The Michigan Supreme Court issued a 5-2 decision refusing to hear an appeal of Mabry v. Mabry, a case involving the rights of the non-biological parent of three children.  Read more about this decision and my comments here:

Bloomberg BNA Family Law Reporter Article - 8-9-2016

Christine Yared

Hate Crimes

Hate Crime Laws

News article.

The federal hate crime law, The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (18 U.S. Code § 249), criminalizes violent acts and attemp

ts to commit violent acts undertaken with a dangerous weapon when those acts occur because of the actual or perceived race, color, religion, or national origin of any person. It also criminalizes acts of violence and attempts to commit violent acts undertaken with a dangerous weapon when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person if the crime was in or affected interstate or foreign commerce.

This law was passed in 2009 in response to the fact that federal authorities were unable to prosecute two horrendous hate crimes under the federal hate crime law which existed at the time.

In one case two white men tortured and killed Matthew Shepard, a student in Wyoming, because they believed he was gay. In the other case two white supremacists tied James Byrd, Jr., an African American man, to the back of a truck, dragged him through the streets, eventually decapitating him. If you want to obtain more information about these two cases or make a donation contact the Mathew Shepard Foundation or the James Byrd, Jr. Memorial Scholarship at Rice University. The links are:

http://archive.adl.org/combating_hate/byrd_speech.html#.Vw5c4hMrIvg

http://www.matthewshepard.org/

Michigan’s hate crime law is called the ethnic intimidation law (MCL 750.147b) criminalizes the malicious intimidation or harassment of another because of the person’s race, color, religion, gender, or national origin. The law applies when the person engages in physical contact, damages property or threatens to do so. The ethnic intimidation law also creates a basis for civil liability.

If you, or someone you know was the victim of a hate crime you should take the following steps:

(1)        report the incident to your local police agency, and the FBI office in your state;

(2) report the incident to a nonprofit organization that focuses on hate crimes or the rights of the victim’s race, color, religion, national origin, disability, sexual orientation, or gender identity, such as

NAACP | National Association for the Advancement of …

(3)        consult with a civil rights lawyer to consider civil liability options.

This case was based on the City of Grand Rapids’ retaliation against two female police officers. State and federal law prohibit an employer from retaliating against an employee for engaging in their legal or constitutional rights. For example, the employer may not retaliate against an employee for making a charge, filing a complaint, testifying, assisting or participating in an investigation, proceeding or hearing relating to these laws. The laws prohibit retaliation involving any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. If you believe your employer has engaged in discrimination, retaliation or sexual harassment you should take the following steps in this order:

(1) consult with an employment law attorney once you become aware of the actions;

(2) immediately read your employee handbook and follow your employer’s procedure for making a complaint; and

(3) if your employer does not resolve the problem, file a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days or with the Michigan Department of Civil Rights (MDCR) within 300 days.

Relevant laws

Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.
Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.

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I represented Laura Stiles, the non-biological mother seeking custody rights of her youngest child. The case was filed in 2014 and the biological mother filed a motion to dismiss the case arguing that the non-biological parent did not have standing to file the lawsuit. This case was decided before the United States Supreme Court’s 2015 marriage equality case, Obergefell v Hodges. In a ground-breaking opinion, Judge G. Patrick Hillary ruled:

“This court has doggedly protected the best interest of children with each and every decision from the bench… When I am applying the principles of equity and protecting the best interests of a child, it is this Court’s ruling that Ms. Stiles must be recognized as a parent…”

Ms. Stiles was awarded joint legal and joint physical custody of her son. Judge Hillary’s pre-Obergefell decision was both courageous and consistent with the best interests of the child.

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Christine Yared

Same-Sex Child Custody Case

Custody Battle Video

I represent Joy Phillips in her case to obtain custody and parenting time for her two children. Joy and her former partner have two children ages 7 and 10 who share both of their last names. On September 14, 2015, Joy’s former partner cut off her parenting time with her children. I filed a complaint for custody and parenting time. The biological mother filed a motion to dismiss the case arguing that Joy did not have legal standing. On March 25, 2016, Judge Kathleen A. Feeney issued a significant decision denying their motion to dismiss the case and ruling that Joy is entitled to an evidentiary hearing to determine if she is an equitable parent.

