By Cynthia Price
Legal News
It may seem paradoxical: there is already a statute that requires a family court bench, but the current number one goal of the State Bar of Michigan Family Law Section Council is to ensure a dedicated family court bench.
That is because the statute, the Revised Judicature Act 236 of 1961, further revised in 1996, 1998, and later, allows courts to rotate judges on or off of the family court division bench.
According to the current section chair, Elizabeth Bransdorfer of Mika Meyers, that means judges have varying degrees of commitment to and passion for family law, and that there is a high likelihood judicial candidates will have no experience in family law.
In a July 2017 article in the Michigan Bar Journal, family law attorney and later Wayne State University Law Professor Scott Bassett wrote about the history of family court creation. A strong emphasis in the article is on the fact that the original proposal included a nonrotating judiciary.
After a proposal Bassett wrote, based on earlier work by many lawyers and academicians, was adopted by the Family Law Section in the mid-1980s, he and a law student looked at existing family law courts in Delaware, New Jersey, Rhode Island, and South Carolina. They found that satisfaction with those courts was weakest in New Jersey, which had the only rotating family court bench.
However, based on compromise, the legislation passed and signed into law in 1996 changed the original proposal to allow for a rotating bench. In his 2017 article, Bassett deemed that a mistake. He noted that legislation has twice been proposed to remedy it, and twice failed to go anywhere.
As Bransdorfer points out, though the legislation allows rotation on and off the family division bench, “It also has language that that has to be consistent with the goals of the family division.” A subsection under 600.1011 says the required family court plan “shall provide that a judge's service pursuant to the family court plan be consistent with the goal of developing sufficient judicial expertise in family law to properly serve the interests of the families and children whose cases are assigned to that judge.”
That is the rationale behind the current Family Law Section Council strategy pursuing changes on a variety of fronts. “It’s entirely possible that we can get enough done with the current structure, but of course if we can get the legislature to make changes, that would be ideal,” says Bransdorfer.
Judge Tina Yost Johnson of Battle Creek, an active member of the section council, put together a program on the subject as part of the section’s annual meeting last September, and Michigan Supreme Court Justices Beth Clement and Megan Cavanagh attended.
Judge Yost Johnson has agreed to develop a similar program for this year’s annual meeting and put in an extra push to invite Michigan senators and representatives. to attend.
At the same time, as a result of Justices Clement and Cavanaugh bringing it to the attention of MSC?Chief Justice Bridget McCormack, Bransdorfer said, there is a possibility the court may appoint a task force to study the subject. It would be in keeping with the language of the statute if MSC and the State Court Administrative Office were to direct the courts to stop the practice of judicial rotation.
Since judicial appointments are important, section members have also approached Governor Whitmer, who in turn asked them to recommend a set of guidelines for appropriate experience and training of potential appointees.
The section’s current advocacy pursuit falls under its Twenty Year Review Committee, co-chaired by Brandsdorfer and Judge Yost Johnson.
Says chair-elect Sahera Housey, herself a referee in the Oakland County Court system, “Even just to be a referee, there’s a test you have to take to see if you’re qualified.” Housey, who notes that people with a family law “heart” may not be drawn to running for judge because they fear being reassigned, was formerly a family law practitioner in solo and small firm settings.
The subcommittee is reviewing referee qualifications, what other states do, and what section members think.
The Family Law Section also seeks to address secondary trauma in members and others who work with traumatized people. “The section can and should recognize that real camaraderie and mutual support are in the best interests of all family law attorneys,” says Bransdorfer.
As she notes,the section council is often distracted by being asked to deal with unexpected issues.
One is what family lawyers call “trolling,” or as an attorney called it in a letter “family-law-ambulance-chasing.”
Some attorneys search divorce filings in order to offer services immediately to the corresponding party, which the section opposes for a number of reasons, including the possibility it could alert an abusive partner before protective measures are instituted.
The section council addressed this in response to the introduction of HB?5296, which states that “a complaint for divorce... shall not be made available to the public until the defendant has been served with or received notice...” Its January meeting recommended revision of what they considered vague language.
The most recent Family Law Section meeting, held in Ann Arbor March 7, spent a lot of time in debate about other bills and proposed bills brought before it by the legislative committee.
These included impassioned discussions about Do Not Resuscitate orders and the circumstances under which videos of courtroom proceedings should be available.
A list of section policy positions can be found at: www.michbar.org/sections/fampp.
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