VERMONT UPHOLDS RIGHT OF NON-BIOLOGICAL MOTHER TO HAVE CUSTODY, OTHER MOTHER RUNS.
The case Lisa Miller biological mother on the run , reviewed by Flint Divorce Attorney Terry Bankert ,as Vermont upholds custody order to lesbian non-biological mother. This is followed by a presentation of 3rdy Party Standing in Michigan by Flint Custody Lawyer Terry Bankert. (SEO)
The biological mother, Lisa Miller, became a Christian, gave up the lesbian lifestyle, and moved with her daughter to Virginia. But a 2009 order, which awarded sole custody of Isabella to non-biological mother … lesbian …Janet Jenkins, was upheld Monday by the Vermont Supreme Court.[3on 11/2/10]
Link to this posting
http://michiganchildcustody.blogspot.com/2010/11/vermont-continues-custody-woth-non.html
See earlier story
http://www.onenewsnow.com/Legal/Default.aspx?id=911768
Rights of Third Parties IN MICHIGAN FOLLOWS [1]
"According to the U.S. Supreme Court and other cases dealing with the constitutional rights of parents, you cannot have a third party intervene unless there is some significant showing of abandonment, abuse, or neglect," the Liberty Counsel founder explains. "And there's nothing like that in this case."[3]
In fact, the courts have admitted Miller is a fit mother. So according to those rulings, the former lesbian partner has no right to intervene. Staver is looking into the possibility of asking the U.S. Supreme Court to jump into the case and force the Vermont court to look at the constitutional issues.[3]
Meanwhile, Miller failed to bring the eight-year-old girl to a court-ordered custody swap in January, and the whereabouts of the two remain unknown.[3]
A. In General
PARENTAL PREFERENCE
§12.22 In every custody dispute involving the natural parent of a child and a third-person custodian, the strong presumption exists that parental custody serves the child’s best interests. Heltzel v Heltzel, 248 Mich App 1, 638 NW2d 123 (2001). The Heltzel court emphasized that to properly recognize the fundamental constitutional nature of the parental liberty interest, while at the same time maintaining the statutory focus on the child’s best interests, [1]
custody of a child should be awarded to a third-party custodian instead of the child’s natural parent only when the third person proves that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns … taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person. Only when such a clear and convincing showing is made should a trial court infringe the parent’s fundamental constitutional rights by awarding custody of the parent’s child to a third person.
Id. at 27–28. [1]
WHAT IF THERE IS A CONFLICT BETWEEN THE GUARDIAN AND A PARENT.
Here is what Georgia says.
Accordingly, that standard as found in OCGA § 29-2-8 (b) must be interpreted
to mean that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent [by terminating the temporary guardianship]. Once this showing is made, the third party must then show that [continuation of the temporary guardianship] will best promote the child's welfare and happiness.[3]
WITH FEW EXCEPTIONS 3 RD PARTY’S DO NOT HAVE RIGHTS TO STARTING CUSTODY ACTIONS
With some modest exceptions created by statute, see MCL 722.26b, .26c (discussed in this section and in §12.23), neither the Child Custody Act nor the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) nor the Divorce Act creates a separate child custody cause of action for third parties. In re Clausen, 442 Mich 648, 502 NW2d 649 (1993); Bowie v Arder, 441 Mich 23, 490 NW2d 568 (1992); Ruppel v Lesner, 421 Mich 559, 364 NW2d 665 (1984); Sirovey v Campbell, 223 Mich App 59, 565 NW2d 857 (1997) (construing MCL 552.17a).[1]
THERE ARE ALWAYS EXCEPTIONS LIKE THE VERMONT LESBIAN STEP MOM CASE
The Vermont Supreme Court has upheld a lower-court ruling that granted custody of an eight-year-old girl to her non-biological mother in a long-running lesbian custody case.[3]
WHO IS A THIRD PARTY
A third party is any person other than a child’s biological or adoptive parents. [1]
GRAND PARENT RIGHTS
In Ruppel, the Michigan Supreme Court concluded that the circuit court lacks the authority to enter an order giving custody to a third party (in this case, the grandparents) over the parents’ objection when the child is living with his or her parents, divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness. The court observed that
[w]hile custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody “dispute” by simply filing a complaint in circuit court alleging that giving custody to the third party is in the “best interests of the child.”
Id. at 565–566. [1]
CAN THE COURT HEAR FROM A THRID PARTY? DO THEY HAVE STANDING?
Whether the circuit court may consider an original third-party action for a change of custody under the authority of the Child Custody Act was the source of conflict among panels of the court of appeals after the decision in Ruppel and before the supreme court’s later ruling in Bowie v Arder, 441 Mich 23, 490 NW2d 568 (1992). [1]
Many practitioners felt that Ruppel did not adequately deal with the situation in which a child is living with a third party with whom the child has forged a strong relationship. [1]
After Ruppel, several court of appeals panels dismissed original third-party custody complaints for lack of subject matter jurisdiction. See, e.g., Bowie v Arder, 190 Mich App 571, 476 NW2d 649 (1991), aff’d on other grounds, 441 Mich 23, 490 NW2d 568 (1992). In 1990 and 1991, some court of appeals panels construed Ruppel to allow custodial third parties to file original child custody actions, not ancillary to an already pending dispute. See, e.g., Duong v Hong, 191 Mich App 462, 478 NW2d 922 (1991), rev’d, 441 Mich 23, 490 NW2d 568 (1992) (child had lived with plaintiffs since infancy and parents had given plaintiffs legal custody of child). [1]
The Michigan Supreme Court addressed the conflict by granting leave in and consolidating Bowie and Duong. Bowie, 441 Mich 23, 490 NW2d 568 (1992). The court held that the circuit courts have subject matter jurisdiction over all custody claims, regardless of the identity of the party who initiates the action. [1]
3RD PARTY STANDING
The court also found that the determining factor in custody disputes involving third parties is the third party’s standing. [1]
GUARDIANS
The court ruled that a third party does not have standing to create a custody dispute not incidental to a divorce or separate maintenance proceeding unless that party is a guardian of the child or has a substantive right of entitlement to the custody of the child. [1]
WHAT WAS THE LEGISLATURE THINKING?
