The Michigan Court of Appeals affirmed a trial court decision, in turn affirming a referee’s recommendation that the father not be permitted to have visitors of the opposite sex (he has a girlfriend) during parenting time with his children.
Here is the case. Aside from its basic atavism, the case suffers from a key defect.
The court relies on an old, most would say outdated, some would say unconstitutional, statute. The statute, enacted in 1931, prohibits “lewd and lascivious” cohabitation:
The court turns to Black’s law dictionary for the definition of “lewd and lascivious cohabitation.”
Ok, so you are saying to yourself, “hey, that seems like a plausible definition to assign to the term,” or maybe you aren’t. But you are probably not a lawyer or a judge. People with legal training know that statutes usually have annotations. And you are supposed to check them for, oh I don’t know, cases or something. Had these judges done that they would have discovered that the Michigan Supreme Court (the one above the Michign Court of Appeals in the appellate pecking order) has rejected that interpretation repeatedly. Over time. Again and again.
In People v. Davis (1940) for example, the court found that two married couples who had swapped partners and lived together were not guilty under the statute despite their admissions that they had cohabited. In McCready v. Hoffius (1998), the court again held that a landlord could not reject unmarried couples based on the statute because no evidence of an intention to lewdly and lasciviously associate had been produced, despite their intention to cohabit.
In a separate line of cases, the court held that lewd conduct was conduct related to prostitution, plus some sexual activities that stop just short of prostitution, and scandalous sexual exhibitions.
The only excuse that I can imagine for this neglect is that the father represented himself. And that, in this case, is no excuse. Judges should be able to check annotations on their own. That’s a pretty low bar, even for an elected judge.
Does anybody want to argue that the case was correctly decided, at least on policy grounds?
I am not a lawyer but it seems to me that the thing that convinced the court was that the father did not object to the stipulation in the agreement. If that is true then I don’t really see the problem with this ruling. What the Court is apparently claiming happened is that the mother asked for this provision and the father did not object so it was granted. That is a perfectly reasonable way for the trial judge to rule. Absent an error by the trial judge on what basis should it be overturned?
What probably happened was that the father did not carefully read a brief or something by the mother’s lawyer and this provision slipped in. Well, what can I say beyond “thats why we have lawyers”. The fact that he chose to argue his case for himself and was not careful enough doesn’t seem to warrant overturning the first ruling.
It’s hard to tell from the opinion, isn’t it? They never say he didn’t object. And if he hadn’t objected, they could, and should, have simply said, “The defendant is appealing x provision of the divorce decree. But he didn’t object in the trial court. Therefore, he has waived the issue on appeal. Affirmed.”
From the legal context, I know that he must have objected. Here is why:
In Michigan, as in many states, the original proceding in family law cases is before a referee. The referee’s recommendation becomes final unless a party specifically objects to it. This appeal is from a trial court decision upholding the referee’s recommendation. The trial court reviewed it because the defendant objected.
The defendant offered expert testimony. The trial court rejected it because the defendant, apparently, did not express an opinion that cohabitation is moral, while the plaintiff objected to it. He would not have offered expert testimony on an issue that he was unaware of; nor would he have offered it on an issue that he didn’t contest.
He was ineffectual in asserting his objections, but he made them. Besides, the judge’s obligation in any case is to decide what is in the best interest of the child. The judge has an affirmative duty to determine what that is. This
is gibberish. The defendant offered evidence on the effect of his relationship with his girlfriend on his children. The court decided that he could only offer evidence on his beliefs. Why? What do his beliefs have to do with what is in the best interest of the child? This opinion appears to have been written by someone with a legal dictionary, but no legal training.
Ditto the bit about it not being apparent that the court did not consider the evidence. Two sentences earlier, the appeals court notes “Because the trial court was not being asked to resolve a dispute between opposing views of morality, it determined that any evidence of morality or sexuality was irrelevant.” So the court ruled the evidence irrelevant, and then considered it anyways?
Evidently not. What effect will this have on other divorced couples who want to have live-in relationships? Will this set precedent and put a cramp in their styles?
