DADDY CANNOT RELY ON HIS MOMMY TO RAISE HIS CHILD!

CAN DADDY GET CUSTODY WHEN HIS MOMMY RAISED THE CHILD....NO SAYS THE UPPERS...!
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GOOD MORNING FLINT! BY Terry Bankert 4/05/08
You are invited to join me at Face Book http://www.facebook.com/people/Terry_Bankert/645845362 __________________________
Article at http://goodmorningflint.blogspot.com/
Flint Talk
http://flinttalk.com/viewtopic.php?p=27085#27085
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NO, TO THE ABOVE- Dude you got to do you own parenting. This child did not volunteer to be born.[trb]

Issues: Divorce; Custody; Whether the child had an established custodial environment; MacIntyre v. MacIntyre; Jack v. Jack; Foskett v. Foskett; LaFleche v. Ybarra; Whether the court erred in its finding on best interest factor (e); Fletcher v. Fletcher; Ireland v. Smith
Court: Michigan Court of Appeals
Case Name: Liu v. Liang
e-Journal Number: 38899
Judge(s): Per Curiam - Meter, Sawyer, and Wilder
UNPUBLISHED
March 25, 2008
v No. 280301
Sanilac Circuit Court
Family Division
LC No. 06-031374-DM
Defendant-Appellee.


This article will be discussed "live" on my Radio program
"Know the Law" on
Saturday 04/05/2008
from Flint Michigan USA on
WFLT 1420 AM
Radio 9:00 a.m. to 9:30 a.m. (Eastern) .
This is a call in program for your questions on Family Law. Please call 1-810-239-5733. [trb]

A BATTLE OVER CUSTODIAL ENVIRONMENT-MOM GETS KIDS!

The trial court did not err by finding the parties' minor child did not have an established custodial environment and in granting physical custody of the minor child to the defendant-mother.

PATERNAL GRANDMOTHER HAD BEEN THE CARE GIVER! DAD SHOULD GET CREDIT FOR THAT?

According to the plaintiff-father, the trial court ignored the fact plaintiff's mother had been the child's primary care giver for the most of the child's life.

WHAT IS GOING ON WITH THIS CHILD?

The child was just past two years of age at the time of the temporary custody order and had lived intermittently with different groups of adults including the parties, plaintiff's mother, and plaintiff's sister, in different locations.

THIS BABY WAS MOVED AROUND TOO MUCH WITH TOO MUCH DRAMA

The record did not establish in the various circumstances in which the child was placed, she looked to any particular adult for guidance, discipline, life necessities, or parental comfort.

DAD SAYS HIS MOTHER WAS "THE ONE"

Plaintiff maintained his mother was the primary care giver for the bulk of the child's life, and as such he and his mother had provided an established custodial environment.

COURT SAYS NO PROOF OF THAT

However, the record contained no evidence the child looked to plaintiff's mother more than to other adults for the statutorily relevant factors, and there was no evidence plaintiff's mother intended her role to be permanent.

COURT SAYS NO CUSTODIAL ENVIRONMENT, THE COURT WILL PLACE.

Given the child's young age and the varying home environments in which she lived, the court rejected plaintiff's contention the case was analogous to LaFleche.

WHAT HAPPENS WHEN NO CUSTODIAL ENVIRONMENT?

Absent a custodial environment, the trial court was left to fashion a custody arrangement based on the child's best interests by a preponderance of the evidence.

THE COURT MUST USE THE BEST INTEREST FACTORS

To do so, the trial court properly considered the 12 factors listed in MCL 722.23.

DAD KEPT MOM AWAY

Although the trial court found the parents roughly equal on most factors, the trial court noted it had some concern on factor (j), where plaintiff had not demonstrated efforts to facilitate a relationship between the child and defendant.

