Friday, March 26, 2010

MOM'S IMMMORALITY NOT A BIG DEAL SAYS TWO COURTS!

DAD LOSES A CHANGE OF CUSTODY ATTEMPT.

FLINT Divorce Attorney Terry R. Bankert discusses here several issues:
Motion to change custody; Brown v. Loveman; Powery v. Wells; Foskett v. Foskett; The best interest factors (c), (d), (e), and (f); Pierron v. Pierron; Truitt v. Truitt

Flint Divorce Lawyer Terry Bankert observes if they were residents of Michigan these Divorce laws would apply to Tiger Woods and Sandra Bullock as they do to you in your Family Laws conflicts.

THIS POST
http://goodmorningflint.blogspot.com/2010/03/moms-immmorality-not-big-deal-says-two.html

This unpublished Family law opinion was recently released by the Michigan Court of Appeals
The Divorce Case Name is Chrivia v. Chrivia. The article was circulated by e-Journal Number: 45369. The Judges who decided the case are Judge(s): Per Curiam - Servitto, Bandstra, and Fort Hood. The case is UNPUBLISHED and released on March 18, 2010. The Appellate Court number is v No. 293702. The local Family alw court was Lapeer Circuit Court Family Division. The lower court Divorce case number is LC No. 04-034925-DM

Flint Divorce lawyer Terry Bankert observes the Michigan Court of Appeals found no abuse of discretion in the Lapeer Family Courts balancing of the best interest factors.
Family law Attorney Bankert also observes Lapeer also did not error in finding the plaintiff-father failed to prove by clear and convincing evidence it was in the minor child's best interest to grant his motion for change of custody.

MOM AND DAD MARRIED IN 1989 SPLIT IN 2004

Plaintiff and defendant married in 1989 and divorced in 2004.

THERE IS ONE CHILD

The marriage produced one child (J), born in 2000.

JUDGMENT OF DIVORCE GRANTED JOINMT LEGAL AND PHYSICAL CUSTODY
The parties entered into a consent judgment of divorce granting them joint legal and joint physical custody.

DADS PLANNED MOVE TO WEST VIRGINIA

In 2007, the defendant-mother, concerned over plaintiff's imminent move to West Virginia, sought sole physical custody.

MOM GRANTED PRIMARY PHYSICAL CUSTODY

She was instead granted primary physical custody, and plaintiff was granted permission to move to West Virginia.

CHILD VISITS DAD WHO THEN PLAYS GAMES BY SEEKING PROTECTIVE ORDER

In January 2009, while J was with plaintiff in West Virginia, he sought and received in West Virginia courts an emergency protective order and temporary custody of J.

MOM SEEKS PROTECTION OF LAPEERR COURT

Meanwhile, defendant filed a motion in the Lapeer Circuit Court for J's return.

LAPEER SAYS IGNORE THIS NONSENSE IN WEST VIRGINIA AND GET THIS CHILD BACK TO MICHIGAN

The trial court informed plaintiff the temporary custody granted in West Virginia was without effect and he was required to return J to defendant, and attend a hearing in the trial court.

DAD COMES B ACK TO LAPEER WITH HIS TAIL BETWEEN HIS LEGS

Plaintiff complied, and on the date of the hearing filed a motion for change of custody.

DAD GETS A REFEREE NOT THE JUDGE

The FOC referee heard plaintiff's motion, taking testimony from plaintiff, defendant, and plaintiff's wife. The referee also interviewed J in camera.

DAD LOSES IN FRONT OF REFEREE

The referee recommended plaintiff's motion be denied, and made findings of fact on the record.

MOM LETS BOYFRIENDS LIVE IN CONFUSING THE MINOR CHILD. MOMS LUST ALLOWED DAD THE CHANGE IN CIRCUMSTANCES NECESSARY TO GET CUSTODY BACK INTO COURT. ROUND 1 DAD WINS

The referee found defendant having had two live-in boyfriends in the space of two and a half years was both a sufficient change of circumstances and a proper cause to allow a change of custody.

MOM HAS THE CUSTODIAL ENVIRONMENTROUND 2 DAD LOSES

The referee found there was an established custodial environment based on the length of time defendant had primary physical custody.

DAD PRESENTS HIS BEST INTEREST ARGUMENT. ROUND 3 DAD LOSES

Plaintiff's arguments were aimed at best interest factors (c), (d), (e), and (f). The referee explained plaintiff prevailed on factor (c) due to his higher income, but noted both parties were "struggling," and neither party was "suffering." Because the disparity in income was not dramatic, the referee did not give it great weight. With respect to factors (d) and (e), the referee expressed concerns about defendant's two live-in boyfriends.