I’d be very interested in seeing Michigan case law that touches on a judge’s duty to raise, sua sponte, specific objections, especially for pro se litigants.
Here all the court needed to do was construe the objection that was made. OTOH, I’ve personally seen cases where the Court has raised objections for a represented corporation here in Michigan. Jeez, once I had a federal judge from the Western District of Michigan raise immunity from service of process sua sponte (and it clearly didn’t apply, which is why the defendant didn’t raise it). Can’t think of a specific case that imposes a duty so specifically, and the search engine sucks on the Court of Appeals website. So if it remains interesting, I’ll take a look next time I’m at the law library. The law library, btw, is in the same building as the trial court in this case, so I’ll be tempted to peak at the case file while I am there.
But the defendant is not being faulted for failing to object to the condition. He objected to the ruling. Apparently his ex specifically asked for it in a motion for modification of parenting time. The referee granted her request, and he appealed the referee’s recommendation. The court simply says he didn’t express any moral view on the topic. There are plenty of cases talking about giving a broad construction to a non-lawyers arguments and pleadings. The court cites no authority for the proposition that expression of a moral view is necessary or even relevant in the court’s consideration of the child’s best interest. I don’t know of any either. I’d be interested in seeing some authority for that ruling.
If a lawyer that I was supervising missed authority like these guys did, I’d give that lawyer one warning. A second screw up like that, and I’d know I couldn’t trust anything they wrote. It shows a very low level of competence in legal research.
And the cases I cited before are all well-known in Michigan. The landlord tenant case was in the news when it came out. The Court of Appeals (hey is there a pattern here?) had ignored the earlier cases and upheld the landlord’s right to refuse to rent to unmarried couples. It was very controversial. The same goes for the Dizzy Duck case (cited in the pdf file linked above). That’s the case that upheld the prosecutor’s right to shut down a lap dance club as a nuisance. The case is all over the Internet.
Similarly, opposing counsel had a duty to cite to the court the adverse cases. Again, I simply don’t believe that nobody knew about these cases, and even if they didn’t know, MCR 2.114 (the equivalent of Rule 11) requires a lawyer to do a bit of research before signing a pleading. Lawyers have been sanctioned for citing overruled cases and ignoring contrary interpretations of statutes.
So I guess my point is that even if the court has no affirmative duty to raise specific objections for pro se litigants, they do have a duty to try to get the right anwer. And that duty includes stuff like not relying on an interpretation of a statute that has been rejected for 65 years. It’s not like this stuff is hot off the press. Nor is it the case that the law on this topic is in a state of flux. The court here simply decided not to notice adverse authority. That’s incompetent.
Ex-husband is cohabitating with his girlfriend; for whatever reasons the ex-wife feels this is inappropriate, so she tacks on an amendment stating that she believes it is not in the children’s best interest to observe Dad living with his girlfriend.
Ex-husband appeals the amendment NOT based on his own beliefs of whether or not is it appropriate/moral for him to live with his girlfriend, NOT on whether seeing such a thing would aversely affect the children, NOT based on his own religious/ethical beliefs, and NOT because of any disagreement with the law, but because 1) his girlfriend doesn’t want to get married and he wants to respect her wishes, and 2) he believes the restriction will negatively impact his relationship with his girlfriend, which will in turn negatively impact his relationship with his kids. We may as well add in “he doesn’t want to deal with his apparently friendless girlfriend’s bitching when she has to sleep in the van, and prefers to get laid on a regular basis.”
Now, as a stepmother who has seen some petty shit pulled by moms in “the best interest of the kids” this barely registers a blip on my offense-meter. Whether she has genuine religious/ethical/moral reasons or not, she doesn’t want the kids exposed to Dad’s lifestyle choices, and she went to the court to keep it from happening (one may also note that she is not the typical hypocritical shrew: she agreed to abide by the same restriction). Dad’s the one that dropped the ball and proved to be a dumbass; not because of an antiquated law, but because he was so focused on ensuring that his girlfriend’s rights weren’t infringed upon that he utterly went the wrong direction. The case shows clearly that “Because the trial court was not being asked to resolve a dispute between opposing views of morality, it determined that any evidence of morality or sexuality was irrelevant.”