The court reasoned that the only third parties to which the legislature had specifically granted standing at the time of its decision were guardians and limited guardians pursuant to MCL 722.26b. In dicta, the court also stated that when parents of a child commence a custody action against third parties with whom their child resides or for the return of that child from a third party, there is then a bona fide dispute between the parties and the court could award custody to the third party. Consistent with the court’s view of third-party standing, it specifically overruled its prior decision in In re Weldon, 397 Mich 225, 244 NW2d 827 (1976), where the court had allowed a third party to initiate an action under the Child Custody Act. [1]
THIRD PARTY CANNOT START A CASE
The court also held that, when the third party commences the initial action with the consent of the natural parents, there is not a bona fide custody dispute, and the circuit court therefore lacks jurisdiction to enter an order awarding custody to the third party. The court reasoned that such voluntary transfers were within the then-exclusive jurisdiction of the probate court through guardianship proceedings. [1]
3RD PARTY MUST GET A GUARDIANSHIP THEN THEY CAN GET CUSTODY
As a result of the court’s decision in Bowie, practitioners may need to advise clients that to gain custody of a child who has been left in their care by a natural parent, if the clients are not already guardians and do not fall within the expanded categories of persons with standing under MCL 722.26c (discussed in §12.23), the third party must first initiate a guardianship proceeding pursuant to MCL 700.5204. [1]
CUSTODY OF GUARDIAN
If the clients are appointed as guardians, they then gain standing to initiate an action under MCL 722.26b of the Child Custody Act. Note that under MCL 722.26b, a full guardian has standing and a limited guardian has limited standing to bring an action for custody. [1]
PARENTAL RIGHTS TERMINATED?
In Newsome v Labby, 206 Mich App 434, 522 NW2d 872 (1994), the court stated that if a court has suspended parental rights over a child, the full guardians of that child have standing to bring an action for custody. This is true whether or not a reintegration plan has been instituted and the parents have substantially complied with the plan. Given the same circumstances, limited guardians would lose their standing. [1]
In Walterhouse v Ackley, 226 Mich App 67, 572 NW2d 243 (1997), rev’d, 459 Mich 924, 589 NW2d 780 (1998), the court of appeals reversed the trial court’s grant of custody to the child’s grandmother, who was a limited guardian. Her guardianship was created before the 1990 enactment of MCL 722.26b, and it was improper for the court to apply the statute retroactively. However, the supreme court reversed, noting that “the Legislature intended these new requirements to apply to guardianships already in place.” The supreme court found that the court of appeals had erred in failing to apply the 1990 version of section 6B of the Child Custody Act to a guardianship entered before the effective date of the statutory revisions. [1]
TEMPORARY GUARDIAN CAN BRING CUSTODY CATION
Due to the limitations on standing that limited guardians have, a client seeking to become a guardian to position himself or herself to bring a custody action should petition to become a full guardian, if possible. However, temporary guardians have the same authority as ordinary guardians to bring actions for custody. Kater v Brausen, 241 Mich App 606, 617 NW2d 40 (2000).
Some practitioners suggest that if a client who is a third party does not initiate guardianship proceedings and fails to voluntarily relinquish the child to the biological parents, the third party may request an award of custody if the biological parents subsequently commence a custody action against the client on the ground that a custody dispute would then be pending. Dicta in Ruppel and Bowie indicate that third parties may petition for custody when a dispute is already before the court. However, the supreme court specifically rejected that argument in In re Clausen, 442 Mich 648, 502 NW2d 649 (1993):
The [third parties] also argue that Bowie v Arder does not deny them standing. To begin with, they think that Bowie let stand statements in the lower court decision to the effect that “once judicial intervention has already taken place, the court may award custody to third parties.” Further, they see the only prohibition as being on the ability of a third party to create a custody dispute.
… .
We reject these arguments. … It is not enough that a person assert to be a “contestant” or “claim” a right to custody with respect to a child. If that were so, then any person could obtain standing by simply asserting a claim to custody, whether there was any legal basis for doing so or not. The Court of Appeals has correctly read our decision in Bowie as requiring the existence of some substantive right to custody of the child. We adhere to the holding of Bowie that a third party does not obtain such a substantive right by virtue of the child’s having resided with the third party.
442 Mich at 681–682 (citation omitted). [1]
A CASE BETWEEN THE PARENTS OPENS THE DOOR FOR A THIRD PARTY
Nevertheless, the court of appeals has, since Clausen, reached the conclusion that a pending custody case opens the door to third parties. Sirovey v Campbell, 223 Mich App 59, 565 NW2d 857 (1997). In that case, the court held that a third party lacks standing to initiate a petition for change of custody in a postjudgment proceeding but stated in dicta that when there is an existing custody dispute between parents, a grandparent or another third party may seek custody based on the “best interests of the child” factors. See also Kane v Anjoski (In re Anjoski), 283 Mich App 41, 770 NW2d 1 (2009), in which the widow of the custodial father could not initiate a custody action for the father’s child but could be awarded custody. But see Porter v Overton, 214 Mich App 95, 542 NW2d 288 (1995) (third party had no standing to assert any rights to children, even if she were viewed as party against whom custody action was brought).
Defenses to third-party claims are discussed in §§12.24–12.25.
