DAD FOLLOWS THE RULES AND LOSES CUSTODY BECAUSE THE COURT PROCESS WAS SLOW.

Flint Divorce Attorney comments on several Issues:

MOTION FOR CHANGE OF CUSTODY AND ISSUES OF ;

CUSTODIAL ENVIRONMENT

*Whether there was an established custodial environment with the defendant-mother; Phillips v. Jordan; McIntosh v. McIntosh; Harvey v. Harvey; Jack v. Jack;

BURDEN OF PROOF

*Whether after finding an established custodian environment existed with defendant alone the trial court used that finding to reverse the burden of proof on the change of custody motion; Fletcher v. Fletcher (After Remand); Vodvarka v. Grasmeyer;

CHANGE IN CIRCUMSTANCES

*Whether the trial court determined whether there was a change of circumstances and properly changed the custodial arrangement; The Child Custody Act


See generally Court: Michigan Court of Appeals (Unpublished 4/6/2010),Case Name: Spears v. Ziemba, e-Journal Number: 45467,Judge(s): Per Curiam – Wilder, O’Connell, and Talbot ,Wayne Circuit Court Family Division,LC No. 00-024757-CC

WAYNE COURT GOT IT RIGHT

The Wayne Circuit Court Family Division called the trial court properly found there was an established custodial environment with the defendant-mother, it did not improperly shift the burden of proof, and granted her motion for change of custody.

THE PARENTS WERE NOT MARRIED

The parties met in 1998. They did not marry. Their only child, M, was born in 1999. Plaintiff commenced this action in 2000. A year or two later, the parties moved to Iowa with M. Later, plaintiff returned to Michigan. M remained in Iowa.

FIRST ORDER WAS SOLE PHYSICAL CUSTODY TO DAD, THE PLAINTIFF

In November 2003, the trial court entered a consent judgment of custody, providing for joint legal custody, and granting sole physical custody of M to plaintiff.

MOM GOT A DETAILED PARENTING TIME PLAN

A detailed parenting time schedule was also set forth in the judgment.

DAD GETS A JOB OFFER AND MOVES, THE PARTIES HAD JOINT LEGAL CUSTODY

In 2007, plaintiff received a job offer with a company located in South Carolina. Plaintiff accepted the job offer and during the time defendant was exercising her summer parenting time with M, plaintiff moved to South Carolina.

WAYNE COURT SAID NOW MOM HAD CUSTODIAL ENVIRONMENT! WHY?

The trial court concluded there was an established custodial environment for M with defendant …

DAD HAD AN ORDER NOT TO REMOVE THE CHILD FROM THE STATE AND HE MOVED.

…because M had been living with defendant since the summer of 2007, pursuant to the trial court's order M not be removed from the state of Michigan after plaintiff moved to South Carolina.


WHY DID MOM HAVE THE CUSTODIAL ENVIRONMENT?

SCHOOL

The trial court noted under its prior order, M was enrolled in school in Michigan, …

LIVING WITH MOM

…had been with defendant for an appreciable time, and …

LOOKED TO MOM FOR GUIDANCE

…naturally looked to her for guidance, discipline, necessities of life, and parental comfort.

EMOTIONAL TIES

The trial court also found the emotional ties between M and defendant were stronger than those between the child and plaintiff.

DAD SAID THE COURT TOOK TOO LONG ON HIS MOTION AND IS PARTY RESPONSIBLE FOR THE CHANGE IN THE CUSTODIAL ENVIRONMENT…DELAY!!!!!

While the court acknowledged plaintiff's valid complaint about the trial court's failure to act expeditiously on his motion to change domicile and on the motion to change custody by permitting a two year delay before bringing the matter to conclusion, nevertheless,….

TOO BAD FOR DAD SAYS THE COURT

…. on the record before the court, the trial court's finding there existed an established custodial environment with defendant was not against the great weight of the evidence.

IT WAS DADS DECISION TO MOVE, HE CAUSED THE CHANGE

The trial court's February 2008 order found a change of circumstances had occurred because plaintiff's relocation to South Carolina led to a change in the established custodial environment.