It seems all he had to do was say “You know, I don’t agree with the Plaintiff that this will be a negative thing for the kids, my moral opinion is that cohabitation is okay in this day and age, here’s my expert testimony that the children likely will not suffer from my cohabitation, and I would prefer that my rights and opinions be taken into account.” Had he gone that route, then his case would have been added to the list of successful overturns of the law.
How is her belief relevant? The issue for the court was whether, in fact, it was in the child’s best interest–not mom’s.
Here is the standard:
Notice the statute permits an order restricting the presence of third persons, but the standard is whether the person’s absence will facilitate the orderly and meaningful exercise of parenting time. The court does not discuss whether mom presented proof on any of these issues. . . In fact, the court of appeals noted that : “It appears as if the best interests of the children werenot actually the issue before the trial court because their best interests would be served regardless of whether the trial court permitted the parties to have unrelated overnight guests of the opposite sex.” Again, confusingly, just before discovering that the presence of the gf did not matter to the best interests of the child, the court first noted that the trial court nodded to the standard, but did not make any findings. Somehow the court is unwilling to conclude from the absence of findings and its own conclusion that the child’s best interest was not at issue, that the trial court ignored the standard?
And why should he have to. Other than the obvious fact that his ex-wife is a control freak? Apparently there was no proof that the children’s best interest required the change. Why does the ex-wife get to decide what dad does on his visits if what he does has no bearing on the children’s best interest?
Where does it say she agreed to anything. The case says the court ordered it. That’s all. Do you know if she appealed that portion of the ruling? Have you read her request? In fact, how do you know she’s not a lesbian? The order only applies to opposite sex visitors.
I agree that dad mishandled the argument. But he really had a right to believ that the request had no legal merit. If mom can’t prove that it hurts the child, dad really should not have to put on a moral case in a court of law. The issue was whether the best interest of the child was served by the order. Both courts said that best interest of the child was irrelevant, although the trial court did so by simply writing a completely inadequate opinion. I can’t wait to read it, actually. I’m going to be at that court next week. I half expect it to be written in crayon.
I bet he actually did say something close to that. I’ll find out more next week. The Michigan Court of Appeals is infamous for misreporting the record. But more important–if he had said that, what would the court do? Entertain arguments on the morality of cohabitation? Apparently it had already decided the issue based on its bogus reading of an old (and probably unconstitutional) cohabitation statute. Even if it hadn’t though, who would qualify as an expert on morality?
Where does it stop? Can she get an order requiring dad to stop using animal products when the kids visit? Can she make him go to church (he has weekend visits, after all)? Can she make him stop wearing that ugly t-shirt, just like she did when they were married? I doubt he’d have much of a moral case defending that one either. So mom wins? Based on what? She could afford a lawyer to file motions, and dad can’t afford one to oppose, so she gets to make up rules about dad’s visits?
I assume you are not divorced with minor children. Parental beliefs have everything to do with it- one parent can indeed legally require the other to follow seemingly unreasonable demands. My husband initially had a week on/week off deal with his ex-wife, and she required the kids to be present in church every Wednesday night and Sunday (all day) despite the fact that my husband was not Christian. We were not allowed to bring the kids to movies above a “g” rating, even after they turned 13, and any TV show had to be approved by her. I know of many non-custodial parents who put up with similar restrictions on parenting time, based not on the desire of the kids, but on the whims of the custodial parent. The fact is, a parent has the right to raise a child however they deem appropriate, and having physical custody of the child legally gives you MORE of a right than being non-custodial. Therefore, if the parent has a belief that something is immoral and they do not want their child to be exposed to it, then they have the right to demand the non-custodial parent follow suit. The NCP and the court have the right to tell the CP to go pound sand, but that isn’t apparently the case here.
