-school statement left a school “faced with an identifiable threat of school violence.”

No Disruption? No Suspension.

When the court applied the test here, it found that the school didn’t respond as though it had identified a threat of school violence. It did not call the police or investigate Braedon’s access to weapons. It did not even remove Braedon from the school. Nor did the target of the speech, Ms. Bouck, seem overly concerned. While she objected to Braedon being placed back into her class, when the principal did it anyway, she didn’t complain or miss any work.

The Portland judge said that this showed that no one, not even Ms. Bouck, actually took Braedon’s post seriously. Since there was no identifiable threat of school violence, the school couldn’t suspend Braedon for his out-of-school Facebook post.


Schools often try to discipline students for the offensive things they say on social media. But unless the speech causes a disruption in the school, they need to let other authorities like parents, police, and social workers, do their parts to teach them responsibility and appropriate behavior.

Lisa J. Schmidt is a juvenile law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents students on the wrong side of school discipline and in the juvenile courts. If you know a student who is facing suspension or expulsion, contact Schmidt Law Services today for a free consultation.

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EEOC Says Sexual Orientation Discrimination Is Sex Discrimination Mon, 20 Jul 2015 18:00:00 +0000 EEOC rules that you can't be fired for your sexual orientation under Title VIIIn Michigan and states across the country, gay, lesbian, and bisexual citizens are closeted at work out of fear that they will be fired based on their sexual orientation. But last week the EEOC issued a ruling that could change that, equating sexual orientation discrimination to sex discrimination under Title VII.

Since the Supreme Court ruling in favor of gay marriage late last month, LGBT advocates have been emphasizing that the fight is not over. The next front: employment discrimination. In 32 states, including Michigan, it is still legal under state law for an employer to fire an employee just because he is gay.

That battle took a big step forward on July 15, 2015, when the Equal Employment Opportunity Commission (EEOC) ruled that a gay air-traffic controller had a valid claim after he had been rejected for a permanent position based on his sexual orientation. The EEOC is an administrative office that reviews complaints of discrimination in the workplace – both by government agencies and private employers. It enforces Title VII of the federal Civil Rights Act, which requires:

All personnel actions affecting [federal] employees or applicants for employment … shall be made free from any discrimination based on … sex.

That means that employers are not allowed to take sex or gender into account in making employment decisions. In 2012, the EEOC said that this ban on sexual discrimination protected transgendered employees from employment decisions based on sexual stereotypes.

Now it applies to sexual orientation discrimination too. That’s not to say Title VII explicitly protects sexual orientation – it doesn’t. But according to the EEOC,

“Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

While this case involved a government agency, the EEOC opinion says Title VII also prohibits sexual discrimination by private employers. That means local EEOC offices will likely begin applying the same standard to private discrimination claims.

But EEOC decisions are not binding law. Circuit courts, which review EEOC decisions, consider these rulings but aren’t required to abide by them. That’s why the ACLU and other LGBT advocacy groups are still pushing for an explicit law, like the federal Employment Non-Discrimination Act. The ACLU’s LGBT Project Director James Esseks said in a statement:

“Employers as well as employees deserve the clarity that comes with express federal and state protections that everyone understands. . . . That’s why we’ll continue to work for express and comprehensive protections. The EEOC ruling is a monumental step forward and provides important protections for millions of Americans, and that’s something to celebrate.”

Title VII and other civil rights protections make sure minorities like the LGBT community receive equal protection under the law. This decision by the EEOC shows that the agency is taking its job seriously by protecting gay and lesbian employees from the prejudices of their employers.

Lisa J. Schmidt is a family law attorney for Schmidt Law Services, PLLC, in Ferndale, Michigan. She focuses on LGBT and non-traditional family concerns. If you or someone you know has questions about the recent changes to the law, contact Schmidt Law Services for a consultation today.

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In Jail for Refusing Parenting Time? What Parental Alienation Looks Like Mon, 13 Jul 2015 18:00:00 +0000 Judge sends kids to jail in parental alienation caseThe news has been buzzing these last few days about Judge Lisa Gorcyca’s decision to send three children, ages 14, 10, and 9, to a juvenile detention facility after they refused parenting time with their father. See what happens when parental alienation gets taken to the extreme.

In one of the worst parental alienation cases Judge Gorcyca said she had ever seen, three children stood before her in court and outright refused to even have lunch with their father. Even after both parents begged them to follow the court’s order, all three chose juvenile detention at Children’s Village over supervised parenting time. The media has made the judge’s decision out to be cruel, or at least misguided, but within the legal community we recognize it as a last-ditch effort to correct parental alienation.

Parental Alienation

The idea of parental alienation gets thrown around a lot by divorce attorneys. It is an often overused concept where one parent speaks poorly of, belittles, and estranges the other parent from the children. It often includes telling the children that the custodial parent is afraid of the non-custodial parent, or that he or she has been hurt by the non-custodial parent. More than just letting children choose not to exercise visitation, it teaches the children it is not safe to do so.

Parental alienation is one of the hardest parts of family law. The law assumes that a child benefits from a relationship with both parents. Judges will make very thorough investigations before suspending a parent’s parenting time. But when a child has been taught that the non-custodial parent is not safe, all the orders in the world may not do any good.

