Florida v Jardines

Florida v Jardines

By: James Samuels

Last week the United States Supreme Court issued an opinion that clarifies a citizen’s Constitutional right to be free from warrantless searches.  This is a victory for American citizens and their freedom from unwarranted governmental intrusions.  The Supreme Court had already stated in Kyllo v. United States, 533 U.S. 27, 31 (2001) that “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”  The question that was presented to the Supreme Court recently was whether it violates one’s Fourth Amendment rights when a police-trained drug sniffing dog is allowed to sniff around one’s home without a search warrant.  

The case, Florida v. Jardines, began in 2006 when a DEA agent got a tip that Joelis Jardines was growing marijuana at his house.  The agent sent more agents and a drug sniffing dog to Mr. Jardines’ house and the dog detected the odor of marijuana emanating from the home.  It was based on the drug dog’s indication of a presence of marijuana that the agents were granted a search warrant to go inside the home and conduct a search.  As a result, Mr. Jardines was charged with trafficking cannabis.

Jardines argued that the dog sniffing around his house amounted to a search of his home and a warrant should have been obtained beforehand.

In order for the government to search a home, it must first demonstrate that there is probable cause to think that there is something illegal inside.  The government agent (usually a police officer or detective) will present all of the information he or she has to a judge or a magistrate who will decide whether the information presented is enough to reach the probable cause standard.  If it does, then the judge or magistrate will issue the search warrant.

The argument that Jardines made was that bringing the drug sniffing dog to his home and letting him sniff around amounted to a search.  The Supreme Court agreed.  It reasoned that at the very heart of the Fourth Amendment stands the notion that a man has the right to go into his home and be free from unreasonable governmental intrusion.  It went on to say that “This right would be of little practical value if the State’s agents could stand on a home’s porch or side garden and trawl for evidence with impunity.”  The Court stated that an officer may approach a home and knock, precisely because that is no more than any private citizen might do.  However, to introduce a trained police dog to explore the area around the home in the hopes of discovering incriminating evidence is something else.  There is no customary invitation to do that.

           

 This case is not a defeat for the police who are protecting our communities from illegal activities.  It is a victory for our constitution. 

The Most Important Legal Document For Your Child

The Most Important Legal Document For Your Child

By: Stacy Flanery

The most important legal document for your child if you are not married IS NOT a birth certificate.

Having a child is a whirlwind.  A whirlwind in terms of time, emotions, and of course, paperwork.  Most hospitals are set up to allow you to pre-register to have your child and provide all of your personal information, medical history, and the like.  You can provide a birthing plan in advance, decide whether your child will immediately receive the hepatitis C vaccination, and sign a consent for your treatment and the treatment of your child.  All of this takes place regardless of whether you are married.   After the joyous delivery, you are ecstatic, scared, and exhausted, and feel like you are in a whirlwind.  You are completely preoccupied with the visitors, with all the questions, and, of course, your beautiful baby.  Eventually, someone will come in and provide paperwork.  The paperwork will include the cute birth announcement you get from the hospital, the information about pictures, resources to assist after you go home, and perhaps a cafeteria menu.  Somewhere along the way, someone will ask you (if you are not married) if you want the Father listed on the Birth Certificate.  Many say yes, of course, and both parents sign where they are told to sign. They later get a copy of the birth certificate and Father is listed, so Dad is all set, right?  It all seems neat and tidy, correct.  Well, unfortunately, the answer is only a maybe.

The document the hospital will ask you to sign if you want an unmarried Father listed on the Birth Certificate is called an Affidavit of Parentage.  An Affidavit of Parentage is a legal document that both parents sign, swearing under penalty of perjury, that the individual listed is the biological Father of the child.  The affidavit of parentage is THE MOST IMPORTANT LEGAL DOCUMENT an unmarried Father can possess.  In the event that the parties separate, it is the affidavit of parentage NOT THE BIRTH CERTIFICATE that gives an unmarried Father his rights to his child.  Being listed on the birth certificate does not provide you with any rights to your child, any rights to visitation, or any rights at all; the affidavit of parentage is the document that provides these rights.  In theory, anyone could be named on the birth certificate, although I would argue that is generally not true in practice.  In many counties a Father cannot even request a court order to see their child without providing a copy of the affidavit of parentage or having paternity reestablished through the court.  Technically a hospital should not allow you to get treatment for your child, law enforcement should not retrieve your child from a third party on your behalf without showing them the affidavit of parentage, and you cannot enroll your child in school without that document.   