And because we don’t know the precipitating factor of why mom decided to bring this particular order about, we can’t say that the GF’s presence did/did not interfere with the parent-child relationship. What if he was one of those dads that expect the woman to handle all the parenting? What if he was so focused on the GF that he just shoved the kids in front of the TV when they were over? What if mom is indeed a harpy and doesn’t want another woman raising her kids? We just don’t know, and therefore don’t know if they meet the standard or not.
We don’t know any of this. We don’t know what goes on at dad’s house when the kids are there. We only know that mom felt it was enough of an issue to pursue it, and that dad put up entirely the wrong fight. Indeed, one wonders if the fight that he put up is a good reflection of exactly the importance he places on the kids.
“In the children’s best interest” is such a ridiculously broad phrase, and anything can be brought forward as not being in the children’s best interest. You (and, may I note, I) believe that cohabitation has no bearing on the children’s best interest. Mom does, based on her ethical/moral beliefs. Dad PUT FORTH NO OPINION. Therefore the court’s hands were effectively tied- mom’s saying it’s bad for the kids, dad’s saying he wants his girlfriend respected, and the courts have no choice but to side with mom, who’s the only one who put forth the correct (but, may I note, misguided and somewhat stupid) argument.
This is just getting silly. I’m going by the links YOU provided. Do YOU have anything else up your sleeve that says she appealed her own ruling, or that she’s a lesbian? One would assume that if she put forth the motion, she’s not going to say “oh, wait, I only wanted it to apply to him, not me.” Otherwise he would have better legal grounds to appeal it.
Mom only has to prove it hurts the child if dad openly, vehemently disagrees on the morality of the situation. If, as in this case, he doesn’t, then all mom has to prove is she does not want her child exposed to such an arrangement.
Perhaps you need to wait until you have all the information before posting an argument- I’m basing my opinion solely on what you’re providing, not on any kind of knowledge of Michigan courts and their propensity to do anything. And going strictly by your links, dad most certainly did NOT say anything close to that. Your PDF file makes it quite clear that if he had, there would be more for them to go on as far as making a more balanced decision. They had to make their opinion based on the statute, because dad didn’t give them anything else to work with.
And there wouldn’t be a need for an expert on morality. A child psychologist with experience in blended families would more than suffice.
Yes, she can get dad to stop using animal products on the kids; she can make him take the kids to church (though he doesn’t have to stay); she can make him drive all over creation to take the kids to sports and other activities, whether he wants to or not, regardless of his plans, and she can make him pay for half of it. She can’t make him change his clothes. And if dad had custody, he could do the same. The reality is courts are going to side with the custodial parent almost every time, because the NCP typically has a “every other weekend, some holidays” schedule, and the standard is that the person who actually sees the child every day has more of an idea of that child’s personality/needs.
I am NOT saying I agree with this ruling, or with the statute. I’m saying dad was a dumbass and- based, once again, on the links you provided to us- has no one to blame but himself.
I’ve been a divorced parent with a minor child since 1997 and a Michigan lawyer since 1993.
Cite?
I’m sorry. That sucks. I tend to defer to my ex’s reasonable views. But when she has tried unreasonable ones, I’ve never let them go, and the court has rejected them based on the “best interest of the child” standard. In fact, the only times we wound up in court was when she had remarried, and the new husband (a fundamentalist Christian) had problems with me. After a while she got sick of him, divorced him, and took him to the cleaners.
When I was at Legal Aid in Ohio, we had a client who married a child molester. His probation prohibitted him from being around kids. The court repeatedly refused to interven meaningfully and prevent our client from permitting her new spouse to violate his probation by being around the kids. Eventually the court did impose some conditions (requiring him to stay in the other room), which she violated, but the court refused to hold her in contempt.
That’s not the legal standard.
In some circumstances that is true. For instance, the custodial parent usually gets to determine the child’s religion.
Well, yeah. You can ask anybody for anything.
This begs the question. The questions being should the court have done so? What standards should apply? What if the trial court relied on a clearly wrong rule of law?