SEE:
[1]
Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=12
(last updated 11/12/2010
[trb or cap’s] Terry R. Bankert 1000 Beach St., Flint MI 48503, 1-810-235-1970, http://attorneybankert.com/
[3]
http://www.onenewsnow.com/Legal/Default.aspx?id=1221724
(SEO)
This Paragraph written for Search Engine Optimization)
Monday, November 22, 2010
Friday, May 28, 2010
Lapeer Divorce Court child custody decision commented on by Divorce lawyer, Attorney Terry Bankert
Flint Divorce Lawyer comments on Lapeer Divorce Court Custody Opinion. Call 810-235-1970 for immediate answers to your family law issues.
Lapeer Circuit Court Family Division LC No. 04-034925-DM,State of Michigan Court of Appeals,
UNPUBLISHED, March 18, 2010 ,v No. 293702, RICHARD COLON CHRIVIA,
Plaintiff-Appellant, BARBARA ANN CHRIVIA, Defendant-Appellee.
Before: Servitto, P.J., and Bandstra and Fort Hood, JJ., PER CURIAM.
This opinion has been modified for media presentation. Original opinion at [1]
MOTION FOR CUSTODY
Plaintiff appeals by right an order of the trial court denying his motion to change custody.
The Lapeer Circuit Court, on de novo review, agreed with the Friend of the Court (FOC)
referee’s findings and entered an order consistent with the findings. Finding no error, we affirm.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
MARRIED 1989-2004
Plaintiff and defendant married in 1989 and divorced in 2004. The marriage produced
one child, MC, born in 2000.
JOINT LEGAL AND PHYSICAL CUSTODY THE PLAINTIFF PRIMARY PHYSICAL CUSTODY
The parties entered into a consent judgment of divorce that
granted both parents joint legal and joint physical custody of MC . In 2007, defendant,
concerned over plaintiff’s imminent move to West Virginia, sought sole physical custody.
Defendant was instead granted primary physical custody, and plaintiff was granted permission to
move to West Virginia.
ON VISITS DAD GRABS CUSTODY
In January of 2009, while MINOR CHILD (MC) was with FATHER plaintiff in West Virginia, plaintiff sought and received in the courts of West Virginia an emergency protective order and temporary custody of
MC. Meanwhile, defendant filed a motion in the Lapeer Circuit Court for MC return.
MICHIGAN SAYS GET THIS CHILD BACK
The trial court informed plaintiff that the temporary custody granted by West Virginia was
without effect and that he was required to return MC to defendant MOTHER, and attend a hearing in the
Lapeer Circuit Court. FATHER Plaintiff complied, and on the date of the hearing filed a motion for
change of custody in that court.
REFEREE SAYS LEAVE CHILD HERE
In June of 2009, the FOC referee heard plaintiff’s motion, taking testimony from
plaintiff, defendant, and plaintiff’s wife. The referee also interviewed MC in camera. The
referee recommended that plaintiff’s motion be denied, and made findings of fact on the record.
FATHER SAYS REFEREE SCREWED UP APPEALS TO THE REAL JUDGE
Plaintiff filed his objections before the trial court. The trial court reviewed the transcript and the
pleadings, and agreed with the referee and entered an order denying plaintiff’s motion.
FATHER NOT HAPPY WITH LAPEER COURT, HE APPEALS
Plaintiff’s sole argument on appeal is that the trial court abused its discretion in denying
plaintiff’s motion in light of the following facts:
(1) plaintiff is married and has a stable home,
while defendant has had two live-in boyfriends she met on the internet;
(2) plaintiff has a higher
income than defendant;
(3) defendant was previously unaware of MC Asperger syndrome1
diagnosis.
RULES FOR THE COURT OF APPEALS
We affirm all orders and judgments of the trial court in child custody cases unless the
court “made findings of fact against the great weight of evidence or committed a palpable abuse
of discretion or a clear legal error on a major issue.” MCL 722.28; Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004).
A JOURNEY BEGINS WITH THE FIRST STEP
The first step in deciding a motion for change of custody is determining whether proper
cause or change of circumstances merits such a change. MCL 722.27(1)(c); Powery v Wells, 278
Mich App 526, 527; 752 NW2d 47 (2008).
FATHER IS THE BEARER OF THE BURDEN
The party seeking the change bears the burden of establishing this by a preponderance of the evidence. MCL 722.27(1)(c).
JUST WHAT DID THE REFEREE SAY
THERE IS A CHANGE IN CIRCUMSTANCES
The FOC referee found that defendant having two live-in boyfriends in the space of two and a half years was both a sufficient change of circumstances and a proper cause to allow a change of custody. Plaintiff
does not contest this finding on appeal. Nor does the finding appear to be a palpable abuse of
discretion, as the adults with whom a child lives have or can have a significant effect on that
child’s well-being and development.
WHAT ABOUT THE CUSTODIAL ENVIRONMENT?
The next inquiry is whether there is an established custodial environment. Powery, 278
Mich App at 528. Plaintiff FATHER concedes that an established custodial environment exists with
Defendant MOTHER . The referee did not rely on plaintiff’s concession, but found that there was an
established custodial environment based on the length of time defendant had primary physical
custody. This finding is not against the great weight of the evidence. See Foskett v Foskett, 247
Mich App 1, 8; 634 NW2d 363 (2001).
PRELIMINARY STEPS COMPLETED, IS IT CLEAR?
Having established that there is proper cause or a change in circumstances, and that there
is an established custodial environment, what remains to examine is whether plaintiff established
by clear and convincing evidence that the change in custody is in the best interest of MC.
Powery, 278 Mich App at 528.
THE LEGISLATURE HAS DECIDED THE ELEMENTS OF THE BEST INTEREST OF A CHILD?
The Legislature has enumerated the following 12 factors to be considered when making the best interest determination:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23.]
SOME FACTORS ARE MORE EQUAL THAN OTHERS
While the best interest factors must be considered, a trial court need not give each factor equal
weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).
FATHER SAYS FACTORS C,D,E, DONE WRONG.
It appears as though plaintiff’s arguments are aimed at best interest factors (c), (d), (e),
and (f).