Judge Feeney ruled:

“It directly follows that if this Court, as a representative of the State of Michigan, were to deny the availability of the equitable parent doctrine–a marital benefit–to Phillips, such an action would also violate the Equal Protection Clause. The unfortunate reality is that the Supreme Court’s decision in Obergefell came too late for many families. Same-sex couples in Michigan who desire to commit to each other and raise children as part of a nuclear family were, until June 26, 2015, forced to do so without the benefits and protections afforded to married couples. Children of same-sex couples would grow up with two parents, as far as they knew; unfortunately for them, one of their perceived parents was, in the eyes of the law, a legal stranger. This circumstance was a natural product of the barriers precluding same-sex couples from exercising their fundamental right to marry. This Court finds that it would be unacceptable and inequitable to allow the vestiges of this unconstitutional circumstance to linger any further.”

This ruling is a critical victory for Joy and other similarly situation lesbian and gay parents. Unfortunately, Joy’s former partner continues to deny parenting time. The date of the evidentiary hearing has not yet been set.

Grand Rapids Press articlehttp://www.mlive.com/news/grand-rapids/index.ssf/2015/12/should_the_same_child_custody.html

In April 2015, the United States Supreme Court will hear oral arguments of an appeal of the Sixth Circuit Court of Appeals decision in DeBoer, et al., upholding the ban on same-sex marriage in Michigan, Ohio, Tennessee and Kentucky, the four states in the Sixth Circuit.

Sixth Circuit Court Judge Jeffrey Sutton, writing for the majority, explained the court’s reasoning for ruling against marriage equality, stating:

When the courts do not let people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair minded way.

The court’s job in this case was to decide a case about states’ rights, which affected the legal rights and well-being of lesbian and gay families in four states. Instead two federal judges placed the labeling of hero status as a more important legal consideration than the rights of these families and their children.

The court’s “hero” framework is condescending, misleading and an abrogation of judicial responsibility. It is not the job of a federal judge to be concerned with who might later be viewed as a hero in the underlying social issue, or to decide cases based on a desire to influence ultimate hero status. Dissenting Judge Martha Craig Daughtrey recognized this point, writing that Judge Sutton’s majority opinion “would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” noting that he treated the families as abstractions, and concluding that the opinion failed to grapple with the case’s constitutional questions.

The court’s assertion that change occurs through “customary political processes…by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair minded way” is not accurate. It is difficult to think of a time in our nation’s history where “new social issues” such as desegregation in schools and public accommodations, voting rights for women and African Americans, discrimination, sexual harassment, disability accommodations, the right of married and single people to use contraception, and other issues were resolved without litigation playing a significant role in the social change.

The court’s concern that a victory for the gay litigants would “perpetuate the idea that the heroes in these change events are judges and lawyers” implies that people are unable to identify their heroes and need the court’s assistance in doing so. People who have been oppressed by society because of their race, gender, sexual orientation, gender identity, religion, disability, or other condition are capable of distinguishing among the actual heroes of their movement; the people, including judges and politicians who did the right thing when given an opportunity; the judges and politicians who only took action when it was politically expedient and those who continue to fight against progress.

Some federal judges have achieved the status of greatness because of the quality and significance of their work. Chief Justice Earl Warren worked hard to convince his colleagues that a unanimous vote in Brown v Board of Education was in the best interest of our nation. His wisdom and action in this regard made him a great Chief Justice.

Instead of contributing to the advancement of social justice, Judge Sutton used irrelevant, inaccurate hero and social change analysis, to avoid addressing the lesbian and gay litigants’ rights to equal protection and due process, while admonishing them to be thankful that the court was giving them additional time to engage in free speech with straight people and compete for hero status.

There is a saying among lawyers:

When the facts are on your side, pound the facts;
when the law is on your side, pound the law;
when neither the facts nor law are on your side, pound the table.

Judge Sutton’s hero analysis sounded like a loud pound on the table.

Christine Yared

Black Lives Matter- Ferguson, Missouri

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Black Lives Matter - Ferguson, Missouri

I organized this panel talk to challenge people to understand the factors which continue to contribute to the ongoing police shootings of unarmed black men and women and to inspire people to take steps to create change. One of the issues I addressed was the way some prosecuting attorneys use the grand jury process to shield them from making a decision or to obtain support for their view that the officer should not be charged. I have heard prosecutors commenting that the decision was “in the hands of the grand jury,” as if they were talking about the deliberations of a jury after a trial.

