LaBre on Law

Short Stories on Michigan and Indiana Law

Month: May, 2013

Revoking Paternity: New Exceptions

 

Genetic testing

Genetic testing (Photo credit: Wikipedia)

Last night I did some research on Michigan Paternity law. During my research I found a new set of statutes that provide a basis for revoking Paternity Judgments where the man was determined the father by default.  I had to tell my Dad.

I entered the law office and said my usual “good mornings” and “what’s new” to Mom and Terrie, who were both in the front reception area.

Then I walked down the hall to my father’s office, where I found Dad reading at his computer.  From his posture, he didn’t seem as though he was in analytic mode so that an interruption would be intrusive.

Tapping on the doorframe leading into his office, I said in a cheery voice, “Salve, mon pere.” “Salve” means “hello” in Latin, and “mon pere” means “father” in French.

Almost spinning in his chair to face me, he boomed, “Salve felius!” “Felius” means “son” in Latin. It’s a LaBre thing, we like it and do it because no one understands.

“Gotta sec?” I asked.

“Sure,” he replied, and extended his hand toward a chair next to where he was sitting.

“I found something interesting last night during some research on a Paternity law,” I said as I walked into his office while shrugging off my suit coat at the same time. “I thought you might want to know about it.”

“Tell me,” he said smiling as he leaned back in his chair.

I tossed my coat over the backrest of one of the other chairs in his office and placed my briefcase in its seat, and then sat down next to him.

“Do you recall Michigan’s default rule in Paternity cases?” I asked.

“Sure,” Dad replied. “A guy served with a complaint for Paternity needs to answer within 21 days of service, otherwise the Court can determine him be the father automatically.”

“Well, last June, the legislature made effective a statute allowing guys to revoke the Paternity Judgment if Paternity was established by default.  All he has to do is file a motion to set it aside,” I said.

“Oh?” He said inquisitively. From his facial expressions, I could see his mental wheels spinning. “That piques my interest. What are the conditions?”

“Generally, after June 12th 2013, the child must be no more than three years old or if the child was older than three at the time the default Judgment was entered, the motion to set aside must be brought within one year after the Judgment was signed by the Judge.”

“What about guys who were defaulted years ago?” Dad asked. “Did you see anything in there for that?”

“Sure did,” I replied. “Any man who has ever been established as the father of a child by default in Michigan can file a motion to set it aside so long as the action is filed by no later than June 12th, 2013.

“So the legislature made it a sunset provision that ends a year after the Act’s effective date.” Dad said.

“There’s more,” I went on. “Assuming the guy missed the time windows for filing, a motion to set aside can still be brought if excusable neglect can be shown, such as: fraud, duress, mistake or misconduct, among other things.”

“That’s good,” Dad said. “Who decides the case and what’s the standard of proof, clear and convincing evidence or preponderance of evidence?”

“The Judge decides the case,” I said.

“I think the standard of proof is debatable,” I went on. “Clear and convincing evidence pops up a couple of times in the Act, but the Act itself doesn’t make plain whether it applies only to the specific sections that it’s found in, or to the Act as a whole.”

“Is genetic testing required or optional?” Dad asked.

“Required,” I replied. “Albeit, the results aren’t binding on the Court in making its final determination. Even if the genetic tests show that the guy isn’t the father of the child, the Judge can still refuse to set aside the original Judgment of Paternity.”

A smirk crossed Dad’s face as he said, “I’ll bet that’s because the last part of the analysis focuses on the best interests of the child rather than the evidence showing that the man isn’t the father.”

“That’s exactly right,” I said. “In fact, the Judge need only ‘find evidence’ that setting aside the original Paternity Judgment is against the child’s best interests in order to deny the motion.”

“Sounds like the best interests factors are determined by using a preponderance of evidence standard of proof, doesn’t it,” Dad said.

“I thought so too,” I said. “And one more thing, if the guy loses the case, for whatever reason, he has to pay the other party’s attorney fees.”

A sour look crossed my Dad’s face, but he said nothing.

There was a pause in the conversation before I said, “Well, I suppose that’s pretty much all I came to bother you with.”

“You’re never a bother, son,” Dad said.

Then, sensing that our conversation was over, Dad swivelled back around toward his computer, and said, “Well, that should make for some interesting cases.”

 

Trust or Consequences: The Downside to Powers of Attorney

English: Power of attorney for Abram Ioffe by ...

English: Power of attorney for Abram Ioffe by Vladimir Lenin to represent USSR with Estonia. Русский: Доверенность, выданная В.И.Лениным Абраму Иоффе на представление РСФСР в переговорах с Латвией, Литвой и Эстонией. (Photo credit: Wikipedia)

He was eighty.  His son had brought him to my office.  “My Dad’s got a big problem”, he said.  “His girlfriend has just ripped him off and took all of his money!”

“She’s not my girlfriend, you young whipper snapper!  She’s just a wonderful girl who takes care of me.  A lot better than you do, too, if I do say so myself.”

“Right, Dad”, he said, turning to his father.  “That’s why she just took over $200,000 from your bank account.”

“Wait a minute”, I said.  “How did she withdraw all of that money from the bank?  Was it a joint account?”

“I wouldn’t do that”, his dad replied.  “I’m not that dumb.”

“OK.  So, how did she get access to your bank account?”

“You tell him, Dad, or I will.”

“You see, it’s like this”, his father said.  “My son, he lives in the Upper Peninsula.  It’s hard for him to come all the way down here.   But I can’t do everything for myself anymore.  I need some help.  So I hired a housekeeper to help me.”

“She helped you, all right,” his son muttered.

“Well, as I was saying, she began to help me.  She even helped me write out my monthly bills.  I’d sign a check, and she’d go get my groceries.   She’s really very nice.”