( C)
The referee explained that plaintiff prevailed on factor (c) due to his higher income, but
noted that both parties were “struggling,” and that neither party was “suffering.” Because the
disparity in income was not dramatic, the referee did not give it great weight.
(D)(E)
With respect to factors (d) and (e), the referee expressed concerns about defendant’s two live-in boyfriends.
LIFE STYLE IS OF CONCRN
The trial court agreed that there were “certainly legitimate concerns about the Defendant’s lifestyle
and her manner of involvement of male companions in the child’s life.” The referee’s and the
trial court’s concerns on the impact of defendant’s decision to have her boyfriends live in the
home with MC does impact the stability and prospects for stability of the home. Thus, there
was no error in the handling of these factors below.
PARITY ON (F)
The referee found that the parties were equal with respect to factor (f), specifically
rejecting plaintiff’s argument that cohabitation outside of marriage was per se immoral under
case law. See Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988)). It was not clear
legal error for the trial court to reject plaintiff’s argument; rather, it would have been clear legal
error for it to accept plaintiff’s argument.
THE SUM OF ALL THE PARTS IS THE SUM, MOTHERS SUM GREATER THAN FATHERS
In sum, the referee considered all of the statutory factors, weighed them, and found that
the factor on which defendant prevailed outweighed the two factors on which plaintiff prevailed.
The trial court, reviewing the testimony, came to the same conclusion.
THE LOCAL COURT DID NOT MESS UP
We find no palpable abuse of discretion in the trial court’s balancing of the best interest factors, and in finding that plaintiff failed to prove by clear and convincing evidence that it was in Joshua’s best interest to
grant plaintiff’s motion for change of custody
THE MICHIGAN COURT OF APPEALS AGREED WITH THE LAPEER FAMILY COURT!
Affirmed.
Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
http://www.icle.org/contentfiles/mlo/unpublished/20100318_293702.pdf
[2]
CAP HEADLINES or 9trb)
Terry Banker
http://attorneybankert.com
FOOTNOTE
1 Asperger syndrome is a developmental disorder characterized by low social ability but normal
linguistic and cognitive function (DSM-IV-TR). It is often considered a form of or similar to
high-functioning autism.
Lapeer Circuit Court Family Division LC No. 04-034925-DM,State of Michigan Court of Appeals,
UNPUBLISHED, March 18, 2010 ,v No. 293702, RICHARD COLON CHRIVIA,
Plaintiff-Appellant, BARBARA ANN CHRIVIA, Defendant-Appellee.
Before: Servitto, P.J., and Bandstra and Fort Hood, JJ., PER CURIAM.
This opinion has been modified for media presentation. Original opinion at [1]
MOTION FOR CUSTODY
Plaintiff appeals by right an order of the trial court denying his motion to change custody.
The Lapeer Circuit Court, on de novo review, agreed with the Friend of the Court (FOC)
referee’s findings and entered an order consistent with the findings. Finding no error, we affirm.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
MARRIED 1989-2004
Plaintiff and defendant married in 1989 and divorced in 2004. The marriage produced
one child, MC, born in 2000.
JOINT LEGAL AND PHYSICAL CUSTODY THE PLAINTIFF PRIMARY PHYSICAL CUSTODY
The parties entered into a consent judgment of divorce that
granted both parents joint legal and joint physical custody of MC . In 2007, defendant,
concerned over plaintiff’s imminent move to West Virginia, sought sole physical custody.
Defendant was instead granted primary physical custody, and plaintiff was granted permission to
move to West Virginia.
ON VISITS DAD GRABS CUSTODY
In January of 2009, while MINOR CHILD (MC) was with FATHER plaintiff in West Virginia, plaintiff sought and received in the courts of West Virginia an emergency protective order and temporary custody of
MC. Meanwhile, defendant filed a motion in the Lapeer Circuit Court for MC return.
MICHIGAN SAYS GET THIS CHILD BACK
The trial court informed plaintiff that the temporary custody granted by West Virginia was
without effect and that he was required to return MC to defendant MOTHER, and attend a hearing in the
Lapeer Circuit Court. FATHER Plaintiff complied, and on the date of the hearing filed a motion for
change of custody in that court.
REFEREE SAYS LEAVE CHILD HERE
In June of 2009, the FOC referee heard plaintiff’s motion, taking testimony from
plaintiff, defendant, and plaintiff’s wife. The referee also interviewed MC in camera. The
referee recommended that plaintiff’s motion be denied, and made findings of fact on the record.
FATHER SAYS REFEREE SCREWED UP APPEALS TO THE REAL JUDGE
Plaintiff filed his objections before the trial court. The trial court reviewed the transcript and the
pleadings, and agreed with the referee and entered an order denying plaintiff’s motion.
FATHER NOT HAPPY WITH LAPEER COURT, HE APPEALS
Plaintiff’s sole argument on appeal is that the trial court abused its discretion in denying
plaintiff’s motion in light of the following facts:
(1) plaintiff is married and has a stable home,
while defendant has had two live-in boyfriends she met on the internet;
(2) plaintiff has a higher
income than defendant;
(3) defendant was previously unaware of MC Asperger syndrome1
diagnosis.
RULES FOR THE COURT OF APPEALS
We affirm all orders and judgments of the trial court in child custody cases unless the
court “made findings of fact against the great weight of evidence or committed a palpable abuse
of discretion or a clear legal error on a major issue.” MCL 722.28; Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004).
A JOURNEY BEGINS WITH THE FIRST STEP
The first step in deciding a motion for change of custody is determining whether proper
cause or change of circumstances merits such a change. MCL 722.27(1)(c); Powery v Wells, 278
Mich App 526, 527; 752 NW2d 47 (2008).
FATHER IS THE BEARER OF THE BURDEN
The party seeking the change bears the burden of establishing this by a preponderance of the evidence. MCL 722.27(1)(c).