It is painfully obvious to practicing family law attorneys that parents often have no idea what they are signing to have a Father listed on the birth certificate and certainly do not understand the significance.  The affidavit of parentage gets sent home in a folder from the hospital and is often lost or even thrown out because people believe that the birth certificate controls once it is issued.  It is not the parents’ fault: they are never told and no one really thinks to ask.  It is not the hospitals’ fault: it is not their job to provide legal advice.  My opinion is that fault lies with the legislature as they could simply pass a law that says you cannot be listed on a birth certificate without an affidavit of parentage thus making all birth certificates sufficient.   Until that time, please pass along this friendly piece of advice to any and all unmarried parents: HANG ON TO THE AFFIDAVIT OF PARENTAGE.  Keep it in a safe place and guard it like you would your child’s birth certificate or social security card.

Miranda Warnings Explained

Miranda Warnings Explained

By: Erin Carrier-Barnhart

The question I am asked the most often by my clients:  “They didn’t read me my rights when they arrested me!  Does this mean you can get my case dismissed?”  In order to answer this question, a lot more discussion needs to take place. 

Almost everyone has heard their rights at one point, mostly from the crime dramas that seem to permeate the prime time T.V. circuit.  “You have the right to remain silent, anything you say can and will be used against you in a court of law.  You have the right to an attorney, if you cannot afford an attorney one will be appointed to represent you.  .  . “.   When do the police have to read you these rights?  Under what circumstances?  What happens if they don’t? 

The Supreme Court has ruled that if you are in custody, the police may not interrogate you unless they have first advised you of your rights. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).  Interrogation means that the police are asking questions or making statements in an effort to elicit an incriminating response.  Being in custody means that you are not free to leave.  Case law has established that certain situations do not amount to custodial interrogation.  For example, questioning a motorist on the side of the road after a traffic stop does not constitute a custodial interrogation that would require an officer to read you your rights.  Berkemer v. McCarty, 468 US 420, 104 S Ct, 3138, 82 L Ed 2d 317 (1984).  It has also been decided that, absent special circumstances,  like arresting a citizen at gunpoint or forcibly subduing a citizen, questioning a citizen on the street, in a public place, or in a person’s house is not custodial.  Schneckloth v. Bustamonte, 412 US 218, 93 SCt 2041, 36 L Ed 2d 854 (1973) 

Once the police have read a citizen his rights, he must then make a decision as to whether to waive them and make a statement to the police or assert them and either remain silent or ask for an attorney.  If a citizen asks for an attorney, the police have to immediately stop the interrogation.  They cannot restart it unless an attorney is present or the suspect initiates the conversation. 

If a police officer doesn’t follow these rules, then any statements that the citizen made will not be admissible in court, and any evidence that the police found as a result of the statements the citizen made will also not be admissible in court.  It does not mean that the case will automatically be dismissed; it just means that the illegally obtained evidence cannot be used against the citizen if charges are filed.

The best thing to do when being questioned by the police is to remain polite and quiet.  Memorize this statement:  “Officer, I do not mean to be rude or disrespectful, but Michigan law says if I talk to you, and you think I am lying, you can charge me with a crime, so I do not wish to talk to you.  I would like to have an attorney present if you would like to continue to speak with me.”  You have the right to remain silent and the right to have an attorney.  You should invoke both of those rights!  Do not try to outwit the officer.  Even if you think you could, why take the risk?  If you have nothing to hide, you still shouldn’t make a statement.  Sometimes a statement that you think is going to help you in the long run ends up hurting your case instead.  Do not lie to the officer in an attempt to clear your name.   Not only is it likely that the officer is going to figure out that you aren’t telling the truth, you can be charged with a crime for lying to an officer conducting an investigation.  There are no laws preventing the officer from lying to you, but there is a new law that states it is a crime to lie to an officer:

Conceal from the peace officer (by any trick, scheme, or device) any material fact, or make any statement to the peace officer that is false or misleading regarding a material fact, or issue or provide any writing or document to the peace officer that the person knows is false or misleading regarding a material fact.  MCL 750.479c

Remember:  You have the right to remain silent and you have the right to an attorney.  Assert your rights!  Always ask for an attorney and never make a statement to the police without an attorney present.  Our fantastic constitution has afforded us these rights for our liberty, and we should use them. 

Finders Keepers, Losers Weepers

Finders Keepers, Losers Weepers

By: Erin Carrier-Barnhart

I am bothered by the Michigan laws regarding larceny.  As a firm believer in the childhood rule of “finder’s keepers, loser’s weepers,” it irks me that Michigan law does not agree with this very basic concept, which makes total sense to me.

For example, if a person accidentally leaves their cell phone in the booth of a restaurant, and the next patron comes along and discovers the cell phone, she has two legal options.   She can either leave the cell phone there or she can attempt to locate the rightful owner by either turning the phone in to the restaurant or contacting the proper authorities.  Either way, she may not keep the cell phone for herself.  If she does, she has committed a larceny.

It’s true that one cannot steal property that has been abandoned; however, the property must be truly abandoned for it to be up for grabs.  It’s extremely unlikely for someone to abandon anything of value such as a cell phone or a piece of jewelry.   It’s even more unlikely that a jury is going to believe that the property was truly abandoned, even if the original owner cannot be located.

My thoughts on the issue are simple:  If someone is reckless or absent-minded enough to lose their property, it’s no one’s fault but their own.  Loser’s weepers!  If your property is so very special to you, you should take better care of it and not leave it behind.  Kudos to the lucky person who happens to come along and discover that something of value is up for grabs!  Finder’s keepers!  Why should the person who happens to discover the lost item and takes advantage of an opportunity that presents itself be punished?

I am not arguing that people should not do the “right” thing and try to locate the true owner of property that they discover has been lost.  Honestly, I hope that if someone found something of mine that I had misplaced, that it would be turned in for me to come back and claim.  But if it isn’t, well, I guess I should have taken better care of it to begin with.  And to the lucky person who found the property that I negligently left behind:  I hope you take better care of it than I did.  That person is not committing a theft against me; he or she is taking advantage of an opportunity that presented itself.  In my opinion, a person who finds a lost wallet and doesn’t turn it in should not be classified the same as someone who steals a wallet from someone.  Finding a lost item and failing to turn it in is not the same thing as stealing an item from someone who has taken the proper steps to maintain possession of the item. 

Regardless of my personal feelings on the matter, the legislature has spoken.  It is a larceny if you find something and keep it for yourself, so be careful out there.  If you find a dollar in the parking lot, you better turn it in at the customer service window, or leave it where it lies, because as soon as you put it in your pocket to keep it for yourself, you have committed a larceny.

Step-Parent Adoption When a Parent is Incarcerated: Part One

Step-Parent Adoption When A Parent Is Incarcerated:

A Two-Part Process

By: Stacy Flanery

Part 1: Support

The scenario is one that is familiar to many people:  Woman has a child.  Father of the child is inactive, rarely visits, calls, or otherwise participates in the child’s life, never pays support and then goes to jail.  Woman marries.  Child is loved, cared for, nurtured, and supported by step-father.  Step-father wants to adopt the child.  (This scenario also happens to men who marry and have an active step-mother but for ease of reading, the first scenario will be utilized.) 

            Step-parent adoptions are regular occurrences in Michigan.  MCL 710.51, the statute directing the requirements to terminate a non-active parent to allow a step-parent adoption, is fairly straight forward:  The person who wants to adopt must prove by clear and convincing evidence:

a)      The other parent, having the ability to support, or assist in supporting the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has substantially complied with that order for a period of 2 years or more before the filing of the petition.  AND

b)      The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before filing the petition.

When a step-parent adoption is contemplated, the idea of whether a parent has the ability to support a child has been heavily litigated and generally comes down to whether the judge thinks the parent had such an ability, based on the evidence.  See In re Rose, 174 Mich App 85, 435 NW2d461 rev’d, 432 Mich 934, 442 NW2d 634 (1989).  Failing to follow a support order is generally easily established with testimony from the Friend of the Court regarding support arrears.  However, in In the Matter of GOC, unpublished opinion of the Court of Appeals, Docket number 305328, decided January 24, 2012, the Court of Appeals made proving a person failed to comport with the support order more challenging.  More importantly, Friend of the Court policies and procedures are making this impossible to prove.  

