Legal Blog

New HYTA Law

Recently, the Michigan Legislature made what some what call a surprising move…they made life a little bit easier for young criminal defendants.  For years, criminal defendants aged 17-20 have able to take advantage of HYTA – the Holmes Youthful Training Act – as a way of avoiding a criminal conviction from staining their record.  When a youthful offender pled guilty to a certain offense, he or she, upon successful completion of that probation, would have the conviction suppressed from their criminal record.  The determination of whether or not HYTA status would be granted was in the sole discretion of the judge.  However, the new HYTA statute, while not perfect, has opened the door for more youthful offenders to be granted HYTA status.

Under the new statute, offenders up the age of 24 are eligible for HYTA probation.  However, there is a catch…for those aged 17-20, the decision regarding HYTA still resides with the judge.  For those aged 21-23, the decision to allow for HYTA rests not with the judge, but with the prosecutor.  This gives the prosecutors more leverage in negotiating pleas for those who wish to receive HYTA probation.

Defendants who enter guilty pleas to life offenses, traffic offenses, major drug offenses, or criminal sexual conduct charges, are disqualified from receiving HYTA probation.

Those placed on HYTA probation may be required to complete school, maintain employment, be placed on electronic tether, or be subject to a number of other requirements.  There is also the possibility of spending time a special branch of the MDOC, for up to 3 years.  However, there are certain offenses for which a defendant may NOT be sentenced to a term of incarceration.

If you or a family member of friend believe you may be eligible for HYTA probation, contact the criminal defense attorneys at Nessel and Kessel Law.

Why you need a second-parent adoption.

Having your name on the birth certificate is not enough; you need a second-parent adoption.

On June 26, 2015, the United States Supreme Court ruled that denying marriage licenses to same-sex couples violates their 14th Amendment rights; specifically the Due Process and Equal Protection clauses. This meant that once these same-sex couples were issued licenses and were officially married, they would have the same rights as their opposite sex counterparts. As counties across Michigan began issuing marriage licenses and couples began getting married, those same couples were left unsure as how to proceed with respect to their children; specifically what is the best way to protect the second – non-biological – parent’s rights as a parent to a child born during the course of their marriage?

Initially, the consensus was that if the non-biological parent was placed on the birth certificate, they would simply become the second “legal” parent, thus their parental rights would be protected. However, this is absolutely not the case. In fact, the non-biological parent in a same sex marriage is particularly susceptible to losing their status as legal parent of their non-biological child, regardless of whether their name is on the child’s birth certificate.

In order to better understand the problem, it is necessary to understand two legal issues: 1) the definition of “parent” in accordance with Michigan’s Custody Act; and 2) the rebuttable presumption of paternity.

The Michigan Custody Act (MCA) defines a “parent” as “the natural or adoptive parent of a child.”

The rebuttable presumption of paternity is a fairly simple concept; a child born while a couple is married is presumed to be the biological child of the married couple. This presumption is codified in MCL 700.2114(a), where the “parent and child relationship” is defined follows:

“If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.”

However, this presumption may be rebutted by another party, who may claim that they are the actual, natural parent of a child. This is where things can get complicated and where merely having a second parent’s name on a birth certificate (instead of performing a second parent adoption) can get couples into trouble.

The MCA is clear about what defines a parent in the state of Michigan: a person must be either the “natural or adoptive” parent of a child. Having a name on a birth certificate is not good enough. It may be a nice document to get framed, but it does not protect the second – non-biological parent – from having their parental rights stripped.   This could happen in the form of a third party, claiming to be the actual parent, who wants custody of a child. Sadly, this could also come when a same sex-couple’s relationship dissolves and the natural parent does not want the second – non-biological parent – to be in the life of their child. See the case Dana Nessel argued in Harmon v Davis, 489 Mich 986 (2011) for context about the devastating realty of this scenario. Detroit Free Press article

The issue is even more apparent when examined through the lens of the rebuttable presumption of paternity. The rebuttable presumption may be challenged by showing that the second – non-biological – parent is not the “natural” parent of the child. The reason this is such a problem for same-sex couples is obvious as only one spouse in a same-sex couple can be the biological parent of a child.

Fortunately, there is an incredibly simple way to avoid the very serious complications and pitfalls of not being considered a true parent even when your name is already on a child’s birth certificate. Second-parent adoption is not only the easy solution, it is the only solution to the problem. Once you complete a second-parent adoption, you are considered a parent to your child under Michigan law. Problem solved.

The area surrounding the legal rights of same-sex couples and their families is a new and sometimes confusing one. However, the attorneys at Nessel and Kessel Law are the most knowledgeable and experienced attorneys in the State of Michigan on these matters. If you wish to discuss second-parent adoption to protect yourself and your family, contact us at (313) 556-2300 or email us today.