There are important distinctions between a grand jury and a trial by jury. First, in a typical criminal case where prosecutors use a grand jury, the prosecutor has a belief that the defendant is guilty, or likely so, and they are testing their evidence. The prosecutor does not aimlessly gather evidence and throw it to the grand jury, instead they strategically gather and present the evidence which points to guilt.

Second, in some of these police shooting cases the suspect has testified. A qualified defense attorney would never allow the client to testify during a grand jury hearing without invoking their Fifth Amendment right to remain silent unless the testimony related to a deal or early plea bargain with the suspect or if the defense attorney knows that the prosecutor does not want the indictment. Thus if there was no plea bargain or other legitimate deal, it is reasonable to conclude that the process was rigged and that the prosecutor wanted the grand jury to vote against indicting the suspect.

Third, the purpose of the grand jury is to test whether the prosecutor has enough evidence to support the charge, not whether the suspect is guilty. According to the Constitution, guilt can only be determined in an open trial, where the defendant is present, has the right to counsel, has the right to call witnesses and has the right to cross-examine witnesses. A grand jury is closed and one-sided. The suspect and defense attorney do not have the right to call or cross-examine witnesses, to present or challenge evidence, to make arguments or appeal the decision. These abuses and the potential for abuse must be addressed by education, political pressure, protest and reform if we want a society which respects the rights and lives of African Americans.

See the article here:

http://www.lanthorn.com/article/2015/02/ferguson-panel-explores-police-brutality

Christine Yared

LGBT Equitable Parent

Non-biological Parent as Equitable Parent

On December 15, 2014, Michigan Lawyers Weekly published an article about one of my cases. Below is a link to the published article and my blog about the case.

Second parent adoption provides a legal method for same-sex couples raising children together to both have equal legal rights to their children. Michigan does not have a law which prohibits second parent adoptions for same-sex couples, yet it also does not have a law authorizing this type of adoption.

A small number of judges in some Michigan counties were quietly approving same-sex adoptions until 2002 when then Michigan Supreme Court Chief Justice Maura Corrigan stopped the adoptions by telephoning the Chief Judge of the Washtenaw County Court and telling him to put a stop to second-parent adoptions. The judge handling the second parent adoptions rightfully refused. We live in a country where laws are required to be made and interpreted through the legislative and court systems, not via the telephone. Yet Washtenaw County Chief Judge followed Justice Corrigan’s telephone demand by taking over adoptions himself and stopping the second parent adoptions. Justice Corrigan’s actions left children of same-sex couples without the right to have legal connections to both of their parents.

Earlier this fall, I had a case which illustrates the problem with the current state of the law in Michigan. The facts involved the separation of two women who, while living in a committed relationship, had two children through the use of an anonymous sperm donor. When their first child was born, the non-biological mother legally adopted their child. The non-biological mother could not adopt their second child however, because by that time the county where they obtained their first adoption, Genesee, was no granting second parent adoptions for same-sex couples.

Years later when the couple separated they were left with a unique situation. The two women had equal parental rights with their oldest child, but the non-biological mother did not have parental rights related to their youngest child. Yet the children were raised as siblings who shared the same two parents.

I filed a motion on behalf of my client, the non-biological mother, asking the court to conclude that she is an “equitable parent” of their youngest child. The “equitable parent” doctrine is a legal concept which allows a court to provide full legal parental rights to a person when the facts present a situation where doing so would be in the best interest of the child. The equitable parent doctrine has been primarily used in Michigan in cases involving heterosexual couples.

The biological mother’s attorneys argued that a 1999 Michigan Supreme Court ruling, Van v Zahorik, prevented the court from concluding that the non-biological mother was an equitable parent. In Van, the court limited the use of the equitable parent doctrine to the context of legal, and thus heterosexual, marriages. I argued that the facts in my client’s case could be distinguished from Van and that the court should make a decision consistent with the best interest of the child.

