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UNPUBLISHED, March 18, 2010 ,v No. 293702, RICHARD COLON CHRIVIA,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.
Friday, May 28, 2010
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
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