MOM GETS TO MOVE 200 MILES, DAD DRIVE 12 HRS TO SEE HIS KIDS ON WEEKEND IN HIS HOME!

GOOD MORING FLINT!
9/28/09
by Terry Bankert
http://www.flintfamilylaw.com/

CAN YOU BELIVE THIS, DAD ACTIVE IN CHILDS LIFE CANNOT STOP MOM FROM MOVING 200 MILES AWAY!


Hot off the Press,
WHO YOU ELECTED TO BE A JUDGE DOES AFFECT YOUR LOVED ONES LIVES!

Flint Divorce Attorney Terry Bankert reviews a 9/17/09 unpublished opinion of the Michigan Court of Appeals. Flint Lawyer Terry Bankert practices Family Law in Genesee County Flint Michigan dealing often with the issues of change of domicile and custodial environment.

Here we discuss a case where Father Defendant appeals as is his right an order of a local court granting a motion for change of domicile , OVER 200 MILES,in favor of Mother Plaintiff.The local order permitted mother/plaintiff to move from Utica, Michigan to Wellston, Michigan with the parties’ minor child.

The Michigan Court of Appeals said the local court got it right.

HOW FAR IS MOM MOVING THE KIDS FROM DAD?

If Michigan were your left hand A move from Utica Michigan to Wellston Michigan would be from the base of your left thumb to the base of your little finger.This move by a Yahoo Map is 218.60 miles, A 3.34 hr drive.

To test for distance in court use a straight line.

To take his kids to his home for the weekend assuming dad is responsible for all driving he spends 12 hours in the car the kids would spend 6.

Think about it. If you were dad and had been active with your kids during and after school and regularly took them to visit with your family locally could you keep it up with this drive? The Michigan Court of Appeals would say YES!

What does common sense say?

If dad had been move acvtive in the childs life the outcome for him may have been different.

The local court also found that the mother and father had conducted themselves in a way in which the mother primarily had physical custody.　

Although testimony indicated that the child looked to father for his needs while inFathers care and there were periods of time where fathers time with the child was more than what was scheduled, father can point to no testimony establishing that the child also looked to him for guidance, discipline, and parental comfort on a day-to-day basis.

THE FATHER AND CHILD relationship does not have the characteristic of permanence and stability that is emblematic of an established custodial environment.

HERES A 10 DOLLAR WORD!

emblematicemblematical, #"/definition/symbolic"symbolic, # "/definition/symbolical"symbolicalserving as a visible symbol for something abstract; "a crown is emblematic of royalty"; "the spinning wheel was as symbolic of colonical Massachusetts as the codfish" emblematic, exemplary, typicbeing or serving as an illustration of a type; "the free discussion that is emblematic of democracy"; "an action exemplary of his conduct";　　

FAMILY LAW ISSUES

1.Change of minor child's domicile; MCL 722.31(4);

2.Whether the child had an established custodial environment with both parties; Foskett v. Foskett; Rittershaus v. Rittershaus; Mogle v. Scriver; MCL 722.27(1)(c); Baker v. Baker; MCL 722.28; Berger v. Berger; Phillips v. Jordan

MICHIGAN COURT OF APPEALSCourt: Michigan Court of Appeals (Unpublished),September 17, 2009,v No. 291045Macomb Circuit Court,LC No. 2002-002204-DS,Case Name: Avouris v. Rasa,e-Journal Number: 43790,Judge(s): Per Curiam - Sawyer, Cavanagh, and Hoekstra[This opinion has been modified for presentation-TRB 9/29/09]

THE LOCAL COURT GOT IT RIGHT ON CUSTODIAL ENVIRONMENT

The trial court's finding the parties' minor child's established custodial environment was solely with the plaintiff-mother was not against the great weight of the evidence, and it did not abuse its discretion in ruling a change of domicile within the state was warranted under MCL 722.31(4).

A MOVE DISRUPTING PARENTING TIME COULD DISRUPT THE CUSTODIAL ENVIRONMENT

Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence. Sinicropi v Mazurek, 273 Mich App 149, 178;729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).

WAS THERE JOINT CUSTODY?

DID THE MOVE CHANGE THE CUSTODIAL ENVIRONMENT?

IF YES THEN MOM NEEDED TO SHOW BY CLEAR AND CONVINCING EVIDENCE .