Contempt of Court

When faced with this severe case of parental alienation, Judge Gorcyca held each of the three children in civil contempt of court. This is a legal mechanism that allows a judge to imprison a person for as long as they refuse to comply with a court order. In this case, the judge ordered the children to visit with their father. If they never choose to do so, they could be held in Children’s Village until they turn 18 and the court loses jurisdiction over them.

There are a few problems with this, however.

1. The Children Are Not Parties to the Action

The parties in a divorce or custody action are the parents, not the children. Usually, the children do not even appear in court except for an in-camera review. Orders involving the children are issued to the parents. It is up to them to get the children to comply. But here, because the children were actually present, the court gave the visitation order directly to them. When they refused, they were held in contempt of court, even though they were not parties to the case.

2. Due Process

Some legal commentators have said that the judge did the right thing since these children were clearly “incorrigible” – meaning out of their parents’ control. This is a juvenile delinquency offense that can send a child to Children’s Village. But he must be charged first. There is a process, similar to the criminal process, that must be followed. Contempt proceedings are strange because they forgo all of the normal checks and balances and give the person offended (the judge) the ability to simultaneously convict and sentence in the heat of the moment.

3. No Clear Appeal

Contempt proceedings also make the decision difficult to appeal. In this case, the mother’s attorney has filed a motion for a Writ of Habeas Corpus asking for the children’s release. However, that motion will be heard by the same judge in the same courtroom. Only after she rules can the case be taken up on appeal.

The media is quick to jump to conclusions about this judge who ordered kids to jail for not having lunch with their father. The reality, as always, is a complicated, five and a half year story of high-conflict divorce and parental alienation. The decision Judge Gorcyca made may seem extreme, and it may turn out to be wrong, but it is understandable within the context of severe parental alienation.

UPDATE: On Friday, July 10, Judge Gorcyca released the children to a summer camp and allowed both parents to visit them. The case will be reviewed on July 20.

Lisa J. Schmidt is a family law and juvenile defense attorney for Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents families in difficult custody situations and gets them to a solution they can live with. If you or someone you know is fighting a custody battle, contact Schmidt Law Services today for a consultation.

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3 Tips for Parenting After Divorce Mon, 06 Jul 2015 18:00:00 +0000 Your Parenting decisions affect your children after a divorceLet’s face it, divorce is hard on children. But the choices you make after the Judgment of Divorce is signed can make a big difference in the lives of your kids. Here are 3 tips for being a better divorced parent.

1. Don’t Diss Your Ex

Depending on how bad the relationship got before you and your ex called it quits, dissing your ex may have become part of your daily routine. But by talking negatively about your children’s parent, you are hurting them. Remember, your children are 50% genetically his (or hers). By telling your kids that their dad (or mom) is no good, you’re telling them they’re half bad too.

That doesn’t just mean to speak nicely about your ex around your kids. Even by posting negative comments on social media or talking to your friends about it on the phone, you are running the risk your kids will find out. Then you will hurt them two ways: one by what you said, and two by saying it behind their backs.

It’s not just about what your kids hear, either. By perpetuating negative opinions about your ex, you change the way you perceive everything he or she does. Being five minutes late for a parenting time pick up changes from “just running a little late” to “has no respect for my time.” This could cause you to see innocent behavior as vindictive or vengeful, and could affect your attitude around your children. Instead, always try to give your ex the benefit of the doubt. If you have to vent negative feelings, try journaling or picking one friend with whom you will share your feelings.

2. Try to Co-Parent if You Can

Of course, there is a reason you got divorced. No, you won’t agree on everything. But if you and your ex can bear sitting in the same auditorium or even going to an occasional dinner together, you will help your children feel like they have one family, instead of two. This can help their mental well being.

But there will be cases when co-parenting is impossible. If your parenting styles are too dissimilar from your ex’s, you are better off using “parallel parenting” methods. Rather than pressing your children to justify how their mother or father responded to a situation, just agree that what happens in his or her house won’t always be tolerated in yours. Set clear expectations for your children with pre-set consequences so they know what to expect. If they try to use your ex’s parenting style against you, just remind them that this is your home and the rules are different here. Don’t put the children in a position of trying to explain the other parent’s actions.

3. Provide Support

The divorce process is very hard on children. They are the innocent bystanders in your war with your ex. So when they seem upset or distant, comfort them. When they need to talk, listen. And when they push away, provide them someone else to talk to. Recognize that they may be angry at you, and they may have a good reason to be. Do your best not to take it personally and give them the space to grieve the home they had grown accustomed to. And acknowledge your own fragility. Your life is changing drastically too, but due to your own decisions. For your children, the changes are coming no matter what they do, but they may not understand that. Be upfront with your children in an age-appropriate way, and never make them feel at fault for what happened. Your children are going to need more support from you as they adjust to living in divorced households. Be there for them. And if you can’t, find a mentor, counselor, or therapist that they can talk to.

Even the most amicable divorce can significantly affect children. But your decisions after the Judgment is signed can help them adjust more quickly. By respecting their feelings and needs, and doing your best to work with your ex to parent consistently, you will help ease the transition.

Lisa J. Schmidt is a family lawyer with Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps divorcing parents identify the best interests of their children and make custody and parenting time decisions that respect the children as well as the parties. If you or someone you know is considering divorce, contact Schmidt Law Services today for a consultation.

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