Friday, May 6, 2011

FLINT LAWYER COMMENTS:CUSTODIAL PARENT VOLUNTARILY AND TEMPORARILY, RETURNS CHILD TO NON CUSTODIAL PARENT. DOES THIS CHANGE CUSTODY? (810) 235-1970

FLINT MATRIMONIAL LAWYER TERRY BANKERT (810) 235-1970  ASKS "What if a parent was to Voluntarily Relinquished Custody to get their life back in order do they lose custody?"

THE TEST IS IF A NEW CUSTODIAL RELATIONSHIP IS CREATED.

§3.5 Even if a custodial parent temporarily relinquishes custody, all the circumstances must be reviewed in determining if a new custodial relationship has been established. [a] Contact Flint Divorce attorney Terry Bankert at (810) 235 -1970 or through his web site http://www.attorneybankert.com/ or through http://dumpmyspouse.com/ or if you have financial problems try http://nojokebeingbroke.com/


Even if a custody order is labeled permanent, the trial court must still determine if there is an established custodial environment by looking to the actual circumstances of each case. Wealton v Wealton, 120 Mich App 406, 327 NW2d 493 (1982). [b]

§11.19 Custodial parents occasionally experience crises in their lives. They might lack resources to deal effectively with a crisis and to care for the children. A noncustodial parent can help the children and his or her former spouse during such periods by offering to take the children for a time. An interim agreement for a temporary change of custody that is signed by the judge should be considered (see form 11.10). The order may [d]

1.temporarily change custody,

2.suspend or reduce child support payments while the children live with the other parent,

3.state the agreement of the parties about how long the children will stay with the other parent and under what circumstances they will be returned, or

4.state the parenting time schedule.[d]



A child custody order is never set in stone, though it may often seem so. The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c). The court’s power to modify custody lasts until the child reaches 18 years of age.[c]


A PUBLIC POLICY ARGUMENT IS THAT WE WANT THE ONOCUSTODIAL  PARENT TO BE AVAILABLE FOR THE CHILD AND NOT HAVE THE CUSTODIAL PARENT FEARFUL OF AN ATTEMPT TO CHANGE CUSTODY SHOULD THE CHILD LIVE WITH THE OTHER PARENT FOR A SHORT PERIOD OF TIME.

Public policy encourages parents experiencing difficulties to transfer custody temporarily while they resolve their problems. [a]

GIVING THE KIDS TO GRANDPARENTS IS TREATED DIFFERENTLY THAN GIVING THE KIDS TO A PARENT.

However, a mother who gave temporary physical custody to the paternal grandparents during her divorce was later required to show by a preponderance of the evidence that returning custody to her was in the child’s best interests. Straub v Straub, 209 Mich App 77, 530 NW2d 125 (1995) (best interests factors were equal between parties, but fact that all parties had agreed that voluntary relinquishment was temporary tipped scales in favor of mother).

NON CUSTODIAL PARENT HAS CHILD NINE MONTHS AND NO CHANGE OF CUSTODY

In Theroux v Doerr, 137 Mich App 147, 357 NW2d 327 (1984), no custodial environment was created when the custodial parent agreed to place the children with the father for nine months after he objected to her taking the children out of state for nine months. [a]

It is in the children’s best interests to encourage a parent to relinquish custody temporarily when he or she feels unable to provide for the children. [a]



In contrast, a mother’s established custodial environment was successfully challenged in Hall v Hall, 156 Mich App 286, 401 NW2d 353 (1986), where the mother voluntarily relinquished physical custody of the child to her parents. The father sought and was awarded temporary custody, and petitioned for permanent custody. The court found that there was no longer an established custodial environment with the mother, where the father had provided a stable environment for 17 months. [a]



In Sedlar v Sedlar, 165 Mich App 71, 419 NW2d 18 (1987), a mother who relinquished custody was unsuccessful in challenging the father’s custodial environment. It was not persuasive that the mother thought the order was temporary, especially when that was not stated in the custody order. [a]



Permanent custody was granted to the father in Moser v Moser, 130 Mich App 97, 343 NW2d 246 (1983), even though the mother claimed they had a verbal agreement that the father would return custody to her once she was financially ready. The court of appeals stated that it did not matter how the father had established the custodial environment, as long as he had. [a]

•Temporary custody of the children for approximately 15 months did not establish a custodial environment. Moser v Moser, 184 Mich App 111, 457 NW2d 70 (1990);

see also Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986) (two temporary orders over six months were not “appreciable” period of time to establish custodial environment);

Breas v Breas, 149 Mich App 103, 385 NW2d 743 (1986) (that custody lasted nine months did not give rise to established custodial environment given instability of home and that child looked to other parent for guidance and discipline);

but see De Vries v De Vries, 163 Mich App 266, 413 NW2d 764 (1987) (established custodial environment was established during temporary order that lasted ten months).[B]

SOURCE MATERIAL
[a]

Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at
http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03
 (last updated 04/22/2011


[b]

Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03
 (last updated 04/29/2011

[c]
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 04/29/2011

 [d]
http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2003553540&chapter=11


CAPS by Terry Bankert http://www.attorneybankert.com/

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