JUST WHAT DID THE REFEREE SAY
THERE IS A CHANGE IN CIRCUMSTANCES
The FOC referee found that defendant having two live-in boyfriends in the space of two and a half years was both a sufficient change of circumstances and a proper cause to allow a change of custody. Plaintiff
does not contest this finding on appeal. Nor does the finding appear to be a palpable abuse of
discretion, as the adults with whom a child lives have or can have a significant effect on that
child’s well-being and development.
WHAT ABOUT THE CUSTODIAL ENVIRONMENT?
The next inquiry is whether there is an established custodial environment. Powery, 278
Mich App at 528. Plaintiff FATHER concedes that an established custodial environment exists with
Defendant MOTHER . The referee did not rely on plaintiff’s concession, but found that there was an
established custodial environment based on the length of time defendant had primary physical
custody. This finding is not against the great weight of the evidence. See Foskett v Foskett, 247
Mich App 1, 8; 634 NW2d 363 (2001).
PRELIMINARY STEPS COMPLETED, IS IT CLEAR?
Having established that there is proper cause or a change in circumstances, and that there
is an established custodial environment, what remains to examine is whether plaintiff established
by clear and convincing evidence that the change in custody is in the best interest of MC.
Powery, 278 Mich App at 528.
THE LEGISLATURE HAS DECIDED THE ELEMENTS OF THE BEST INTEREST OF A CHILD?
The Legislature has enumerated the following 12 factors to be considered when making the best interest determination:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23.]
SOME FACTORS ARE MORE EQUAL THAN OTHERS
While the best interest factors must be considered, a trial court need not give each factor equal
weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).
FATHER SAYS FACTORS C,D,E, DONE WRONG.
It appears as though plaintiff’s arguments are aimed at best interest factors (c), (d), (e),
and (f).
( C)
The referee explained that plaintiff prevailed on factor (c) due to his higher income, but
noted that both parties were “struggling,” and that neither party was “suffering.” Because the
disparity in income was not dramatic, the referee did not give it great weight.
(D)(E)
With respect to factors (d) and (e), the referee expressed concerns about defendant’s two live-in boyfriends.
LIFE STYLE IS OF CONCRN
The trial court agreed that there were “certainly legitimate concerns about the Defendant’s lifestyle
and her manner of involvement of male companions in the child’s life.” The referee’s and the
trial court’s concerns on the impact of defendant’s decision to have her boyfriends live in the
home with MC does impact the stability and prospects for stability of the home. Thus, there
was no error in the handling of these factors below.
PARITY ON (F)
The referee found that the parties were equal with respect to factor (f), specifically
rejecting plaintiff’s argument that cohabitation outside of marriage was per se immoral under
case law. See Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988)). It was not clear
legal error for the trial court to reject plaintiff’s argument; rather, it would have been clear legal
error for it to accept plaintiff’s argument.
THE SUM OF ALL THE PARTS IS THE SUM, MOTHERS SUM GREATER THAN FATHERS
In sum, the referee considered all of the statutory factors, weighed them, and found that
the factor on which defendant prevailed outweighed the two factors on which plaintiff prevailed.
The trial court, reviewing the testimony, came to the same conclusion.
THE LOCAL COURT DID NOT MESS UP
We find no palpable abuse of discretion in the trial court’s balancing of the best interest factors, and in finding that plaintiff failed to prove by clear and convincing evidence that it was in Joshua’s best interest to
grant plaintiff’s motion for change of custody
THE MICHIGAN COURT OF APPEALS AGREED WITH THE LAPEER FAMILY COURT!
Affirmed.
Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
http://www.icle.org/contentfiles/mlo/unpublished/20100318_293702.pdf
[2]
CAP HEADLINES or 9trb)
Terry Banker
http://attorneybankert.com
FOOTNOTE
1 Asperger syndrome is a developmental disorder characterized by low social ability but normal
linguistic and cognitive function (DSM-IV-TR). It is often considered a form of or similar to
high-functioning autism.
Thursday, May 20, 2010
Daddy may be in jail will mom get custody/
WHAT COULD BE WORSE FOR MR. NODINE? DIVORCE SERVED, DRUG INDICTED , POLITICALLY IMPEACHED AND NAMED ONLY MURDER SUSPECT! BUT HE HAS A FRIEND NAMED “HOSS”.
Terry Bankert a Flint Divorce Lawyer , Http://attorneybankert.com observes it was a bad day for Alabama Mobile County Commissioner Stephen Nodine . Most of us working stiffs think our world has ended and nobody has it worse than us when we are served divorce papers papers.
IF YOU THOUGHT THE DAY YOU WERE SERVED WITH DIVORCE PAPERS WAS BAD ASK MR. NODINE
SERVED INDICTED IMPEACHED AND NAMED ONLY MURDER SUSPECT
On one Friday he was served divorce papers indicted Friday by a Mobile County Grand Jury on drug charges, impeached and named the only suspect in the murder of his mistress, Angel Downs[see1]
MICHIGAN IS A NO FAULT DIVORCE STATE
To end a valid marriage, there must be a judgment of divorce. In a divorce complaint, the only allegation of the grounds for divorce the statute permits is the no-fault ground, i.e., “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” MCL 552.6(1). If the statutory standard is met, the court must enter a judgment of divorce; thus, one party will invariably be able to obtain the divorce even if the other party objects. Grotelueschen v Grotelueschen, 113 Mich App 395, 318 NW2d 227 (1982) (if either party is unwilling to live with the other, the objects of matrimony have been destroyed); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973) (one party’s assertion of the mere possibility that the marriage can be preserved is not sufficient grounds to deny the divorce). [3]
WIFE THINKS THERE MAY BE IRRECONCILEABLE DIFFERENCES
In the divorce papers filed Friday, Kimberlee Nodine cites an "irretrievable breakdown of the marriage" and says any attempts to reconcile would be futile.[1] Do ya think.
WHAT WILL SHE GET WHEN HES IN JAIL?