“[T]he trial court is not required to consider the best-interest factors until it first determines thatthe [domicile] modification actually changes the children’s established custodial environment.”Rittershaus v Rittershaus, 273 Mich App 462, 470-471; 730 NW2d 262 (2007).

HERE MOM ONLY HAD TO MAKE HER CASE BY THE LOWER STANDARD OF PREPONDERANCE OF THE EVIDENCE.

Where the change in domicile will not affect the established custodial environment, the moving party has only “the burden of establishing by a preponderance of the evidence that the change in domicile is warranted.” Mogle v Scriver, 241 Mich App 192, 203; 614 NW2d 696 (2000).

DAD LOST THE JOINT CUSTODY ARGUMENT

The defendant-father argued the trial court should have required plaintiff to show the change in domicile was in the child's best interests by clear and convincing evidence because he had an established custodial environment with both parties, and challenged the trial court's findings on the factors in MCL 722.31(4)(a)-(c).

The parties in this case had joint custody of the child, but plaintiff, the child’s mother,had full physical custody.

The trial court found that an established custodial environment only existed with plaintiff. Defendant argues that this finding was against the great weight of the evidence.

He contends that the child had an established custodial environment with him as well,and because of this the trial court clearly erred by not requiring plaintiff to show by clear and convincing evidence that the change in domicile was in the child’s best interests.

This argument requires a review of whether the trial court’s finding that there was not an established custodial environment with defendant was against the great weight of the evidence.

MCL 722.27(1)(c) provides:

The custodial environment of a child is established if over an appreciable time thechild naturally looks to the custodian in that environment for guidance, discipline,the necessities of life, and parental comfort.

The age of the child, the physicalenvironment, and the inclination of the custodian and the child as to permanencyof the relationship shall also be considered.

Whether an established custodial environment exists is a question of fact. Foskett, supra at 8.

An established custodial environment can exist with both parents, even if the child’s primary residence is with one parent and the same parent provides most of the financial support for the child. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000).

Further, an established custodial environment is one of significant duration, both physical and psychological, “in which the relationship between the custodian and child is marked by security, stability and permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981)

Here the court looked for characteristic of permanence and stability that is emblematic of an established custodial environment. Mother plaintiff only needed to prove that the change in domicile was warranted by a preponderance of the evidence.　

In determining the child's established custodial environment was with plaintiff, the trial court noted he primarily lived with plaintiff and attended school from her home.

The trial court found while both parties participated in the child's school life and attended doctor's appointments, they conducted themselves in a way in which plaintiff primarily had physical custody.

While testimony indicated the child looked to defendant for his needs when he was in his care and there were periods where his time with the child was more than what was scheduled, defendant could not point to testimony showing the child also looked to him for discipline, guidance, and parental comfort on a day-to-day basis.

The court concluded their relationship did "not have the characteristic of permanence and stability that is emblematic of an established custodial environment."

When a parent petitions the court to change the legal residence of the child to alocation that is more than 100 miles from the child’s legal residence, the trial court must consider the following factors, set forth in MCL 722.31(4), before permitting the change:

(a) Whether the legal residence change has the capacity to improve the quality oflife for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or hertime under, a court order governing parenting time with the child, and whether theparent's plan to change the child's legal residence is inspired by that parent'sdesire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legalresidence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.

(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.

(e) Domestic violence, regardless of whether the violence was directed against orwitnessed by the child.　The court also held there was evidentiary support for the trial court's findings the move would have the capacity to improve the quality of life for the child and plaintiff, and defendant would be able to foster and preserve a relationship with him.

The trial court based its finding on MCL 722.31(4)(a) on plaintiff's planned marriage to her fiancé, who lived in the city to which she sought to change the child's domicile, and on her new employment, after she was unable to find suitable employment in the area where she currently lived.As to MCL 722.31(4)(b) and (c), the court concluded the evidence also supported the trial court's findings both parties had complied with the scheduling order and given their past cooperation related to parenting time, they would comply with the modified parenting time order.

The Michigan Court of Appeals Affirmed or agreed with the local court.

Posted here by Terry Bankert a Flint divorce lawyer. This case has been modified for presentation.9/28/09

http://www.attorneybankert.com/

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