Monday, October 12, 2009


By Terry Bankert
Issues reviewed by Flint Divorce Attorney Lawyer Terry Bankert:

There are cases in Family Law where the burden of proof is critical. Such is the case when one parent wants to change the custody order. We want children’s lives to be stable, so there should be and there is great pressure to not change the custodial environment.

The Higher courts have directed the lower court that changes to a child’s established custodial environment should be permitted only “in the most compelling cases,” Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981), and only where the moving party can show by clear and convincing evidence that the change is in the best interest of the child, MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).

In this case, the circuit court held that an established custodial environment existed with defendant only. Accordingly, the circuit court concluded that plaintiff had to prove by clear and convincing evidence that a change in that custodial environment would be in the best interests of the minor children.

The law of Custody; is found in state Law MCL 722.28; and explained inBerger v. Berger; Fletcher v. Fletcher;

Since there are several levels of burden of proof a higher court here was asked to review the local trial court on whether the trial court properly applied the "clear and convincing evidence" standard; MCL 722.27(1)(c); Foskett v. Foskett;
Clear and convincing evidence defined; Kefgen v. Davidson;


The clear-and-convincing evidentiary standard imposes a higher burden of proof than
the preponderance-of-the-evidence standard. See id. Albeit in a different context, we have
defined clear and convincing evidence as evidence that “‘“produce[s] in the mind of a trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”’” Kefgen v Davidson, 241 Mich App 611, 625; 617 NW2d 351 (2000) (citations omitted); see also In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).


Whether the trial court's analysis of the best interest factors (MCL 722.23) was against the great weight of the evidence; Eldred v. Ziny; Rittershaus v. Rittershaus; Sinicropi v. Mazurek;
We want to know what the judges based their opinion on in change of custody disputes. Custody issues are to be resolved in the child’s best interests, as measured by the best interest factors enumerated in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).

The best interest factors of MCL 722.23include:

(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

(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.

The circuit court must state its findings and conclusions regarding each of the best
interest factors. Rittershaus v Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007).
Failure to do so generally results in reversible error. Id. However, the court need not comment
on every matter in evidence or declare acceptance or rejection of every proposition argued.
Fletcher, 447 Mich at 883 (BRICKLEY, J.), 900 (GRIFFIN, J.). Moreover, a court need not give equal weight to all the factors, but may consider the relative weight of the factors as appropriate to the circumstances. Sinicropi v Mazurek, 273 Mich App 149, 184; 729 NW2d 256 (2006). Here the lower circuit court addressed each factor or determined that it was not applicable.

The Mother had staked here claim on the position that the lower court did not evaluate factor g properly.

Factor g; Whether expert testimony is always required for a trial court to find a party's mental illness negatively impacts her or his ability to parent

The circuit court considered testimony concerning the condition of defendant’s home, the
cleanliness of the parties’ minor children, and the effect of defendant’s bipolar condition on the parties’ daughter. We disagree with defendant that the circuit court’s findings were against the great weight of the evidence. There was ample testimony establishing that defendant’s home was unclean and smelled of animal excrement, and that the parties’ minor children were dirty, unkempt, and always in need of a bath. The record also clearly established that the parties’ daughter had anxiety and emotional issues that were negatively affected by defendant’s bipolar disorder. Contrary to defendant’s argument on appeal, expert testimony is not always required before a circuit court may find that a party’s mental illness negatively impacts his or her ability to parent. Nor has defendant presented any evidence that the circuit court was unable to properly consider this issue without expert testimony.

The Michigan Court of Appeals conclude, based on a review of the totality of the circumstances surrounding the circuit court’s analysis, that the court understood and applied the correct standard.

The Michigan Court of Appeals decided the trial court correctly applied the "clear and convincing evidence" standard and its findings on best interest factor g were not against the great weight of the evidence, the court affirmed the trial court's order granting the plaintiff-father's petition for sole custody of the parties' minor children.

See , Michigan Court of Appeals (Unpublished 10/1/09),Case Name: Husen v. Campbell ,e-Journal Number: 43930 ,Judge(s): Per Curiam - Jansen, Fort Hood, and Gleicher , UNPUBLISHED,No. 289918,Bay Circuit Court,, LC No. 07-007522-DC[This case modified for presentation, do not rely on its contents without consulting an attorney.-trb]
Posted here by
Terry Bankert

Sphere: Related Content

No comments: