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Collateral Consequences of Criminal Convictions in Child Custody Cases By: Rebecca Shiemke Michigan Poverty Law Program

TOPICS. Before and after conviction:Custody and parenting timeChild supportParental terminationTelephonic participationStrategies to help survivors with criminal records. Before Conviction/Incarceration. Strategies:Investigate effect of guilty pleaEffect on maintaining or establishing custody

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Collateral Consequences of Criminal Convictions in Child Custody Cases By: Rebecca Shiemke Michigan Poverty Law Program

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    1. Collateral Consequences of Criminal Convictions in Child Custody Cases By: Rebecca Shiemke Michigan Poverty Law Program August 6, 2009

    2. TOPICS Before and after conviction: Custody and parenting time Child support Parental termination Telephonic participation Strategies to help survivors with criminal records

    3. Before Conviction/Incarceration Strategies: Investigate effect of guilty plea Effect on maintaining or establishing custody of children Does survivor qualify for deferral for first-time offenders of DV, or other expungement

    4. Before Incarceration… Provide for care of children If less than 6 months, sign Power of Attorney or Kinship Care Authorization If more that 6 months: POA extended every 6 months Limited Guardianship

    5. Avoid Parental Rights Termination Parental Rights can be terminated if: Serious crime against child Child in foster care 15 out of last 22 months unless compelling reason not to terminate Parent in prison 2+ years and did not provide for child’s care and custody Parent did not provide for child’s care and custody, and there is no reasonable expectation that parent will provide proper care/custody within reasonable time (which may be shorter than 2 years) If parent is in prison, the 15 months can elapse very quickly. Parent will have a very difficult time fighting the termination from prison. Critical issue is making arrangements that keep kids out of foster care.If parent is in prison, the 15 months can elapse very quickly. Parent will have a very difficult time fighting the termination from prison. Critical issue is making arrangements that keep kids out of foster care.

    6. Actions to Take Where Parent Facing Prison Time Client should give someone legal authority to care for client’s children. Best option depends on individual circumstances. Two options are: Parental Power of Attorney “Temporary Authorization of Kinship Care” Good for 6 months at a time – no court required Guardianship Requires court order Guardian must file reports with court Power of Attorney and Guardianship aren’t a guarantee against termination, but they are a way for the client to “provide for the care and custody of the child” while incarcerated. Which approach makes the most sense depends on the length of incarceration. Generally rule is POA for short incarceration, and other legal arrangement for long incarceration. There are a wide variety of family structures and custodial/guardianship arrangements. What makes sense depends client’s specific circumstances. Practice Tip: It can be difficult to figure out what child placement best reduces the risk of a parental rights termination during the client’s incarceration. Advise clients facing incarceration to consult with a family law or legal services attorney. Power of Attorney and Guardianship aren’t a guarantee against termination, but they are a way for the client to “provide for the care and custody of the child” while incarcerated. Which approach makes the most sense depends on the length of incarceration. Generally rule is POA for short incarceration, and other legal arrangement for long incarceration. There are a wide variety of family structures and custodial/guardianship arrangements. What makes sense depends client’s specific circumstances. Practice Tip: It can be difficult to figure out what child placement best reduces the risk of a parental rights termination during the client’s incarceration. Advise clients facing incarceration to consult with a family law or legal services attorney.

    7. But, for long term incarceration, guardianship has pit falls. Limited guardianship is preferred – if parent complies with plan, guardian cannot seek custody or refuse to return child. Full guardianship gives guardian standing to file for custody. Consider power of attorney, but extend every 6 months.

    8. Before Incarceration… Address outstanding child support orders Advice FOC of incarceration File motion to suspend order during incarceration

    9. How Support is Calculated Child support amount is calculated based on parents’ income, number of children, and other factors. If client owes back support, FOC will collect both current and back support.

    10. Child Support If don’t address while incarcerated: $28,000 average arrearage for prisoners Difficult to get reduced after released This is the second most common issue on which we see clients, after employment.This is the second most common issue on which we see clients, after employment.