She's seeking custody of their son, $971 per month in child support and $2,500 per month in alimony. Mrs. Nodine also wants to keep the couples house and her 2005 Honda Pilot, but wants Steve to pay the mortgage and car payment. She also wants Steve's pension from Mobile County.[1]
CHILD CUSTODY IN MICHIGAN
A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment. MCL 722.27(1)(c). Whether an established custodial environment exists is a preliminary and essential determination. Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), aff’d, 451 Mich 457, 547 NW2d 686 (1996). The trial court must make clear findings on this issue before deciding custody. Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). This includes a request for sole custody when the initial order was for joint custody. See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987). [3]
Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987).
The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23 (see §3.8). Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986).
The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23
CHILD SUPPORT IN MICHIGAN
Under the SPTEA, support means the court-ordered payment of money for a child, including payment of the medical, dental, and other health care expenses; child care expenses; and educational expenses. MCL 552.602(ee)(i).
According to 2008 MCSF 3.04, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children.
For purposes of setting the support obligation, it is presumed that a specified dollar amount per child per year ($345 in 2008 manual) will be spent on ordinary expenses. This annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment. The payee must incur this minimum threshold amount before seeking reimbursement for health care expenses from the payer.
However, the payer may seek to have the payee pay his or her apportioned amount of any health care expenses, regardless of whether the threshold amount has been satisfied. Amounts may be added to compensate for other known or predictable expenses, such as orthodontia or special medical needs. Uninsured health care expenses that exceed the ordinary health care expense amount are extraordinary expenses, which are apportioned between the parents based on the medical percentages set in the support order.
SPOUSAL SUPPORT IN MICHIGAN
A spousal support award must be just and reasonable under the circumstances of the individual case. MCL 552.23; see Maake v Maake, 200 Mich App 184, 187, 503 NW2d 664 (1993).
Relevant factors in determining whether spousal support should be awarded include the following:
the past relations and the conduct of the parties
the length of the marriage
the ability of the parties to work
the source of and amount of property awarded to the parties
the ages of the parties
the ability of the parties to pay spousal support
the present situation of the parties
the needs of the parties
the health of the parties
the prior standard of living of the parties
whether either party is responsible for the support of others
general principles of equity
Parrish v Parrish, 138 Mich App 546, 554, 361 NW2d 366 (1984).
The court must make findings on each factor that is relevant to the claim before it. Sparks v Sparks, 440 Mich 141, 159, 485 NW2d 893 (1992).
ALABAMA SHERIFF “HOSS” SPEAKS OUT
Baldwin County Sheriff Huey "Hoss" Mack said that while Nodine is the only suspect in the Downs [ THE GIRL FRIEND]case at present, that does not mean that there's enough evidence for an arrest. "Just because you're a suspect doesn't mean that you did it," Mack said. [2]
I AM MOST AMAZED THAT MOBILE ALABAMA COUNTY HAS A REAL SHERIFF CALLED “HOSS”
Posted here by
Terry r. Bankert
http://attorneybankert.com
[1]
http://www.wkrg.com/alabama/article/steve-nodines-wife-files-for-divorce/887557/May-17-2010_5-41-pm/
[2]
http://blog.al.com/live/2010/05/impeachment_trial_of_stephen_n.html
[3]
Michigan Family Law Bench Book
Terry Bankert a Flint Divorce Lawyer , Http://attorneybankert.com observes it was a bad day for Alabama Mobile County Commissioner Stephen Nodine . Most of us working stiffs think our world has ended and nobody has it worse than us when we are served divorce papers papers.
IF YOU THOUGHT THE DAY YOU WERE SERVED WITH DIVORCE PAPERS WAS BAD ASK MR. NODINE
SERVED INDICTED IMPEACHED AND NAMED ONLY MURDER SUSPECT
On one Friday he was served divorce papers indicted Friday by a Mobile County Grand Jury on drug charges, impeached and named the only suspect in the murder of his mistress, Angel Downs[see1]
MICHIGAN IS A NO FAULT DIVORCE STATE
To end a valid marriage, there must be a judgment of divorce. In a divorce complaint, the only allegation of the grounds for divorce the statute permits is the no-fault ground, i.e., “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” MCL 552.6(1). If the statutory standard is met, the court must enter a judgment of divorce; thus, one party will invariably be able to obtain the divorce even if the other party objects. Grotelueschen v Grotelueschen, 113 Mich App 395, 318 NW2d 227 (1982) (if either party is unwilling to live with the other, the objects of matrimony have been destroyed); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973) (one party’s assertion of the mere possibility that the marriage can be preserved is not sufficient grounds to deny the divorce). [3]
WIFE THINKS THERE MAY BE IRRECONCILEABLE DIFFERENCES
In the divorce papers filed Friday, Kimberlee Nodine cites an "irretrievable breakdown of the marriage" and says any attempts to reconcile would be futile.[1] Do ya think.
WHAT WILL SHE GET WHEN HES IN JAIL?
She's seeking custody of their son, $971 per month in child support and $2,500 per month in alimony. Mrs. Nodine also wants to keep the couples house and her 2005 Honda Pilot, but wants Steve to pay the mortgage and car payment. She also wants Steve's pension from Mobile County.[1]
CHILD CUSTODY IN MICHIGAN
A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment. MCL 722.27(1)(c). Whether an established custodial environment exists is a preliminary and essential determination. Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), aff’d, 451 Mich 457, 547 NW2d 686 (1996). The trial court must make clear findings on this issue before deciding custody. Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). This includes a request for sole custody when the initial order was for joint custody. See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987). [3]
Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987).
The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23 (see §3.8). Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986).
The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23
CHILD SUPPORT IN MICHIGAN
Under the SPTEA, support means the court-ordered payment of money for a child, including payment of the medical, dental, and other health care expenses; child care expenses; and educational expenses. MCL 552.602(ee)(i).