“OK.  So, how did she get access to your bank account?”

“Well, about a month ago she suggested that it would be a lot easier if she had a power of attorney.  That way she could just take care of things for me.  She brought me to an attorney, told him what I wanted, and he drafted the papers and I signed them.  No big deal.”

“Did she take your money?”

“No.”

“Oh yes she did, Dad!  Here’s a copy of the $200,000 check she wrote to herself which cleaned you out.”

“She wouldn’t do that”, his Dad insisted.  “It’s probably just a loan.”

“If it’s ‘just a loan’, then where has she been the last week?”

“She said that she was going to visit her sick mother.  Isn’t that nice?”

“Where is she now?” I asked.

“With her mother.”

“Where’s is her mother?”

“Out West somewhere.”

“Do you have a phone number?”

“No, I don’t”, as a puzzled look came over his face.

“I’ll be surprised if you see her again”, I said.  “What you’re telling me is a far too common story.  I’ve seen children do this to their parents, brothers do it to their sisters, nieces do it to their aunts.”

“It usually starts out as a ‘small loan’, but the easy money is just too easy.  The owner doesn’t even know it’s happening, or else makes excuses.  After all, it’s usually the person whom the elderly and lonely soul trusts and upon whom the person depends.”

“Isn’t there anything we can do?”

“Well, first, I need to read the power of attorney.  The person who has the power, called an ‘attorney in fact’, is prohibited by Michigan Law from engaging in self-dealing unless the power gives that authority.  I’ve seen some lawyers, though, who give that authority in the document.”

“Assuming that that the authority to make gifts to yourself is not in the document, then you would need to do the following:

“First, you need to sign a document called “Revocation”, and mail that document both to the attorney in fact, record it with the Register of Deeds if you own land, and give a copy to every financial institution so that the power is not used.”

“Then you demand a return of the money.  You can even sue for three times the amount of money which was stolen from you.  Unfortunately, once the money has been taken, it’s usually spent and there’s nothing left to collect.

“Finally, you need to report the theft to law enforcement.  If you can’t get your money back, at least they can think about the theft from behind bars.”

“But shouldn’t everyone have a Power of Attorney?” the father asked?

“No, as a matter fact, everyone shouldn’t.  A Power of Attorney is literally a blank check.  You don’t trust someone that much unless you’re absolutely certain that the person is completely trustworthy.  If you’re wrong about the person, you can be wiped out.”

“I’m beginning to see that”, he said.

Being Summoned To Testify

English: An attorney impeaching a witness duri...

English: An attorney impeaching a witness during a mock trial competition. (Photo credit: Wikipedia)

I started typing my brief after 5:00 p.m., once all interruptions had left the building.  The next time I looked at the clock it was 10:30 p.m.  I was tired, and the words “Tylenol” and “bed” came to mind.  I decided to call it a night.

As I watched the computer screen shut down in a half daze, I heard the phone ring.  I tilted my head toward the phone in my office, glared at it, and I thought to myself, “It’s either my wife or a client with an emergency.”

Given the potential of the former, I decided to pick up the receiver.

“Attorney Robert LaBre speaking, how may I help you?”  I said.

“Yeah, I have a question about a subpoena I received in the mail today,” he said in manner that sounded like he thought we were simply carrying on a conversation we’d already started.

I leaned back in my leather, executive chair, put my feet up on my desk, and started to ask him questions.

He received a subpoena to testify as a witness in a criminal trial on behalf of the defense.  Apparently the defendant stood accused of first degree home invasion, a felony punishable by up to 20 years imprisonment and $5,000 fine, excluding restitution.

The subpoena came via certified restricted mailing, and he signed for it.  The envelope the subpoena came in provided a cashier’s check for witness fees too.

“So can I get out of having to show up?”  He asked.

“Why can’t you show up to testify?”  I asked.

“I don’t want to miss work.  And I don’t want to get caught up in this criminal trial, that’s someone else’s problem.”

I grinned to myself, “So, it’s not as though it’s impossible for you to show up, you just don’t want to, right?”

“Well . . . kindda,” he said in a squeaky voice.

“Then you can’t skip,” I said.  “You need to be there.  You’ve been paid the witness fees and service came via certified restricted mailing.  Service of the subpoena was proper.

“The only other out you have from being required to testify is if it were impossible for you to be there, such as an emergency.  But even then, you need to contact the attorney who sent the subpoena and let him know your reasons for not being able to attend.”

“But I don’t wanna go.” he said.  “Court scares me.  What’s the consequences if I skip?”

“You could be held in contempt of court,” I said.

“What’s that mean?”

“Jail or fines or both, in an amount the court deems proper.”

“Man, that sounds pretty severe,” he said.

“It is.  But think about the ripple effect you’re failure to appear has on the trial. The attorney who sent it to you might ask for an adjournment until you appeared to testify.

“There’s probably a jury, and by not showing up, you’re wasting their time and the State’s money, not to mention the judge’s patience.

“Now picture this,” I continued.  “You don’t show up.  You’re eventually forced to appear before the judge.  All this time and money has been wasted, and the judge asks you, ‘Sir, why didn’t you appear before the court on the time and date stated in the subpoena?

“And you reply, ‘Well judge, I just didn’t wanna.’  How do you think the judge is going to react?”  I asked as a rhetorical question.

“Probably not so good.”  He said in a low voice.

“That’s an understatement.  You’ll probably feel a sharp pain in your forehead from the gavel bouncing off of it.  My advice to you is to show up and participate.

“Everyone’s nervous about testifying in Court.  It’s no cake walk to take an oath and then tell people what you know about a given situation.  But Court isn’t designed to be a easy, it’s designed to get to the truth.  And that’s all you should do, tell the truth as you know it.  You do that, then no matter what happens, you’ll have no regrets.”