Ya see, now, that’s the sort of stuff that should be in the opinion. Or at least that’s what I learned in law school. If the ruling was based on inteference with the parent-child relationship, the court probably should have said so. Instead it noted that:
So the only statement in the entire opinion that actually applies the legal standards suggests that there was no evidence on the key issue. That’s a super reason to reverse and remand to the trial court so that the court can explain what the heck it did and why.
And the court noted that the best interest standard was not in play. So that really can’t be the basis of the opinion, right?
Motions have burdens of proof, just like trials. If the mom doesn’t make out her case, the court’s hands are indeed tied–to deny the motion. Not to mention that the “mom doesn’t like it” standard appears nowhere that I can find in Michigan law. And I have looked.
Nope. But I’m not claiming she agreed to anything. Can you cite me anything anywhere that says she agreed to it? Isn’t it equally likely that she filed a motion complaining about dad’s conduct and the court’s order simply included both of them? In my actual legal experience in these matters, that’s the way it usually goes.
Do you have any authority for this proposition from any state?
I’m basing my opinion on my own legal experience which includes reviewing hundreds of Michigan Court of Appeals decisions; digging through the record on dozens of them; discussing these cases with the lawyers involved, experts in the field, and law professors; and having handled appeals in the Michigan Court of Appeals. So I know that I need to look at the trial court record, because experience has taught me that the Michigan Court of Appeals is not very reliable.
Right. And that’s my point. What authority does the court cite for the idea that mom’s moral opinions about dad’s behavior should control?
Not if the court is trying to resolve a “dispute between opposing views of morality.” Indeed, the defendant offered expert testimony, but it was rejected because “it focused on the well being of defendant’s relationship with his girlfriend and its impact on the children, not on defendant’s beliefs.” Apparently the court would have accepted the testimony of a cognitive psychologist that the defendant actually believed that it was moral to live with your girlfriend, but it clearly rejected evidence that doing so has no impact on the children. Again, do you have any authority that you can cite that suggests that this is an appropriate decision? As a lawyer here in Michigan, I’m not aware of any.
Maybe, maybe not. But that’s not my question. What if mom says, “I’m morally opposed to the use of animal products. It offends my morality to have my children exposed to such brutality. Please order him to become a vegan, at least when the kids are around. No leather, no honey, no wax. All of these things offend my deepest moral scruples.” What result? Dad’s response: I like bacon. Does she win?
Again, you are avoiding the question. What if mom only wants the kids to be around a parent who as accepted Jesus Christ as his savior? It’s a pretty significant moral consideration. What if dad is equally ineffectual in his response. Ok then?
What if they really bother her? What if they have some sort of (non-sexual) gay culture emblems on them? What if they support evolution and she doesn’t?
What if dad marries a black woman? Or a Buddhist man? A witch?
Can mom bar them from the house during visits? Don’t go making assumptions about interference with the relationship. I’m talking just because of the race or religion of the new person.
But you aren’t basing it just on the links that I provided. You are basing it on your assumptions about divorce law, which might or might not be correct statements of the law of your state, but remain unsupported by citations.
The problem with such a standard is that it encourages the parties to harass each other with absurdly petty complaints. The seminar paper that I read on this topic before preparing my response to this post is called “And No More Rides on Your Motorcycle!” - Efforts to Control Non-Custodial Parenting Time. Sadly there is nothing linkable in it. The title speaks volumes, though. If we let her stop him from having his girlfriend sleep over, just because it bothers her, where does it stop?
I personally found this to be offensive. Whether the girlfriend has friends or not has no bearing on this. If someone told me I couldn’t sleep in my own bed every other weekend I’d be pissed, whether I had to sleep in a friend’s comfy guest room or a urine-soaked cardboard box in the alley.
I would also disagree with you that the father should have just asserted it was perfectly moral to cohabit. He may not have wanted to be featured on The O’Reilly Factor. He may also believe that it is not quite moral, and is hoping his homewreckin’ honey will make an honest man of him.