Kent County Family Law Judge G. Patrick Hillary granted my request. The judge emphasized that he was not making social policy but instead applying the facts of the case to the “best interest of the child” standard which is the foundation of Child Custody Act of Michigan. The judge noted several distinguishing facts. In this case, prior to the birth of each child, the women signed a co-parenting agreement prepared by an attorney stating their intent for them to be recognized as equal parents. In addition, the women prepared estate planning documents naming each other as guardians of their children. Since the women used anonymous sperm donors there was not any other person is the child’s life claiming parental rights. Further, the non-biological mother continued to actively parent both children during the two years following their separation, following a 50%/50% shared parenting time schedule and thus contributing financially to both children. Finally, during that same time the non-biological mother paid 50% of the costs related to both children.

In addition to being courageous and consistent with the best interest of the child, Judge Hillary’s ruling is instructive for LGBT parents and those planning to have children. Below are some recommendations which flow from the judge’s ruling.

1. Consult with a qualified, LGBT family law attorney in Michigan. Do not rely on standard legal forms contained in books or found online which are not drafted by a qualified lawyer who practices law in Michigan.

2. LGBT parents should sign co-parenting agreements prepared by a knowledgeable Michigan attorney, if possible prior to the birth of the child. Keep in mind that it will still be beneficial to sign a co-parenting agreement after the child’s birth, even if years have passed. Having a correctly drafted agreement is always better than not having one.

3. LGBT parents should also sign estate planning documents prepared by a knowledgeable Michigan attorney.

4. The use of anonymous donors is beneficial because a judge can issue orders without worrying about the existence of a known donor appearing in the future and asserting parental rights. Of course, the decision of whether to use a known or unknown donor is personal and complex.

5. If you use a known donor consult with a qualified, LGBT family law attorney in Michigan and if possible, enter into a written agreement with the donor.

6. Maintain regular consistent parenting time with your child after you and your partner separate. If that is not possible, seek qualified legal advice immediately. If your attorney informs you that you do not have any options, you need to find an attorney who understands the various options which do exist.

On December 17, 2014, I was interviewed by Cynthia Canty for a Michigan Radio show, “Stateside with Cynthia Canty” about my book which I am completing, “Gay Teacher: A Story About Love, Hate and Lessons Yet To Be Learned.” The interview segment was aired on December 18 at 3:25 pm and will also be aired at 10:25 pm.

http://michiganradio.org/post/story-gay-high-school-teacher-illustrate-lack-civil-rights-protections

The following is information regarding my current book project, Gay Teacher:  A Story about Love, Hate and Lessons Yet to be Learned.  I would appreciate your support via Kickstarter to assist with funding this important project!  https://www.kickstarter.com/projects/1334400187/gay-teacher

Gerry Crane’s Story

Nineteen years ago two men, Gerry and Randy, exchanged vows of love and commitment on a fall Saturday in 1995 in Grand Rapids, Michigan. The following Monday, Gerry returned to his job as a music teacher at Byron Center High School and discovered he had been outed by a student. During the weeks and months which followed, the once much loved and lauded teacher, was harassed, threatened, and ostracized by parents and other educators.

Parents pulled their children out of his classes. For eight months, Gerry was repeatedly called into the office to address false accusations.  Colleagues gave him the silent treatment. School officials mailed Focus on the Family’s anti-gay propaganda to parents in the school district. The school board issued a formal statement: “Homosexuals do not constitute proper role models as teachers.”

Many religious leaders and believers in the community cited the Bible to justify their condemnation of Gerry, others remained silent, and a small number of religious leaders formed a group, Concerned Clergy, to offer an opposing Biblical position and start a dialogue about faith and homosexuality in the community.

In spite of the fact that Gerry’s struggle as a gay teacher received national news coverage and there was some organized support for him, the harassment continued. At the end of the 1995-1996 school year Gerry was forced to resign. Six months later Gerry Crane died from a stress- related heart attack at age 32.

Many people were outraged with the way Gerry was treated by the school district, many parents and others in the community. Yet what would we say to Gerry if he returned today and learned that nineteen years later teachers are still losing their jobs for merely being gay; lesbian, gay, bisexual and transgender (LGBT) teachers still do not have legal protections in most states; and LGBT students continue being bullied, some to the point where they are suicidal.

Along with telling Gerry’s story, my book includes discussion of the current climate for LGBT teachers and students and the change which remains to take place. Gerry’s story needs to be told.

Why am I writing this book?

