Good Morning Flint
Terry Bankert
9/8/2007
attorneybankert@yahoo.com
At 9 am on WFLT AM radio on my program Know the Law I will talk about family law and today change in custody. You are invited to call in questions by calling between 9:10 and 9:30 [810] 239-5733. This show airs every Saturday Morning.
The longer article is posted at my Blogg
http://goodmorningflint.blogspot.com/
or on my web site at:
http://attorneybankert.com/
and on Flint Talk follows a summary
http://www.flinttalk.com/about1871.html
In a recent case called Edwards the Michigan Court of Appeals talked to us about child custody.
I learned that denial of parenting time of the non custodial parent is a change of circumstances that can lead to a change of custody. This case shows how to on all four corner of this issue.
For you. Don’t mess with the other parents parenting time nor make up issues with child protective proceeding this exercise in anger can cost you your children.
Issues:
In this case the mother had been arrested becase of a bench warrant becase she did not let father have his parenting time. The local court had been challanged by the mother that it abused its discretion by transferring physical custody to plaintiff-father sua sponte;[when she was arrested or the bench warrant was issued ,later there was a hearing]
When you disagree with the action of a local court called a trial court you have a right to appeal to the court of appeals. This is expensive and seldom done. Case law that guides future decisions rises up from these court of appeals and supreme court decisions when they are published, this case was not. Local courts Have to follow these decisions just like they have to follow state laws passed by the legislature.
The Court of appeals then made a Determination of:
1.whether a change of circumstances or an established custodial environment existed;
2.Review of the best interests factors;
3.Whether the trial court conducted the evidentiary hearing within 56 days after defendant requested it;
4.Best interest factors (e), (k) and (l); Whether the trial court properly considered defendant’s repeated denial of parenting time; Judicial bias; MCR 2.003(B)(1); Cain v. Department of Corr.
The local or trial court’s order continuing joint legal custody but transferring physical custody of the minor child to plaintiff was affirmed.
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This case is called
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JEFFREY EDWARDS,
Plaintiff-Appellee,
UNPUBLISHED
August 30, 2007
v No. 274315
Macomb Circuit Court
Family Division
MUINGO E. MUTHUI-EDWARDS,
LC No. 2005-002850-DM
Defendant-Appellant.
Before: Meter, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s order that continued joint legal
custody but transferred physical custody of the minor child to plaintiff.
Mother Defendant argued that the trial court abused its discretion by transferring physical custody to plaintiff father on April 17, 2006, sua sponte, without determining whether a change of circumstances or an established custodial environment existed and without reviewing the best interests factors.
MCL 722.28 provides that child custody orders shall be affirmed on appeal
unless the trial 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." See also Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994).
A finding of fact is against the great weight of the evidence if the evidence "‘clearly preponderates in the opposite direction.’" Id. at 879, quoting Murchie v Std Oil Co, 355 Mich 550, 558; 94 NW2d 799 (1959).
The Michigan Court of Appeals reviews the trial court’s discretionary rulings, including custody decisions, for an abuse of discretion. Fletcher, supra at 879-881.
The Michigan Court of Appeals also reviews questions of law for clear legal error, which occurs when a court incorrectly chooses, interprets, or applies the law. Id. at 881.
The Defendant mother had argued and relied on on MCL 552.17 to support an assertion that a trial court may not sua sponte change custody without a motion from one of the parties.
However, MCL 552.17(1) provides that a trial court may alter a judgment concerning custody "as the circumstances of the parents and the benefit of the children require." Therefore, defendant’s argument is misplaced. The court does have a right to change custody. There is just a process that it has to follow.
Regarding the process the Court of Appeals found the local court did err in certain respects.
MCL 722.27(1) (2) provides that a trial court may conduct a child custody hearing to modify or amend a previous order or judgment only on a showing of a proper cause or change in circumstances. The court then refeenced two cases to support this argument stating See also
Killingbeck v Killingbeck, 269 Mich App 132, 145; 711 NW2d 759 (2005), and Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003).
The last order affecting custody of the Edwards children before April 17, 2006 [ the date the lower court changed custody], was the judgment of divorce, entered on April 4, 2006, and the trial court failed to determine whether proper cause or a change of circumstances had occurred before it changed custody on April 17, 2006.3
To determine the movant’s ( in this case the fathers request for custody of his children ) burden of proof in a child custody proceeding, a trial court must make a factual determination about whether an established custodial environment exists.
Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).
A trial court must make a specific finding regarding the existence of an established custodial environment. Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000).
The trial court failed to determine whether an established custodial environment existed before it changed custody on April 17, 2006.
MCL 722.27(1)(c) provides that a trial court is required to conduct a hearing regarding the child’s best interests before changing custody, even on a temporary basis. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
A trial court cannot make a proper determination or the necessary findings of fact without considering admissible evidence. Mann v Mann, 190 Mich App 526, 532; 476 NW2d 439 (1991).
Further, a change of custody is not an appropriate punishment for contempt. Bylinski v Bylinski, 25 Mich App 227, 229; 181 NW2d
283 (1970).
Therefore, the trial court committed clear legal error in changing custody on April
17, 2006, without first conducting a hearing on the best interests of the child.
However, the court’s errors do not require reversal because the trial court eventually conducted a hearing on the best interests of the child on October 24, 2006. Mann, supra at 533.
To the extent that defendant argues that reversal is required because the trial court failed to determine on April 17, 2006, whether a change in circumstances and an established custodial environment existed, it is impossible for this Court to fashion a remedy because the trial court made determinations regarding both issues during the best interests hearing on October 24, 2006.
Therefore, these issues are moot. Dudzinski, supra at 112.
The mother defendant was found to be incorrect in maintaining that the trial court found an established custodial environment with plaintiff leading up to the October 24 hearing.
VIOLATION OF PARENTING TIME ORDER IS CHANGE IN CIRCUMSTANCES
Rather, the court found that an established custodial environment had existed with defendant but that a change of circumstances had occurred between April 4 and April 17, 2006 – namely, defendant’s violation of the parenting time order.
The court correctly held that plaintiff had the burden of (3 The trial court stated that it was changing custody because defendant had disobeyed court orders and it was the only way to get relief for plaintiff.)proof on October 24, 2006, to show by clear and convincing evidence that a change of custody was warranted.
Mother Defendant raises two issues regarding the October 24, 2006, hearing and change of custody.
These issues concern the timing of the hearing and three of the best interests factors.
However, these issues are not properly before this Court because they were not included in the "statement of questions involved" section of plaintiff’s brief on appeal, as required by MCR 7.212©)(5). This is a polite way of saying that the mothers attorney messed up.
Therefore, they may be deemed waived and not subject to appellate review. Busch
v Holmes, 256 Mich App 4, 12; 662 NW2d 64 (2003).
Nevertheless, we exercise our discretion and review them. See, generally, Van Buren Twp v Garter Belt, Inc, 258 Mich App 594, 632; 673 NW2d 111 (2003).
Defendant mother first asserts that the trial court erred in failing to conduct the evidentiary hearing within 56 days after she requested it.
MCR 3.210(C)(1) provides that, when the custody of a minor is contested, a trial court must conduct a hearing within 56 days after the court orders
the hearing or after the filing of notice that a custody hearing is requested.
However, MCR 3.210(C)(7) provides that a trial court may extend the time required to conduct a hearing for good cause. The trial court granted defendant’s request for a hearing on May 22, 2006, and scheduled a hearing for June 22, 2006, but the parties agreed to adjourn it.
The hearing was rescheduled for July 20, 2006, but the parties agreed to adjourn it until August 25, 2006, and then the parties agreed to adjourn the hearing until September 19, 2006. The hearing was rescheduled for October 11, 2006, but the parties adjourned it until October 24, 2006, when the hearing was ultimately conducted.
The parties’ various consent agreements to adjourn the hearings constituted good cause, and a party may not stipulate to a matter and then argue on appeal that it was error. Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523,529; 695 NW2d 508 (2004).
Therefore, defendant’s argument is meritless.
Mother Defendant also challenged the local trial court’s factual findings regarding three of the statutory best interests factors, MCL 722.23(e), (k) and (l).
A trial court must make specific findings of fact
regarding each of the 12 factors. McCain v McCain, 229 Mich App 123, 124; 580 NW2d 485 (1998). The trial court is not required to weigh the statutory best interests factors equally. Id. at 131.