    11. Problems If Owe Back Support Up to 65% of wages taken to pay support after released. Can increase risk of losing parental rights Arrearages result in loss of driver’s license, bench warrants and re-incarceration

    12. Actions to Take if Client Who Pays Support is Being Incarcerated Request reduction or cancellation of child support payments ASAP Self-help kits available

    13. Actions to Take if Client’s Current Support Amount is Too High Ask for support review from FOC. File motion to reduce support.

    14. Action to Take if Owe Arrears: Find Out to Whom Arrears are Owed Once the child support is owed, person is legally required to pay it unless the other party agrees to forgive the debt. Only the party to whom the debt is owed can forgive that debt. Only the state can forgive debt owed to the state. Only the other parent can forgive debt owed to him or her.

    15. Strategies to Reduce Total Back Child Support that is Owed If owed to the state, client may be able to: Ask for an “incarceration credit” from the Friend of the Court Make reasonable payments for 2+ years, and get rest of debt forgiven Make an agreement to pay off a lump sum and get rest of debt forgiven If owed to the other parent, other parent can forgive part or all of back support owed.

    16. Strategies to Reduce the Amount Coming Out of Client’s Paycheck Client can file motion to reduce amount of paid each week on an arrearage: this reduces weekly payment but does not decrease the total amount owed. Client can ask for a support review from FOC.

    17. Child Support and Disability Payments SSI cannot be garnished for child support. Contact Legal Aid for help. SSD, pensions and other benefits can be garnished for child support. However, individuals has only several hundred dollars left a month, it may be possible to get support payments reduced.

    18. Establishing Custody (or Parenting Time) After Conviction   To establish or modify custody, Courts must consider the “best interests of the child” by applying 12 best interest factors. MCL 722.23 Domestic violence is only one factor. Criminal convictions are relevant.

    19. Barriers to Custody After Conviction Understand how a conviction may impact custody under the best interest factors: Lack of stable housing Lack of stable employment Lack of moral fitness Existence of a PPO or other “evidence” of domestic violence

    20. Overcoming Barriers… 2 Strategies: Although 1 of the 12 factors – moral fitness – applies to criminal activity, try to limit impact. Identify opposing party as the DV perpetrator and show how perpetrator’s domestic violence affects all 12 factors.

    21. Who is the Perpetrator? Identify survivor as the DV survivor and opposing party as the perpetrator. She committed a crime, but she is not a batterer. Look at the definition of “domestic violence.” She has no history of controlling behavior; he does.

    22. Best Interest Factors: Factor (a) Love, affection and other emotional ties between the parties and the child. In general: Usually the child loves the parent, regardless of abuse and the abuser will proclaim his love for the child. Domestic violence: Abuser’s actions do not indicate love and affection

    23. Factor (b) b. Capacity and disposition of the parties to give the child love, affection, and guidance and to continue the education and raising of the child in his/her religion or creed, if any. Domestic violence: Inappropriate guidance/role modeling. Discipline may be harsh or abusive. Abuse shows incapable of giving love, etc.

    24. Factor (c) c. The capacity and disposition of the parties 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 materials needs. In general: Includes parties’ relative incomes, but higher income isn’t dispositive. Barringer v Barringer, 191 Mich App 639 (1991). Domestic violence: Withholding financial support is means to control. Batterer’s willingness (“disposition”) to provide.

    25. Factor (d) d. Length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. In general: Comparison between homes. Domestic violence: Home is neither stable nor satisfactory. Violence is unpredictable. Survivor’s housing instability caused by violence.

    26. Factor (e) e. The permanence, as a family unit, of the existing or proposed custodial home(s). In general: Permanence of proposed custodial home; not comparison. Parent’s plan to marry or introduce “significant other.” Domestic violence: Does the perceived family unit include batterer? Maintain continuity with protecting parent.

    27. Factor (f) f. The moral fitness of the parties involved. In general: Relative fitness to provide for child given moral disposition of each party as shown by individual conduct. Conduct is relevant if it has a significant influence on how a party functions as a parent. Examples: Failure to provide child with parental care while in jail Exposure to pornography Verbal abuse, drinking, driving record, physical or sexual abuse of child, other illegal or offensive behavior See Fletcher v Fletcher, 447 Mich 871 (1994)

    28. (f) Moral Fitness… Strategies- Try to show no connection between conduct and ability to parent Argue nature and/or age of conviction Show that client has taken steps to address reason for conviction: Drug/alcohol relate – she’s in treatment One instance of defendant becoming verbally and physically aggressive, does not call into question her moral fitness as a parent. Tolbert v Tolbert, 2008 Mich. App. LEXIS 2520 (No. 284517).