 

You Might Quality to Have Your Name Removed from Michigan’s Sex Offender Registry

Recently, the laws surrounding Michigan’s sex offender registry have come under intense scrutiny. Proponents of such a classifying system argue that registries help parents and other upstanding citizens keep track of violent sexual offenders and pedophiles who prey on children, but those opposed point to research that suggests otherwise.

Sex offender registry lists may, in fact, do little to protect communities from danger, and instead create trouble and torment for those nonviolent offenders who are unlikely to reoffend. (It’s interesting to note that the state of Michigan has the fourth highest per capita number of offenders on its list; and is only one of four that requires those convicted of public urination to register — seems crazy, right?)

Many argue that Michigan’s sex offender registry laws are too broad, and maybe even downright unconstitutional. That: That’s for someone else to decide on a different day, and here what we’ll talk about instead is this:

How to Remove Your Name from Michigan’s Sex Offender Registry

If you were convicted of a sex crime in Michigan, and were required to add your name to the list of sexual offenders in the state, know that you may qualify to petition the court, to have your name removed from the sex offender registry.

Do you know what kind of information the state has on you?

More than you might think.

The sex offender registry in Michigan contains:

  • Your name
  • Your place of employment,
  • Your mugshot,
  • The crime(s) that put you on the list
  • Your car’s make, model, color and license plate.

Do I qualify to petition the court to have my name removed?

Maybe.

Thanks to the Sex Offender Registry Act (SORA), Public Act 17 and Public Act 18, of 2011, certain sexual offenders in Michigan can petition to have their names removed from the state’s sex offender registry; prior to the Act’s passage in 2011, this was not possible, for any reason whatsoever.

Now, things are different.

Tier I offenders — those whose offenses were the least severe (e.g., indecent exposure, most cases of fourth degree criminal sexual misconduct, and possession of child pornography) — may petition the court to have their names removed from the Michigan sex offender registry list after 10 years. Before 2011, such offenders would be required to wait 15 years.

Tier III offenders are those whose crimes were more severe (e.g., first degree criminal sexual misconduct, and child molestation), and are required to register for life. However, under SORA, Tier III offenders may petition the court to reduce their registration sentence to 25 years — but only if the offender was a juvenile at the time of offense.

With that in mind, juvenile offenders — those convicted before July 1, 2011, and those who were under the age of 14 at the time of conviction — may petition the court to have their names removed entirely.

You might qualify to have your name removed from the sex offender registry.

The Sex Offender Registry Act of Michigan makes it possible to have your name removed from the sex offender registry, so there is hope. But it’s not a perfect process, nor an easy one. And you only get one shot. This is why it’s absolutely necessary to have an experienced attorney in your corner as you petition the court for removal from Michigan’s sex offender registry.

New Expungement Bill Signed

In a rare move by the Michigan Legislature and Governor Snyder, a bill was signed into law today that actually makes like a bit easier for those with a criminal record.  The new bill makes it possible for a person with 2 misdemeanors OR 1 NON-VIOLENT felony to have the convictions removed from their record.

Under the new law, once 5 years from the date of sentencing have passed (or 5 years after any release from incarceration, whichever is later) a person may begin the process for an expungement.  If your criminal record consists of 2 misdemeanors and 1 felony, you can now petition to have the felony expunged.  Further, if a person has 2 misdemeanors on their record, they may now petition to have 1 or both convictions set aside.  The new law also allows for an expungement even for an assaultive crime, which was not permitted before.  It requires that the prosecution notify the victim and that he/she be allowed to be present and speak at the expungement hearing.  There are, of course, certain exceptions for crimes that will not be expunged.  These include convictions involving Criminal Sexual Conduct (though not CSC 4, depending on the circumstances), major drug crimes, human trafficking, and any crimes where the punishment is up to life in prison. 

Everyone knows that having a clean criminal record is key to gaining employment, entering higher education, and even a basic sense of dignity.  If you, a family member, or friend believes they may be eligible for an expungement, contact the attorneys at Nessel and Kessel Law today.

 

Here is a link to a story in the Free Press as well as a link to the new bill.

Use of Force by Law Enforcement

Generally we at Nessel and Kessel Law will refrain from editorializing on our blog.  We find it’s more useful to cite new updates in the law, discuss our own cases, or discuss meaningful cases that are pending cases before the United States Supreme Court.  However, considering the recent developments in Missouri and New York, we feel it’s time to comment.

It should first be said that the majority of law enforcement officers correctly, legally, and properly do their duty.  However, as is always the case, a few spoiled apples will ruin the bunch. 

In the Michael Brown case, the prosecutor who was in charge of presenting the evidence explained to the nation that there was an abundance of conflicting testimony.  He also mentioned that the some of the testimony conflicted with the physical evidence.  He said that based on these two factors, as well as others, that there was no enough evidence to show probable cause that the officer committed a crime.  Now here’s where I (Chris Kessel) get lost…every day in Michigan courts hold preliminary exams.  These are hearings where the prosecutor presents testimony in the hopes that they are able to establish probable cause that a crime was committed and that the defendant committed that crime.  Day after day defense attorneys impeach the credibility of witnesses that are called by the prosecutor.  We (attorneys) are able to show that the testimony of witnesses conflicts with the physical evidence, sometimes in very obvious ways.  When it comes to argument, we will vigorously argue that the only evidence against our client is the “suspect” testimony presented by the state.  We are then told by judges, of all races and ages, “well counselor, the burden of the people is only ‘probable cause’ and the witnesses testified that the defendant did _____.  Even though you pointed out several inconsistencies, that’s a question of fact for the trier of fact…”  Let me be clear, as long as a witness testifies that the defendant did SOMETHING illegal, despite the fact that they have been impeached by the physical evidence as well as their own testimony, the case will be sent to trial because the witness testified to X. 

Now as much as it pains me, the judges are usually correct…but my concern is this: if there is a probable cause when conflicting evidence arises, creating a “question of fact for the trier of fact” Michigan, why does the same standard not apply in Missouri?  

We know less about the unfortunate case of Eric Garner, mostly because the story is so fresh.  But for those that don’t know, Mr. Garner died at the hands of several members of the NYPD.  The entire incident was captured on film.  Yes, the ENTIRE event was filmed.  There is no need for speculation regarding the events in New York, we can see them unfold.  And not just part of the story or a section of events.  We can see the police approach Mr. Garner, try and subdue him, then choke him.  I was not on the grand jury (obviously), but I cannot imagine how there was not probable cause to charge this officer. 

This is not – should not – be about taking out frustration about police misconduct on a few rogue officers.  It’s about justice.  In both of these cases, men died and their killers don’t even have to face a jury of their piers.  That’s not justice.  It’s institutional protection.  Which is a serious problem. 

 

Detroit Attorney Dana Nessel Wins 2014 State Bar of Michigan Champion of Justice Award

Detroit Attorney Dana NesselGaining great ground in the fight for marriage equality inside Michigan courtrooms is certainly amongst attorney Dana Nessel’s most proud professional achievements, and legal leaders across the state are starting to take serious notice.

Last month, Nessel received word from the State Bar of Michigan Board of Commissioners informing her that the legal team behind the landmark DeBoer v. Snyder case was to be honored as recipients of the 2014 Champion of Justice award. According to the organization’s website, only five of these prestigious awards are given each year to practicing attorneys and judges as nominated by the State Bar of Michigan.

The State Bar of Michigan takes into account the following criteria when considering award recipients:

  • Member in good standing of the State Bar of Michigan for at least ten years or more.
  • Strong adherence to the highest principles and traditions of the legal profession with unwavering integrity.
  • Superior professional expertise.
  • Making an outstanding professional achievement that provides benefits to the local, state, or national community in which the lawyer or judge lives.

Nessel along with the other four winners will be honored at a banquet set to be held in Grand Rapids in mid-September 2014. The entire team at Nessel and Kessel Law is very proud of Dana, who has achieved so much not only for our firm but for the greater good of the community as well!

Obtaining a Same-Sex Divorce in Michigan

As the Mark Slackmeyer character once quipped in the Doonesbury comic strip, the reason we need gay marriage is so we can have gay divorce. The unfortunate fact is that some same-sex relationships, even of long duration, do not last. So until recently, without the right to marry, the rights and protections of divorce did not extend to same-sex couples.

While many states have now legalized same-sex marriage and some others now recognize marriages performed in other states and countries, questions are naturally starting to emerge about how this changing patchwork of laws applies to Michigan couples. For instance, if a lesbian couple residing in Michigan wishes to end their marriage, they must go to a jurisdiction that recognizes their marriage in the first place. That still leaves Michigan out, making the process potentially far more difficult and expensive, even when the couple has agreed to all terms.

Making matters more complicated, some states that may be willing to grant a divorce to same-sex couples require the couple to first establish residency there, effectively barring most couples from taking advantage of the law. On top of that, the laws change state by state on seemingly a weekly basis, and the courts are facing a wave of new cases in the near future. A lot remains to be settled.