According to 2008 MCSF 3.04, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children.
For purposes of setting the support obligation, it is presumed that a specified dollar amount per child per year ($345 in 2008 manual) will be spent on ordinary expenses. This annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment. The payee must incur this minimum threshold amount before seeking reimbursement for health care expenses from the payer.
However, the payer may seek to have the payee pay his or her apportioned amount of any health care expenses, regardless of whether the threshold amount has been satisfied. Amounts may be added to compensate for other known or predictable expenses, such as orthodontia or special medical needs. Uninsured health care expenses that exceed the ordinary health care expense amount are extraordinary expenses, which are apportioned between the parents based on the medical percentages set in the support order.
SPOUSAL SUPPORT IN MICHIGAN
A spousal support award must be just and reasonable under the circumstances of the individual case. MCL 552.23; see Maake v Maake, 200 Mich App 184, 187, 503 NW2d 664 (1993).
Relevant factors in determining whether spousal support should be awarded include the following:
the past relations and the conduct of the parties
the length of the marriage
the ability of the parties to work
the source of and amount of property awarded to the parties
the ages of the parties
the ability of the parties to pay spousal support
the present situation of the parties
the needs of the parties
the health of the parties
the prior standard of living of the parties
whether either party is responsible for the support of others
general principles of equity
Parrish v Parrish, 138 Mich App 546, 554, 361 NW2d 366 (1984).
The court must make findings on each factor that is relevant to the claim before it. Sparks v Sparks, 440 Mich 141, 159, 485 NW2d 893 (1992).
ALABAMA SHERIFF “HOSS” SPEAKS OUT
Baldwin County Sheriff Huey "Hoss" Mack said that while Nodine is the only suspect in the Downs [ THE GIRL FRIEND]case at present, that does not mean that there's enough evidence for an arrest. "Just because you're a suspect doesn't mean that you did it," Mack said. [2]
I AM MOST AMAZED THAT MOBILE ALABAMA COUNTY HAS A REAL SHERIFF CALLED “HOSS”
Posted here by
Terry r. Bankert
http://attorneybankert.com
[1]
http://www.wkrg.com/alabama/article/steve-nodines-wife-files-for-divorce/887557/May-17-2010_5-41-pm/
[2]
http://blog.al.com/live/2010/05/impeachment_trial_of_stephen_n.html
[3]
Michigan Family Law Bench Book
Wednesday, May 12, 2010
Tiger Woods, Elign Nordegren Child Custody and You!
Child Custody Issues discussed by Flint Divorce Lawyer Terry Bankert:
TO PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL
We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]
And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren
and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]
Divorce;
DID YOU KNOW:
Grounds for divorce.
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]
HOW MANY TIMES IS THIS PART VIOLATED?
The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]
Child custody;
DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]
THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS
Best interests of the child.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.[3]
Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]
MCL 722.28; Berger v. Berger; Brausch v. Brausch;
Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]
Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;
Vodvarka v. Grasmeyer [1]
SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:
1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;
2. Defendant now works three days a week; and
3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.
Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]
HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE
Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]
WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT
In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]
NO CHANGE OF CIRCUMSTANCES
Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]
POOR PRESENTATION ON FATHERS PART
We observe that plaintiff has abandoned this issue on appeal by failing to properly brief
it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]
DIVORCED WITH FOUR CHILDREN
The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]
MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING
The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]
DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE
He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]
STEP MOMMY GROWING DEMANDS?
Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]
DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO
Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]
OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING
The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]
THIS SHOULD BE ABOUT THE CHILDREN
Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]
DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM
His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]
It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]
Posted 5/11/2010
By Terry Bankert
http://attorneybankert.com
See:
[1], from e-journal
Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM
e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher
[CAPITALIZATIONS and trb are Terry Bankerts comments]
[2] See [1] from the case
[3]
Michigan Family Law Benchbook
[4]
http://celebs.gather.com/viewArticle.action?articleId=281474978227525
TO PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL
We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]
And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren
and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]
Divorce;
DID YOU KNOW:
Grounds for divorce.
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]
HOW MANY TIMES IS THIS PART VIOLATED?
The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]
Child custody;
DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]
THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS
Best interests of the child.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.[3]
Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]
MCL 722.28; Berger v. Berger; Brausch v. Brausch;
Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]
Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;
Vodvarka v. Grasmeyer [1]
SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:
1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;
2. Defendant now works three days a week; and
3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.
Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]
HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE
Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]
WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT
In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]
NO CHANGE OF CIRCUMSTANCES
Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]
POOR PRESENTATION ON FATHERS PART
We observe that plaintiff has abandoned this issue on appeal by failing to properly brief
it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]
DIVORCED WITH FOUR CHILDREN
The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]
MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING
The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]
DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE
He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]
STEP MOMMY GROWING DEMANDS?
Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]
DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO
Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]
OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING
The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]
THIS SHOULD BE ABOUT THE CHILDREN
Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]
DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM
His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]
It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]
Posted 5/11/2010
By Terry Bankert
http://attorneybankert.com
See:
[1], from e-journal
Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM
e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher
[CAPITALIZATIONS and trb are Terry Bankerts comments]
[2] See [1] from the case
[3]
Michigan Family Law Benchbook
[4]
http://celebs.gather.com/viewArticle.action?articleId=281474978227525
Monday, April 5, 2010
MICHIGAN AND FLINT DIVORCE CHILD CUSTODY DECISION MAKING
Flint Divorce Attorney Terry Bankert notes that the first question a Family Law Court will ask when a child custody is put before follows. Is there an established custodial environment?
The court must make findings on this issue before deciding custody. As in all Family Court decision making there are standards the court has to follow.
Questions when there is a Family Court Child Custody Decision.
*Is there is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
• What is the age of the child,
• Where does the child live/ What is the physical environment, and
• What are the plans of the parents. What is the inclination of the custodian and the child as to the permanency of the relationship.