LAPEER FAMILY COURT , YES THERE WERE CONCERNS BUT NO ENOUGH TO US. ROUND 4 DAD LOSES

The trial court agreed there were "certainly legitimate concerns about the Defendant's lifestyle and her manner of involvement of male companions in the child's life." The referee's and the trial court's concerns on the impact of defendant's decision to have her boyfriends live in the home with J did not impact the stability and prospects for stability of the home. Thus, there was no error in the handling of these factors.

MOMS LUST IN BRINGING MULTIPLE SEX PARTNERS INTO THE HOME WITH THE CHILD NON PER SE IMORAL?SAY WHAT?

The referee found the parties were equal as to factor (f), specifically rejecting plaintiff's argument cohabitation outside of marriage was per se immoral under case law. Affirmed.,

TOO BAD FOR DAD.

High Court supported the decision of the Lapeer Court. Nice try but too bad for Dad, again.

THE LAW APPLIED
 
BECAREFUL WHO YOU ELECT AS YOUR LOCAL FAMILY COURT DIVORCE JUDGE

The Michigan Court of Appeals will buy into any decision of the Lapeer Court unless the
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.” MCL 722.28; Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004).

IN FLINT FAMILY COURT AND ALL MICHIGAN DIVORCE COURTS CHANGE HAS TO BE FOUND TO ALTER AN OLD CUSTODY ORDER

The first step in deciding a motion for change of custody is determining whether proper
cause or change of circumstances merits such a change. MCL 722.27(1)(c); Powery v Wells, 278
Mich App 526, 527; 752 NW2d 47 (2008).

DAD HAD A HEAVY LOAD HERE

The party seeking the change bears the burden of establishing this by a preponderance of the evidence. MCL 722.27(1)(c).

MOM HAD THE IMMORAL CUSTODIAL ENVIRONMENT SAID DAD

The next inquiry is whether there is an established custodial environment. Powery, 278
Mich App at 528.

There was an established custodial environment based on the length of time defendant had primary physical custody. This finding is not against the great weight of the evidence. See Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).

THERE WAS CAUSE, CUSTODIAL ENVIRONMENT NOW WHAT IS IN THE CHILD BEST INTEREST

Having established that there is proper cause or a change in circumstances, and that there
is an established custodial environment, what remains to examine is whether plaintiff established by clear and convincing evidence that the change in custody is in the best interest of J. Powery, 278 Mich App at 528.

JUDGES HAVE TO FOLLOW OUR LAW.

The Legislature has enumerated the following 12 factors to be
considered when making the best interest determination:

(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

(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. [MCL 722.23.]
 
JUDGES CAN PICK AND CHOOSE THE BEST INTEREST THEY WANT TO USE TO REACH THEIR OBNJECTIVE.

While the best interest factors must be considered, a trial court need not give each factor equal
weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).

DID DAD PICK THE WRONG FACTORS TO MAKE A BIG DEAL ABOUT?

It appears as though plaintiff’s arguments are aimed at best interest factors (c), (d), (e),
and (f). The referee explained that plaintiff prevailed on factor (c) due to his higher income, but
noted that both parties were “struggling,” and that neither party was “suffering.” Because the
disparity in income was not dramatic, the referee did not give it great weight. With respect to
factors (d) and (e), the referee expressed concerns about defendant’s two live-in boyfriends. The trial court agreed that there were “certainly legitimate concerns about the Defendant’s lifestyle
and her manner of involvement of male companions in the child’s life.” The referee’s and the
trial court’s concerns on the impact of defendant’s decision to have her boyfriends live in the
home with Joshua does impact the stability and prospects for stability of the home. Thus, there
was no error in the handling of these factors below.

The referee found that the parties were equal with respect to factor (f), specifically
rejecting plaintiff’s argument that cohabitation outside of marriage was per se immoral under
case law. See Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988)).

DAD DID NOT GET A HEARING INFRONT OF THE JUDGE

In sum, the referee considered all of the statutory factors, weighed them, and found that
the factor on which defendant prevailed outweighed the two factors on which plaintiff prevailed.
The trial court, reviewing the testimony, came to the same conclusion.

THE MICHIGIAN COURT OF APPEALS FINDS AGAINST THE FATHERS INTEREST

Posted here by
Terry Bankert
http://www.attorneybankert.com/
Check out our Statewide post
http://www.dumpmyspouse.com/

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