Nessel and Kessel Law successfully argued the DeBoer v Snyder case before the Michigan Supreme Court, cementing their role as the leader in LGBT rights cases. While the federal and state courts sort out the implications of this landmark case, Nessel and Kessel Law has been exploring options for Michigan residents who wish to end their same-sex marriages performed in other states or countries, without having to travel there or establish residency. If either you or your spouse lives in Michigan and wish to dissolve your marriage, rely on the leadership and experience of Nessel and Kessel Law for guidance in these turbulent times. For the best legal advice and representation, committed to protecting the rights of LGBT couples, contact our law firm today at 313-556-2300.

Same-Sex Couples in Oakland County MI File Adoption Applications

In the days since the landmark decision by U.S. District Judge Bernard Friedman that deemed Michigan’s ban on same-sex marriage unconstitutional, the air of change seems to be blowing in the Mitten state. Although a stay has been placed on the ruling, Governor Rick Snyder has said that the 320 same-sex marriages performed beforehand were legal. Even though this is a small number of LGBT couples in Michigan looking to tie the knot, the couple hundred that are deemed valid still represent major changes.

This is especially true where adoption is concerned, as it now becomes an option for same-sex couples never enjoyed before. While Governor Snyder also said that those marriages carry no rights because of the stay on Judge Friedman’s ruling, the Oakland County adoption office has decided to name caseworkers to LBGT couples who have filed applications to adopt. Just like they do for heterosexual couples, the caseworkers will perform background checks and home evaluations. According to Lauren Howard, chief of the Oakland County office, the fight over adoption will largely be left to the courts. “It’s the judicial branch that determines whether there can be an adoption — a judge determines that,” said Howard.

Reports from the county state that at least five or six other same-sex couples who were married on Saturday have filed adoption applications, but many more are also expected to do so in the upcoming days. Those that choose to submit an application will undoubtedly need legal counsel to act as a guide throughout the complex legal process, and it is always best to opt for a skilled Detroit adoption attorney with experience handling Michigan same-sex adoption cases. Nessel and Kessel Law was the legal team that stood behind April DeBoer and Jayne Rowse in their successful landmark case, and are now ready to help others interested in second-parent adoption. For the best legal advice and legal representation that is committed to protecting the rights of LGBT couples, contact our law firm today at 248-721-0296.

Obama & Fed Allowing Same Sex Marriage in Michigan, State Won’t

Despite a federal appeals court placing a stay on same-sex ceremonies in Michigan, the 300 homosexual couples who married beforehand will be permitted as valid unions. According to the U.S. Attorney General Eric Holder, these same-sex couples “will not be asked to wait for further resolutions by the courts.” Holder also added that Michigan Governor Rick Snyder “has made clear that the marriages that took place on Saturday were lawful and valid when entered into.”

For the time being, couples who married on Saturday in four major Michigan counties (Washtenaw, Oakland, Muskegon, and Ingham) will be allowed the exact same standing federal income and estate tax benefits that heterosexual couples enjoy. Still, a court could reject that standing at some point. While these marriages are legal under the eyes of federal law, state law as still yet to sort out its recognition. Statements from Governor Snyder imply that the state doesn’t intend on extending these rights and benefits to those couples until the legalities of same-sex unions are defined and recognized by state courts in Michigan.

The wave of same-sex couples seeking marriage came on Saturday following a the ruling from U.S. District Judge Bernard Friedman that deemed the state’s ban on these unions unconstitutional. Despite the fact that Michigan Attorney General Bill Schuette filed an appeal and a panel from the U.S. 6th Circuit Court of Appeals stayed the ruling, the state will recognize the 300 marriages performed beforehand.

The experienced Detroit attorney who successfully represented Jayne Rowse and April DeBoer in their challenge of the state’s same-sex marriage ban applauded the federal government’s involvement and pro-marriage stance. Dana Nessel of Nessel and Kessel Law called the support from the Obama Administration “magnificent,” explaining “We expect no less. The federal government has been great. I stand by my previous position that they are all legally married, just like any others.”

Nessel did express criticism for Governor Snyder and the state’s attorney for delaying and fighting against gay-marriage legalization in Michigan. She noted that the governor is particularly contradictory as he recognizes the 300 marriages performed before the stay, but refuses to validate them. “It’s so offensive on a number of levels, particularly on a legal level,” she explained.

After the stay was extended on Tuesday, it is now likely that the case could end up before the U.S. Supreme Court.

Those with questions regarding same-sex marriages in Michigan and second-parent adoptions should contact the knowledgeable legal team at Nessel and Kessel Law. As the law firm that spearheaded the case against the statewide ban, these skilled attorneys will not only best be able to answer any questions but also provide the best representation possible. Contact us today at 313-556-2300 to discuss your case today!