The Family law or Divorce court then renders a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.
Who has to prove what? One party has the burden of proof.
•When there is an established custodial environment, a change of custody may be made only on clear and convincing evidence that the change is in the best interests of the child.
•When there is no established custodial environment , custody may be changed on showing by a preponderance of the evidence that the custodial arrangement is in the best interests of the child.
Ohter issues to consider
•Prior custody orders—mere existence does not create an established custodial environment.
•Custodial parent voluntarily relinquishes custody—all factors must be examined to determine if a new custodial environment is created. Public policy encourages a parent with difficulties to temporarily relinquish custody to resolve his or her problems.
•In prejudgment cases where the parties are residing together, the judge makes the determination on a preponderance of the evidence.
When making a custody decison a Family Court Attorney must show to the judge the Best interests of the child. This term Best interests are several factors A-l that a Family Law Court must use to make a custody decision.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties. It lets you know why the Family Court judge made a child custody decision.
The Famil Court must consider each factor and make findings by saying who the decision was made. This is tape recored and is the record.
The Child Custody factors are not all equal weight; the individual family Court Judge determines the weight of each factor.
These best Interest Factors follow.
•(a) The love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
•(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
•(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
•(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
•(e) The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
•(f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
•(g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
•(h) The home, school, and community record of the child.
•(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
•(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
•(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
•( l ) Any other factor considered by the court to be relevant to a particular child custody dispute. The court may not consider the race of a parent’s spouse in considering whether to change custody.
These types of child custody can be ordered Sole or joint custody.
Joint custody od a child means that the parents have joint physical custody (the child resides for alternate periods with each parent) and/or that the parents have joint legal custody (the parents share decision-making authority on important decisions affecting the child’s welfare).
In a joint child custody arrangement, the order determining custody or parenting time must contain a provision stating the parents’ agreement on how they will handle a change in either of the child’s legal residences that is more than 100 miles from the child’s residence at the time the action was filed. If the parents do not agree on such a provision, the order must state: “A mother or father whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the ‘Child Custody Act of 1970,’ 1970 PA 91, MCL 722.31.”
Did you know you have a riught to joint child custody.
•In child custody disputes, parents must be advised of the availability of joint custody.
•If the childs parents agree on joint custody, the court must order it unless it finds on the record by clear and convincing evidence that joint custody is not in the best interests of the child.
•At the request of either mother or father, the court must consider joint custody and must state on the record the reasons for granting or denying the request. The judge has to tell you why you do not get joint child custody if you ask for it.
•The court determines whether joint child custody would be in the best interests of the child by considering the statutory best interests factors and whether the parents will be able to cooperate and generally agree on important decisions concerning the child’s welfare.
If you have additional questions contact Flint Divorce Lawyer Terry Bankert.
At http://www.attorneybankert.com/
The court must make findings on this issue before deciding custody. As in all Family Court decision making there are standards the court has to follow.
Questions when there is a Family Court Child Custody Decision.
*Is there is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
• What is the age of the child,
• Where does the child live/ What is the physical environment, and
• What are the plans of the parents. What is the inclination of the custodian and the child as to the permanency of the relationship.
The Family law or Divorce court then renders a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.
Who has to prove what? One party has the burden of proof.
•When there is an established custodial environment, a change of custody may be made only on clear and convincing evidence that the change is in the best interests of the child.
•When there is no established custodial environment , custody may be changed on showing by a preponderance of the evidence that the custodial arrangement is in the best interests of the child.
Ohter issues to consider
•Prior custody orders—mere existence does not create an established custodial environment.
•Custodial parent voluntarily relinquishes custody—all factors must be examined to determine if a new custodial environment is created. Public policy encourages a parent with difficulties to temporarily relinquish custody to resolve his or her problems.
•In prejudgment cases where the parties are residing together, the judge makes the determination on a preponderance of the evidence.
When making a custody decison a Family Court Attorney must show to the judge the Best interests of the child. This term Best interests are several factors A-l that a Family Law Court must use to make a custody decision.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties. It lets you know why the Family Court judge made a child custody decision.
The Famil Court must consider each factor and make findings by saying who the decision was made. This is tape recored and is the record.
The Child Custody factors are not all equal weight; the individual family Court Judge determines the weight of each factor.
These best Interest Factors follow.
•(a) The love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
•(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
•(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
•(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
•(e) The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
•(f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
•(g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
•(h) The home, school, and community record of the child.
•(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
•(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
•(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
•( l ) Any other factor considered by the court to be relevant to a particular child custody dispute. The court may not consider the race of a parent’s spouse in considering whether to change custody.
These types of child custody can be ordered Sole or joint custody.
Joint custody od a child means that the parents have joint physical custody (the child resides for alternate periods with each parent) and/or that the parents have joint legal custody (the parents share decision-making authority on important decisions affecting the child’s welfare).
In a joint child custody arrangement, the order determining custody or parenting time must contain a provision stating the parents’ agreement on how they will handle a change in either of the child’s legal residences that is more than 100 miles from the child’s residence at the time the action was filed. If the parents do not agree on such a provision, the order must state: “A mother or father whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the ‘Child Custody Act of 1970,’ 1970 PA 91, MCL 722.31.”
Did you know you have a riught to joint child custody.
•In child custody disputes, parents must be advised of the availability of joint custody.
•If the childs parents agree on joint custody, the court must order it unless it finds on the record by clear and convincing evidence that joint custody is not in the best interests of the child.
•At the request of either mother or father, the court must consider joint custody and must state on the record the reasons for granting or denying the request. The judge has to tell you why you do not get joint child custody if you ask for it.
•The court determines whether joint child custody would be in the best interests of the child by considering the statutory best interests factors and whether the parents will be able to cooperate and generally agree on important decisions concerning the child’s welfare.
If you have additional questions contact Flint Divorce Lawyer Terry Bankert.
At http://www.attorneybankert.com/
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