Accordingly, the trial court did not fail to find the requisite change in circumstances warranting consideration anew of the custodial arrangement. Affirmed.

TIMELINE

The parties met in 1998.

They did not marry.

One childborn in 1999

Plaintiff commenced this action ,custody,in 2000.

A year or two later, the parties and child moved toIowa

Later, mom returned to Michigan.

The child remained with her father in Iowa.

November 2003, the Wayne Court entered a consent judgment of custody, providing for

joint legal custody, and granting sole physical custody of child to dad.

A detailed parenting time schedule was also set forth in the judgment for mom.

2007, dad received a job offer with a company located in South Carolina.

DAD accepted the job offer and during the time Mom defendant was exercising her summer parenting time with the child dad moved to South Carolina.

DAD TOOK THE JOB AND FILED A SPEEDY MOTION, THIS WAS HIS ONLY OPTION

June 28, 2007, dad filed a motion to change domicile in theWayne County Family Court.

The Court procedure caused dads motion to be referred to the circuit court’s Family Evaluation, Mediation and Counseling unit (FEMC), for investigation and recommendation on the motion to change domicile.

THE COURT PROCESS DRAGGED ON FOR 30 DAYS

Now 30 days have elapsed, the summer is ending Dad already had sole custody being exercised is a satte other than Michigan he just wanted to move to a different state with the child.

COURT TELLS DAD YOUR CHILD WILL STAY IN SCHOOL IN MICHIGAN

My read is that the Wayne Court punished father for moving without a court review. When the FEMC recommendation was still pending in August 2007, the Wayne Family Court trial court judge ruled that the child would remain in Michigan and attend school pending a hearing on the motion. This I my opinion was a court caused change in custodial environment.

AT 60 DAYS A PSYCHOLOGIST SAYS THE CHILD SHOULD GO WITH DAD

In September 2007, a psychologist for FEMC recommended granting the request to change domicile.

THE WAYNE COURT WAS IN NO HURRY NO HEARING GRANTED UNTIL SIX MONTHS AFTER THE FILING OF DADS MOTION

The trial court, however, did not hold an evidentiary hearing on the motion to

change domicile until January 2008, and following the hearing …

THE JUDGE WAS STILL IN NO HURRY

…he took the matter under advisement.

MOM WOKE UP AND FILED HER OWN MOTION TO CHANGE CUSTODY, THE JUDGE BY DELAY HAD GIVEN HER A GIFT OF OPPORTUNITY


Before the January 2008 evidentiary hearing, in December 2007, defendant had filed a
motion for change of custody.

THE COURT DENIED THE FATHERS REQUEST TO CHANGE THE CHILDS DOMICILE FROM ONE STATE TO ANOTHER. THE CHILD HAD NOT BEEN LIVING IN MICHIGAN

In February 2008, the trial court denied the motion to change domicile.

CATCH 22 APPLIED HERE . BY SUBMITING TO THE COURT WHEN NO CHANGE OF CIRCUMSTANCES EXISTED THE COURTS OWN DELAY WAS FOUND TO HAVE CREATED A CHANGE IN CIRCUMSTANCES. THE HIGHER COURT SAID OKAY.

The trial court also held that an evidentiary hearing was required on the motion to

change custody because there had been a change in the established custodial environment due to plaintiff’s relocation and the child having remained in Michigan, and thus, there had also been a change in circumstances.

DAD APPEALED LATE

In April 2008, plaintiff filed a delayed application for leave to appeal in this Court from

the trial court’s August 2007 order denying the motion to change domicile. This Court denied the delayed application for leave, Spears v Ziemba, unpublished order of the Court of Appeals, entered June 26, 2008 (Docket No. 284967), stating in part:

In light of plaintiff’s failure to appeal the February 11, 2008[,] opinion and order denying his motion to change the child’s domicile and his failure to remain in Iowa, the delayed application for leave to appeal is DENIED for failure to persuade the Court of the need for immediate appellate review.

THE WAYNE COURTS HEARING ON MOMS REQUEST MUST HAVE BEEN FAULTY. WHY?

However, the matter is REMANDED to the trial court to promptly conduct a hearing on

defendant’s motion to change custody.

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