    29. Factor (g) g. The mental and physical health of the parties involved. In general: Impact of health on ability to parent. Domestic violence: Batterer may argue that survivor is mentally ill and not a victim. Argue survivor’s mental health issues were situational and in response to the violence.

    30. Factor (h) h. The home, school and community record of the child. In general: Child’s school record and parents’ involvement. Any juvenile court or other agency involvement. Domestic violence: Link poor performance to violence in the home. Link improved performance to batterer’s absence.

    31. Factor (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference. In general: Sufficient age may be as young as 6 years. Bowers v Bowers, 190 Mich App 51 (1991). Court’s questioning is limited to the child’s custodial preference. Malloy v Malloy, 466 Mich 853 (2002). In camera interview must be recorded. Malloy. Domestic violence: Child may prefer batterer out of loyalty or fear. Child may love batterer despite the abuse.

    32. Factor (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. In general: “Friendly parent” factor. Assumes limiting contact is harmful to the child. Domestic violence: Court may punish survivor who limits contact. Show survivor’s need to limit contact in order to promote safety.

    33. Factor (k) k. Domestic violence, regardless of whether the violence was directed against or witnessed by the children. Definition of domestic violence includes pattern of coercive control. Show that survivor’s criminal act of DV was isolated and not part of a pattern. Present evidence of opposing party’s pattern of domestic violence and coercive control. Show that client has no similar history.

    34. (k) Domestic Violence… “Even though plaintiff once struck defendant, the record shows that defendant was predominately the party at fault for the majority of the domestic violence in the home.” Pladars v Pladars, 2007 Mich App LESIX 2300 (No. 276025)

    35. Factor (l) l. Any other factor by the court considered relevant to a particular child custody dispute.

    36. Custody Exception, MCL 722.25 “If a . . . child who is conceived as the result of acts for which one of the child's biological parents is convicted of criminal sexual conduct . . . the court shall not award custody to the convicted biological parent. . . . This subsection does not apply if . . . the biological parents cohabit and establish a mutual custodial environment for the child.” “If an individual is convicted of criminal sexual conduct . . . and the victim is the individual's child, the court shall not award custody of that child or a sibling of that child to that individual, unless both the child's other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the custody.”

    37. Parenting Time   May be easier to obtain, even with a conviction: Shall be granted in accordance with the best interests of the child. Strong relationship with both parents is presumed to be in a child’s best interests. MCL 722.27a

    38. Parenting Time (cont) Child has a right to parenting time unless there is clear and convincing evidence it would “endanger the child’s physical, mental or emotional health.” If a parent is convicted of criminal sexual against the parent's child, the court shall not grant parenting time with the child or child’s sibling, unless the other parent and child or sibling (if of sufficient age) consent to the parenting time. MCL 722.27a(3), (5)

    39. Parenting Time (cont) Court can consider many factors in determining frequency, duration and time. If requested, court must parenting time in specific terms. Draft orders to promote safety: Do not use “reasonable parenting time.” Do use clear, specific and detailed terms.

    40. Parenting Time (cont) Statute provides for use of specific terms: Specific days and times. Supervised – visitation center or third party. Transfers at neutral locations or with third party. Safe means to communicate changes/emergencies. “Grace” period for delays. No drugs/alcohol before or during parenting time. Require a bond to ensure compliance. Permit denial by parent if conditions are violated. MCL 722.27a(7), (8)

    41. Right to Participate in Proceedings Incarcerated parent may have the right to telephonic participation in court proceedings affecting their children. Must be incarcerated under the jurisdiction of DOC; not county jail. Other parent must give court notice of parent’s incarceration. Court must issue order requesting DOC allow parent to participate by phone. MCR 2.004

    42. Questions: Rebecca Shiemke Michigan Poverty Law Program (734) 998-6100 ext 27 rshiemke@umich.edu www.mplp.org www.michiganlegalaid.org

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