Gerry’s story needs to be documented in part because it is a significant segment of LGBT and Michigan history.Gerry’s journey is representative of what hundreds of thousands of LGBT people have experienced in the past 50 years. Gerry’s story was covered on a regular basis by media in West Michigan as it was unfolding:  The Grand Rapids Press reported that it received more letters to the editor about Gerry’s case than any other issue it covered in its then 104-year history. Eventually the media coverage became national, including Time Magazine and the television program 20/20. My research includes the details, influences, perspectives and context which can only be unearthed by engaging in a more comprehensive investigation of the facts.

I also want to present Gerry’s story for LGBT educators and students. When the school board issued a formal statement that “homosexuals do not constitute proper role models as teachers” this declaration was directed at Gerry, but also felt by other LGBT teachers and LGBT students, at an age when many were starting to come to terms with their personal identity. The students who attended Gerry’s high school during this time witnessed some of the important adults in their lives and community direct anger and rage at one of their favorite teachers, at the same time they witnessed others reacting with love and a sense of justice. The effects of this experience on other members of the community will be discussed in this book. The book also discusses the current climate in which LGBT educators continue to work.

I want to chronicle Gerry’s experience because anti-LGBT discrimination and hate ended his career and cost him his life. A young, dedicated, passionate, talented music teacher and a man of exceptional character died at age 32 as a result of discrimination and hate. Gerry’s story deserves to be told.

In my book I also want to tell the story of a community that was greatly affected by this vicious, public, personal condemnation of Gerry. In particular I want to detail the story of religious responses to this situation. Many religious leaders and others in the community cited the Bible to justify their view that a gay person should not be able to work as a public school teacher. A large number of religious leaders and believers remained silent. As noted above, a small group of religious leaders formed a coalition, Concerned Clergy, to offer a differing Christian and Jewish view and initiate a dialogue within the community about faith and homosexuality.

Finally, I am motivated to write this book because I have a passion for history which I inherited from my father. I find history to be informative, inspirational, thought-provoking and in an odd way comforting. As aptly stated by George Orwell, “The most effective way to destroy people is to deny and obliterate their own understanding of their history.” Gerry’s story and the stories of others in the LGBT community must continue to be told.

How does a story about a gay teacher in the mid-1990’s relate to life in 2014?

The recent surge in the number of states which are legalizing same-sex marriage has led many people to conclude that LGBT-related discrimination is a phenomena which can only be seen in our nation’s collective rear view mirror. This is a misleading conclusion.

The Gay, Lesbian, and Straight Education Network’s (GLSEN) 2013 National School Climate Survey examined the middle and high school experiences of LGBT youth nationally and found that:

-74% of LGBT students were verbally harassed in the past year because of their sexual orientation

-36% of LGBT students were physically harassed (e.g., pushed or shoved) in the past year because of their sexual orientation

-17% were physically assaulted (e.g., punched, kicked, injured with a weapon) in the past year because of their sexual orientation

-30% of LGBT students missed at least one day of school in the prior month as a result of feeling unsafe or uncomfortable because of the hostile LGBT climate at school

In 2013, The Advocate reported a study which revealed that lesbian and gay teachers are less likely to challenge LGBT-based bullying in schools because they feared for their jobs. The teachers’ fears are warranted:

-in 2013, gay elementary school principal Tom Klansnic was fired by the North Gresham Elementary School in Gresham, Oregon after he revealed that he was gay

-in 2013, the Hesperia Unified School District in California refused to renew lesbian teacher Julia Frost’s contract after she helped LGBT students speak out about harassment perpetrated by other teachers

-in 2012, high school principal Cynthia Davis was fired from the Paradise Valley Unified School District in Arizona after a “concerned community member” submitted a letter stating she suspected Davis was a lesbian and thus living a “questionable lifestyle”

-in 2009, lesbian high school teacher Brook Johnson was fired from the Corunna Public School District in Michigan for allowing the school’s Diversity Club to put up a display honoring LGBT History Month

These are just a few examples.

The trauma that Gerry suffered — and even his death — were not enough to generate support for the passage of a state law in Michigan prohibiting LGBT-based employment discrimination. In addition:

-19 years later, it is still legal to discriminate against an employee based on the person’s actual or perceived sexual orientation in 29 states and under federal law

-19 years later LGBT teachers are still losing their jobs based on their sexual orientation, gender identity or expression

-19 years later, LGBT students are being taught in anti-LGBT climates within school districts

It is my hope that my book will help garner attention to these facts and channel change for LGBT students and teachers.

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