In the Mecosta County Probate Court, a case began with a Mother who was on assistance when the child was born and as a result, the prosecutor’s office represented her in a petition for child support.  Support was ordered, but never paid.  Father was incarcerated when the child was an infant.  He was in and out of jail for a few years, failing to pay support for a majority of the time.  Eventually, Father was sentenced to prison for a period of years.  As a result of his incarceration, the Friend of the Court scheduled a hearing regarding child support and, with no testimony, set support at $0, stating that his incarceration made him unable to pay.  The order also required Father to pay his arrearage at 3% each month.  Father paid nothing on his arrearage and sent no money or other items to support the child. 

Mother remarried and eventually, she and her Husband filed a petition to allow the child’s step-Father adopt the child.  At the hearing to terminate Father’s parental rights, the Friend of the Court testified that the 3% language was standard and not enforced.  Father’s rights were not terminated because Father had complied with the court order, which ordered him to pay $0.  The Court of Appeals affirmed and said Father could not be responsible for paying his arrears if it was not enforced by the Friend of the Court.    Bottom line, Father was allowed to not support his child by the Friend of the Court so long as he was incarcerated because of the policy and procedures utilized by the court. 

            As unjust as this result is, it is now binding case law and practitioners and individuals need to be prepared to face this battle.  Here are a few tips to make an attempt more successful:

1)      Plan ahead. If step-parent adoption is contemplated, see an attorney immediately to understand what needs to be shown and what your particular judge will expect.

2)      Be an active participant in an FOC hearing.  The Friend of the Court will schedule a hearing to change support to $0.  At the hearing, tell the court you want to ask questions, and then ask questions to find out if there is some income, perhaps through jail employment.  If there is no income, ask the court to hold support in abeyance, rather than set support at $0 because that allows the court to later evaluate the ability to pay. 

3)      File a motion to modify support.  File motions requesting support and take the opportunity for a support review when offered to establish an ability to pay.  Many people who are incarcerated for a long time are able to get jobs and earn some amount of money, even during incarceration.

4)      File a motion to enforce the support order. Support orders contain language regarding payment of medical expenses, paying arrearage, and the like. Even if no support is ordered, you can submit medical bills and seek to enforce other portions of the order, even if the Friend of the Court will not. 

5)      Attempt to negotiate. Some parents will willingly release parental rights if given the opportunity, don’t be afraid to ask.   

Part 2: Contact …Coming soon

Step-Parent Adoption When a Parent is Incarcerated: Part Two

Step-Parent Adoption When A Parent Is Incarcerated:

A Two-Part Process

By: Stacy Flanery

Part 2: Contact

Step-Parent Adoption when a parent is incarcerated: A two-part process. 

The scenario is one that is familiar to many people:  Woman has a child.  Father of the child is inactive, rarely visits, calls, or otherwise participates in the child’s life, never pays support and then goes to jail.  Woman marries.  Child is loved, cared for, nurtured, and supported by step-father.  Step-father wants to adopt the child.  (This scenario also happens to men who marry and have an active step-mother but for ease of reading, the first scenario will be utilized.) 

            Step-parent adoptions are regular occurrences in Michigan.  MCL 710.51, the statute directing the requirements to terminate a non-active parent to allow a step-parent adoption, is fairly straight forward:  The person who wants to adopt must prove by clear and convincing evidence:

a)      The other parent, having the ability to support, or assist in supporting the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has substantially complied with that order for a period of 2 years or more before the filing of the petition.  AND

b)      The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before filing the petition.

Part 1: Support (see previous blog)

Part 2: Contact

      Various cases have established that there is no exception for incarcerated parents as it relates to contact with the minor child.  Basically, the court has said that being in jail is not an excuse for not contacting your child.  An incarcerated parent can write letters, send cards, or take other appropriate actions to maintain contact with the child.  Now, prisoners may even have the opportunity to call the child using calling cards or the like.  An incarcerated parent can file a request with the Friend of the Court for specific times for calling or other specific methods of contact.  It is very unlikely that any court is going to authorize visitation in jail.  The contact has to be substantial.  A card at Christmas and on the child’s birthday is not going to be considered substantial, but a letter once a month could be. 

