Family court judge flunks the basics!

AMERICAN INTERNET NEWS
vol 4/4/09
http://www.americaninternetnews.com/
The" new" news alternative. Free writers invited, Free advertising invited, subscription free with your email address. Paid premium ,2 above the cut, advertising available.
* * *
Good Morning Flint!,By Terry Bankert ,http://www.divorcelawguy.com/
Full article at
http://goodmorningflint.blogspot.com/
* * *
-
Do You want to be in a movie? Casting call in Flint noon to 5 pm. Sunday 4/5/09 at Buffalo Wild Wings,3192 S. Linden Rd. Lyon Productions movie "Minor League a Football story" Terry Bankert is planning on trying out.
- ad-
http://www.divorcelawyguy.co/SATURDAY’S Radio show "Know the Law" 9-9:30 AM. WFLT 1420 A.M. broadcasting from Flint Michigan. 239-5733 (810). Call in your Family Law Questions.
http://www.ontheradio.net/radiostations/wfltam.aspx
-ad-
SUNDAYS’S Family Law Column in the Flint Newspaper CPSA Courier See
http://cpsacourier.com/
- - -
THE JUDGE JUST CANNOT SAY MY REFEREE DID A GOOD JOB, THEN CHANGE CUSTODY!
Necessary optimization. Flint Divorce Lawyer Terry Bankert today reviews an order to change child custody. Terry Bankert Flint child custody attorney observes as does the Court of Appeals that judges cannot blindly accept the finding of a referee, especially when custody of a child is changed. For more Flint Family Law attorney articles read the articles posted on the website of Flint Divorce attorney Terry Bankert. The complete article can be found at http://terrybankert.blogspot.com/

Today’s Issues Released 3/26/09 Unpublished:

1.Custody; Fletcher v. Fletcher; Powery v. Wells; Order modifying parenting time; Whether the trial court properly affirmed the referee's decision to modify the established custodial environment based on a preponderance of the evidence; Vodvarka v. Grasmeyer; Terry v. Affum (On Remand);

2. The clear and convincing evidence standard; MCL 722.27(1)©);

3.Consideration of the best interest factors required by MCL 722.23; Rivette v. Rose-Molina;
4.No contact order between the child and the defendant-mother's current husband
[This opinion has been modified for media presentation. Consult an attorney before you rely on its content.-Terry Bankert]
ejournal summary