MOM MORE LOVING AND STABLE FOR THE CHILD

The trial court also stated with regard to factor (l), defendant appeared to have a more nurturing relationship with the child than plaintiff, and defendant was less likely than plaintiff to abandon the child. In addition, the trial court found factor (e), the permanence of the family unit, slightly favored defendant. Affirmed.

–END SUMMARY-

BACKGROUND OF THE PARTIES

The parties married in January 2003, and their only child was born in September 2004.
At the time, both parties worked as vegetable farmers in Michigan.

In December 2004, at the
end of the farming season, the parties moved to San Francisco, where they lived with members
of plaintiff’s extended family. Plaintiff’s mother served as one of the child’s care givers.
Plaintiff left San Francisco a couple of months later, leaving his mother and defendant to care for
the child. By May 2005, both plaintiff and defendant were back at the Michigan farm, while
their then eight-month-old child remained in San Francisco with plaintiff’s mother.
The parties returned to San Francisco in January 2006.

Plaintiff left for Florida shortlyafter their return. By spring, the parties’ marriage was faltering. Defendant moved to her own apartment in San Francisco and did not return to Michigan for the farming season.


She eventually entered college and obtained employment. Plaintiff’s mother and sister brought the child to Michigan in May 2006. In October 2006, plaintiff filed for divorce.

The trial court entered a temporary custody order in December 2006 granting physical custody of the child to plaintiff.

The order stated that the temporary custody arrangement would not be considered as
establishing a custodial environment.

The Friend of the Court (FOC) held hearings on the custody issue and recommended that
plaintiff be granted primary physical custody of the child. Defendant filed objections, and the
trial court held a de novo hearing. The trial court found that there was no established custodial
environment with either parent and that the child’s best interests would be served by awarding
physical custody to defendant.

On appeal, plaintiff first argues that the trial court erred by finding that the child did not
have an established custodial environment. According to plaintiff, the court ignored the fact that
plaintiff’s mother had been the child’s primary care giver for the most of the child’s life.

PROCESS FOR REVIEWING LOWER COURT DECISION

On this issue, we review the record to determine whether the trial court’s finding was against the great weight of the evidence. MCL 722.28. We review the court’s ultimate custody award for an abuse of discretion. MacIntyre v MacIntyre, 267 Mich App 449, 451; 705 NW2d 144 (2005).


Although the testimony in the record is somewhat difficult to follow due to the
translations from Mandarin and Cantonese to English, we conclude that the trial court’s finding
was not against the great weight of the evidence.

WHEN YOU LEAVE PLACEMENT TO THE COURT IT FIRST ASKS IS THERE A CUSTODIAL ENVIRONMENT

As the court correctly determined, the first inquiry in a custody dispute is whether an
established custodial environment exists for the child. Jack v Jack, 239 Mich App 668, 670; 610
NW2d 231 (2000).

IF THERE IS A CUSTODIAL ENVIRONMENT THE COURT CANNOT CHANGE IT WILLY NILLY

If there is an established custodial environment, the court cannot change that
environment absent clear and convincing evidence that the change is in the child’s best interests.
MCL 722.27(1) ( C )

IF THERE IS A CUSTODIAL ENVIRONMENT THE COURT WEIGHT, MEASURES THEN DECIDES.

If there is no established custodial environment, the court may enter a
custody order if the preponderance of the evidence shows that the requested custody is in the
child’s best interests. Foskett v Foskett, 247 Mich App 1, 6-7; 634 NW2d 363 (2001).

SO JUST WHAT IS THE CUSTODIAL ENVIRONMENT?

To determine whether an established custodial environment exists, the court must
examine statutorily defined factors. The applicable statute states that:
a custodial environment is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.

Lots of wiggle room here.[trb]

The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
considered. [MCL 722.27(1)©).]

LET ME TELL YOU ABOUT THIS CHILD
2 YEARS OF AGE, MOVED AROUND A LOT...

Here, the child was just past two years of age at the time of the temporary custody order and had lived intermittently with different groups of adults including the parties, plaintiff’s mother, and plaintiff’s sister, in different locations.