The welfare of the child is always the "overwhelmingly predominant factor." Heid v Aaasulewski, 209 Mich App 587, 595; 532 NW2d 205 (1995).
MCL 722.23(e) focuses on the "permanence, as a family unit, of the existing or proposed custodial home or homes."
Factor (e) concerns the permanence of the custodial home, as
opposed to its acceptability. Ireland v Smith, 451 Mich 457, 464; 547 NW2d 686 (1996); Fletcher, supra at 884-885. Defendant mother argued that the trial court failed to consider the importance of the familial unit, in particular the relationship between the child and her older child from another relationship, Kimanzi.
Defendant compares the October 24, 2006, findings to
the March 3, 2006, findings, wherein the trial court considered the child’s relationship with Kimanzi under factor (l). The evidence showed that defendant lived with Kimanzi and defendant’s mother, Dorcas Hall, in Hall’s house in Pennsylvania and that plaintiff lived in his own house in Michigan.
The trial court found the parties equal on this factor because both
homes were permanent. Therefore, the evidence did not clearly preponderate in the opposite direction of the trial court’s finding on this factor, and this finding was not against the great weight of the evidence. Mom lost on this point.
MCL 722.23(k) instructs the trial court to consider "[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child." Defendant claimed that her reason for leaving plaintiff in April 2005 was that he had pushed her, called her names, and broken the windshield of her vehicle in front of the child and Kimanzi. A family counseling clinic report was prepared and admitted at the hearing. This report showed that both parties portrayed themselves as victims and that they aggressively fought regardless of the child. The
trial court found that there was no domestic violence regarding factor (k), although it acknowledged that there were some indications of pushing "years and years ago[.]" Defendant claims that this finding was contrary to the trial court’s finding on March 3, 2006, following an evidentiary hearing, wherein the trial court found that plaintiff forced and manipulated defendant. However, defendant mischaracterizes this finding, which was part of the trial court’s
findings regarding defendant’s request for a change of domicile.
The trial court found that plaintiff had a motivation to force and manipulate defendant to return to Michigan.
The trial court did not make a finding that plaintiff had committed domestic violence; rather, when evaluating factor (k) on March 3, 2006, the trial court found that there was no domestic violence.
Therefore, the evidence did not clearly preponderate in the opposite direction of the trial court’s finding on this factor, and this finding was not against the great weight of the evidence.
We note that trial courts, which are "more experienced and better situated to weigh evidence and assess credibility," are in a superior position to make accurate decisions about which custody arrangement will be in the child’s best interests. Fletcher, supra at 889-890.
Defendant claims that the trial court improperly considered her repeated denial of
parenting time. However, MCL 722.23(l) requires the trial court to consider any other factor it deems relevant to the custody dispute.
On March 3, 2006, the trial court found, as a matter of fact, that defendant’s allegations of sexual abuse of the child by plaintiff were false.
A report from the department of human services was admitted as an exhibit at the hearing.
In this report, the investigator questioned the credibility of the accusations and concluded that there was no evidence to support the allegations of abuse.
Between the time the judgment of divorce was entered and the hearing, defendant violated a parenting time order and was held in contempt.
This was the second time the trial court held defendant in contempt and issued a bench warrant for failure to obey a parenting time order. The trial court considered defendant’s repeated falseallegations against plaintiff, her interference with the relationship between plaintiff and the child, and her repeated denial of parenting time and concluded that factor (l) favored plaintiff.
The evidence did not clearly preponderate in the opposite direction of the trial court’s finding on this factor, and the court’s finding was not against the great weight of the evidence.
Because none of the challenged findings regarding the best interests factors were against the great weight of the evidence, the trial court did not abuse its discretion in awarding plaintiff physical custody.
To the extent that defendant raises parental alienation syndrome in her argument regarding factor (l), this is an improper attempt to expand the record on appeal and will not be considered.
See MCR 7.210(A)(1); Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783
(2002). Indeed, defendant attaches numerous exhibits to her appellate brief that are not
contained in the lower court record; we do not consider these exhibits.
The Michigan Court of Appeals than Affirmed the decision of the local trial court.
Posted here by
Terry Bankert
9/8/2007
attorneybankert@yahoo.com
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