      Being in jail is no excuse to not have contact with your client, AND it is no excuse to not let the father of your child have contact.  The statute specifically provides that the other parent must have the “ability to contact the child.”  If a parent rejects or returns letters or otherwise takes active steps to ensure that the child does not have contact with the incarcerated parent, the step-parent adoption will not be granted.  Most incarcerated parents will argue that they did not have the ability to contact the child because Mother moved and changed her telephone number.  They will often argue that their extended family was denied access to the child and that extended family was acting as an extension of the Father. 

      Whether an incarcerated parent has failed to contact, communicate, or visit is a question of fact, so what it really boils down to is: what does the court think is substantial and who does the court believe?  What should you do if you want a step-parent adoption?

1)      ALWAYS keep your address and telephone number up to date with the Friend of the Court. The incarcerated parent then has access to the information and you can have someone from the Friend of the Court testify as to whether he sought out the information.

2)      NEVER return letters gifts or other items from the incarcerated parent or extended family.  Even if the letter or card is addressed to you as a parent, do not return it, and keep it as possible evidence in court. 

3)      Keep good records.  Keep every piece of mail or item sent (if it is a gift for the child take a picture).  Write down the date anything was received and the date and times of any telephone calls. 

4)      Notify the Friend of the Court regarding missed parenting time.  If a parent has parenting time on alternating weekends before incarceration, notify the Friend of the Court when parenting time is missed. 

5)      Be cautious about visits with extended family.  Only you as a parent can decide if it is a good  idea to continue or begin a relationship with extended family.  Extended family can facilitate phone calls and contact and, depending on the extent of the contact, could prevent a court from allowing the adoption.  

Michigan’s New Paternity Statute: A Good Start, But A Long Way To Go

Michigan’s New Paternity Statute: A Good Start, But A Long Way To Go

By: Stacy Flanery

Michigan recently enacted legislation that allows a biological Father to ask the court to participate in his child’s life, even if the Mother was married to someone else when the child was born or conceived or another man signed the Affidavit of Parentage.  MCL 722.1437  The law is certainly a step in the right direction.  Most people agree that a biological parent should have rights to their children.  However, the legislation is vague and leaves many unanswered questions, particularly for legal Fathers who are not biological Fathers, but who have been acting as the child's Father for years. 

The statute allows a biological parent, mother or father, to ask the court to set aside an Affidavit of Parentage if there is an a) mistake of fact, b) newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed, c) fraud, d) misrepresentation or misconduct, or e) duress in signing the acknowledgment. However, the statute fails to define these terms. See MCL 722.1433.   It begs the question as to whether, for example, a Mother can seek to revoke the affidavit of parentage on the basis of fraud if a Father who has been acting as a father for years has now embezzled money, or committed another crime?  As to duress, the statute specifically relates the duress to duress in signing the document.  Because the statute simply says “fraud” or “misconduct,” arguably an individual who has committed a crime or other type of action that could qualify as misconduct could put them in a position to have their parental rights challenged.   It is unlikely a crime of embezzlement would result in Child Protective Services seeking to terminate parental rights under the laws that pertain to abuse and neglect, especially if the other parent is appropriate.  A mother can use this statute as a means to terminate parental rights of a legal, but not biological, Father. 

The statute attempted to build in a safeguard, by indicating the court may refuse to set aside the Affidavit of Parentage if they find evidence that the revocation is not in the child’s best interest.  MCL 722.1443(4)  However, the statute makes the refusal absolutely discretionary to the judge and fails to provide an evidentiary standard by which the best interest factors should be weighed.  If a criminal is convicted, the evidence has to be established beyond a reasonable doubt.  If custody is to be awarded to one party or the other, the court has to decide what is in the best interest of the child, based on a preponderance of the evidence or clear and convincing evidence, depending on certain circumstances.  The paternity statute only states if there is some evidence and makes it discretionary, which is akin to no standard at all.  Without a standard, parties are sure to get varying results, depending on which Judge hears their case.  Some judges will set the bar higher than others to revoke the Affidavit.  The parties’ interests are far too important to leave the standard open-ended.

Although the legislature did the right thing in enacting a statute to give a biological Father standing to have a relationship with his child, it failed to safeguard legal fathers who will potentially lose their rights to children they have loved and raised for years, or at the very least, have those rights challenged.  As a result, a child may lose the only Father he has ever known in one jurisdiction, and a child in a similar situation in another jurisdiction will not.  The problems that may result from the legislature’s failure to adequately define its terms and set standards are likely to be numerous and unless additional legislation is enacted, will likely take years of case law to sort out.