The court reversed the trial court's order modifying parenting time and remanded the case because it was not clear whether the referee applied the correct burden of proof (clear and convincing evidence), the failure to definitively use the correct burden of proof constitutes clear legal error, and the trial court erred in failing to consider the best interest factors as required by MCL 722.23.
HIGHLIGHTS
THE LOWER TRIAL COURT DID WHAT?
1.DAD SAYS I SHOWED CHANGE IN CIRCUMSTANCES! DID THE REFEREE USE THE RIGHT LAW?
2.HIGH COURT TELLS THE JUDGE AND REFEREE TO DO IT RIGHT.
3.A BEST INTEREST ANALYSIS IN FAMILY LAW IS AS FUNDAMENTAL TO CHANGES IN CUSTODY AS AIR IS TO BREATHING.
4.REFERRING 101 FAILED!
5.THE TRIAL COURT JUDGE SHOULD HAVE KNOWN BETTER
"A mere statement by the trial court that the referee's findings were in the best interests of the child is not a sufficient review of the best interest factors." Reversed and remanded.
–
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
e-Journal Number: 42269,CHAD S. MAXAM, Plaintiff-Appellee,
UNPUBLISHED,March 26, 2009,v No. 280827,Van Buren Circuit Court
CRYSTAL A. NIEMI, f/k/a CRYSTAL A.SNYDER,
LC No. 02-049876-DC ,Defendant-Appellant., Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.,PER CURIAM.
6.THERE WAS ABUSE OF DISCRETION
7.PROPER CAUSE. CHANGE CIRCUMSTANCE, PREPONDERANCE OF EVIDENCE
8.IF CHANGE PROVEN, CUSTODIAL ENVIRONMENT THEN CLEAR AND CONVINCING
9.MOM’S LONG TERM BOYFRIEND IS A SEX OFFENDER
In the instant case, plaintiff established by a preponderance of the evidence that there had
been a change in circumstances warranting modification of parenting time. Vodvarka, supra;
Terry, supra. Plaintiff discovered in April 2006 that defendant’s long-term boyfriend (now
husband) was a registered sex offender. Defendant had knowledge of her husband’s criminal
background for many years but never informed plaintiff of this information.
10.BUT HE WAS ONLY A MODERATE RISK
11.THERE WAS A JOINT CUSTODIAL ENVIRONMENT THE CHANGE IN PARENTING WOULD CHANGE THE CUSTODY
12.JUST WHAT BURDEN DID THE REFEREE USE
It is not clear on the record whether the referee in fact applied the correct burden of proof
(clear and convincing evidence) in the determination of whether to modify the existing custodial
environment. The referee noted the appropriate burden, with case citation, in the initial
recommendation and order. However, he mistakenly stated the "preponderance of the evidence"
standard in the second recommendation following remand, and did so without case citation.
13.JUST WHAT BURDEN DID THE JUDGE USE?
Similarly, the trial court failed to indicate which standard it applied when accepting the referee’s
recommendations. Rather, it just found the referee’s recommendations were appropriate and in
the child’s best interests.
14.CLEAR ERROR ON THE PART OF JUDGE
The failure to definitively use the correct burden of proof constitutes
clear legal error. Powery, supra.
15.THEY SENT IT BACK AND TOLD THEM TO DO IT RIGHT
16.JUST HOW DID A FAMILY COURT JUDGE FORGET ABOUT THE BEST INTERESTS
Furthermore, we also find the trial court erred by failing to consider the best interest
factors required by MCL 722.23. Neither the referee nor the trial court referenced the statutory
best interest factors in their orders. Rather, the referee recounted the findings of fact and the
referee and trial court both summarily stated the custody modification was in the child’s best
interest because it was neither reasonable to expect, nor possible to ensure compliance, with
defendant staying away from her husband every other week.
THEY SENT IT BACK AND TOLD THE JUDGE TO DO IT RIGHT
Because there was no reference on the record by either the referee in his recommendations and order, or by the trial court in its order, to the best interest factors, a remand for such findings is required. Rivette v Rose-Molina, 278 Mich App 327, 329-333; 750 NW2d 603 (2008). A mere statement by the trial court that the referee’s findings were in the best interests of the child is not a sufficient review of the best interest factors.
- ad
On 4/30/09 at 6:30 PM The Genesee County Democratic Party is sponsoring a forum/debate between the Flint Mayoral candidate. The location is UAW Local 651 on Robert T Longway. This will be the last forum before this most important election in May. You are invited.
- - -
World News,
http://news.google.com/nwshp?sourceid=navclient&ie=UTF-8
Flint Commercial News
www.mlive.com/flint ,
http://abclocal.go.com/wjrt/index ,
http://www.wnem.com/index.html,
Posted here by
Terry Bankert
http://www.flintdivorce.com/
You are invited to continue these discussions on my face book.
http://www.facebook.com/people/Terry-Bankert/645845362
Email through my web site,http://www.terrybankert.com/ , Family Law advice at ,
http://www.attorneybankert.com/, Need Divorce Now! , http://www.3hourdivorce.com/ ,
http://www.dumpmyspouse.com/ , http://www.spousedumpster.com/Special Family Law needs ,
http://www.changemychildsupport.com/ , http://www.seemygrandbabies.com/ ,
Daily Blog Posted to:gmf,http://goodmorningflint.blogspot.com/ , http://twitter.com/terrybankert
other , http://www.facebook.com/people/Terry-Bankert/645845362
, http://www.flinttalk.com/ , http://www.myspace.com/terrybankert
, http://groups.yahoo.com/group/Flintcitizen/ , http://www.bloggingformichigan.com/
advertising ,gmf post, 2 above cut $25 per day below $25 per week. Free at end.

Sphere: Related Content