THIS KID WAS ON ITS OWN, NO GUIDANCE! AT 2 YEARS OF AGE!

The record does not establish that in the varying circumstances in which the child was placed, she looked to any particular adult for guidance, discipline, life necessities, or parental comfort.

DAD, MY MOMMY TOOK CARE OF THE BABY!

Plaintiff maintains that his mother was the primary care giver for the bulk of the child’s life, and that as such he and his mother had provided an established custodial environment.

WELL, DADDYA SURE DID NOT PROVE THIS BIG TALK!

However, the record contains no evidence that the child looked to plaintiff’s mother more than to other adults for the statutorily relevant factors, and there was no evidence that plaintiff’s mother intended her role to be permanent.


Given the child’s young age and the varying home environments in which she lived, we reject plaintiff’s
contention that this case is analogous to LaFleche v Ybarra, 242 Mich App 692, 619 NW2d 738
(2000).

THE FAMILY COURT NO...YOU FAILED TO PROVIDE ANY CUSTODIAL ENVIRONMENT FOR THIS BABY

Accordingly, the trial court did not err in finding that the child had no established
custodial environment.

Absent a custodial environment, the court was left to fashion a custody arrangement
based on the child’s best interests by a preponderance of the evidence.

THE COURT WILL NOW DECIDE CUSTODY.

IN MICHIGAN WE DO NOT WANT ELITE JUDGES DECIDING OUR CHILDRENS CUSTODY ON THEIR ELITE, PAMPERED, RICH BACKGROUNDS.

THE LEGISLATURE ADOPTED THIS ACT (BEST INTEREST STANDARDS) TO STANDARDIZE AND MAKE FAIRER FOR THE COMMON FAMILY THESE DECISIONS.

To do so the court properly considered the twelve factors listed in MCL 722.23. Although the court found the parents roughly equal on most factors, the court noted that it had some concern on:
factor (j), in that plaintiff had not demonstrated efforts to facilitate a relationship between the child and defendant.
The court also stated that with regard to factor (l), defendant appeared to have a more
nurturing relationship with the child than plaintiff, and that defendant was less likely than
plaintiff to abandon the child. In addition,
the court found that factor (e), the permanence of the family unit, slightly favored defendant.

DAD TATTLES TO THE COURT OF APPEALS THIS COURT BELOW YOU DID NOT KNOW WHAT IT WAS DOING

Plaintiff argues that the court erred in its finding on factor (e).

THE COURT OF APPEALS SAYS, YOU GOT TO BE KIDDING US THE LOCAL COURT DID IT RIGHT.

We disagree As we stated in Fletcher v Fletcher, 200 Mich App 505, 517; 504 NW2d 684 (1993), rev’d in part on other grounds 447 Mich 871 (1994), "[t]his factor exclusively concerns whether the family unit will remain intact."


The evidence here was that plaintiff had a pattern of traveling from place to
place and delegating the child’s care to the female members of his family. In contrast, defendant
had settled in San Francisco and intended to be the child’s primary care giver on a day-to-day
basis.

That defendant is currently a university student does not negate the trial court’s
conclusion that she will provide a more permanent family unit than plaintiff.


Our Supreme Court acknowledged in Ireland v Smith, 451 Mich 457, 465; 547 NW2d 686 (1996), that a student can provide a permanent family unit for a child, even if the other parent is living in a family unit with the child’s grandparents.

Plaintiff has identified no viable grounds for disturbing the trial court’s custody
determination.

Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Kurtis T. Wilder

–end article-

Posted here by Terry Bankert 4/4/08... http://attorneybankert.com/
Join my political party of preference, http://www.michigandems.com/join.html —


The bulk of the material above is from an e-journal which circulated this recent court of appeals case. I have change the form I have added the cap headlines and inserted my comments as [trb] Do not rely on this article unless you review the original. This is prepared for a blog and discussion on a radio program. -Terry Bankert 4/5/08

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