Jackson County Child Custody case posted by Flint Divorce Attorney Terry Bankert 235-1970

Jackson County Divorce case Change of Custody review by Flint Divorce Lawyer.
May 31, 2010
The Michigan Court of Appeals , No.295175, reviewed a Jackson Circuit Court divorce case , dealing with Jackson County Child Custody, LC No. 05-003997-DM.This unpublished opinion was decided May 18,2010 .

This change of custody case is reviewed here by Flint Divorce attorney Terry Bankert. If you have questions on Family Law or need immediate help call 1-810-235-1970.

Issues reviewed in the Jackson Divorce case were: proper cause, counseling, custody, child custody, counselor’s, significant effect, well-being, medication, behavioral, custody order, legal action, preponderance, materially, adjusting, revisit, modify, following facts, conversation

In this Jackson Divorce case father /Plaintiff appeals as of right the ( Jackson Circuit Court )trial court’s order denying his motion to modify judgment of divorce regarding child custody, parenting time, and child support of the parties’ minor child. The Michigan Court of Appeals upheld the action of the Jackson Circuit Court.

Following is the opinion. This writer has altered spacing and added CAP HEADLINES for media presentation and SEO.

*

DID THE JACKSON COUNTY CHILD CUSTODY DECISION FAIL TO FIND A CHANGE IN CIRCUMSTANCE?

The sole issue on appeal is whether the trial court erroneously concluded that plaintiff failed to establish proper cause or change in circumstances to warrant review of the existing child custody order.

IT IS HARD TO CHANGE CUSTODY ORDERS

A trial court may modify or amend child custody orders because of change in circumstances or for proper cause shown. #”MCL 722.27(1)(c). Plaintiff, as the moving party, carried the burden of proof to establish either a change in circumstances or proper cause by a preponderance of the evidence. #”Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003).

IF YOU WANT TO CHANGE CUSTODY HERE IS WHAT YOU HAVE TO DO.

To establish a change in circumstances, plaintiff must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. #”Killingbeck v Killingbeck, 269 Mich App 132, 145; 711 NW2d 759 (2005). [*2] To demonstrate proper cause necessary to revisit a custody order, plaintiff must prove the existence of an appropriate ground for legal action to be taken by the trial court. #”Vodvarka, 259 Mich App at 512.

FATHER SAID MOTHER WAS DOING SEVERAL THINGS WRONG

Plaintiff asserted that the following facts demonstrate change in circumstances:

defendant stopped giving the child necessary medications;

defendant made decisions regarding counseling for the child without affording plaintiff an opportunity to participate in such decisions;

and the parties’ poor communication materially affects the child’s care.

FATHER SAID THE CHILD HAS BEHAVIORIAL PROBLEMS

Plaintiff also contended that the following facts demonstrate proper cause: the child developed behavioral problems after the entry of the existing child custody order and plaintiff moved closer to defendant’s residence.

MICHGIAN COURT OF APPEALS SAYS FATHER DID NOT PROVE ENOUGH

We conclude that plaintiff failed to establish by a preponderance of the evidence either a change in circumstances or proper cause to warrant review of the existing child custody order.

THE JACKSON DIVORCE COURT MADE SEVERAL FINDING IN THIS CHANGE OF CHILD CUSTODY CASE

The trial court found that defendant decided not to give one particular type of medication to the child based on the advice of a healthcare professional. As for the counseling, the record indicates that defendant took the child for counseling [*3] for a little over three months, between September and November of 2008.

The counselor had a telephone conversation with plaintiff in December 2008 at which time plaintiff expressed shock that the child needed counseling and indicated he wanted to participate. In January 2009, when the counselor contacted defendant, she reported that the child was doing great and no longer needed counseling. In a subsequent conversation with plaintiff, the counselor reported that he could meet with plaintiff to address his questions and concerns but that defendant felt the child was doing well and did not need to continue.

The counselor noted that “[w]hereas in [their] first contact [plaintiff] questioned whether [treatment] was needed to begin with, he now questions whether [the] decision to stop is appropriate.” The trial court concluded that it was understandable that the child was having adjustment difficulties and that it did not think that those difficulties were to be expected and were not enough to create a situation creating “change enough for me to look at this again.” Finally, with respect to the communication issues, the trial court noted that the child has “unlimited access” to plaintiff [*4] and found that “[i]t sounds like the parties still communicate okay and that [plaintiff is] still involved in certain extracurricular activities.”

FATHER DID NOT PROVE A MATERIAL CHANGE

Based on the record before us, we conclude that plaintiff’s allegations regarding failure to give medication, decisions related to counseling, and the parties’ poor communication were not of such magnitude to have a significant effect on the child’s well-being. #”Id. at 513.

The record does not reveal any material changes that have or could have a significant effect on the child’s well-being. #”Killingbeck, 269 Mich App at 145. Further, we conclude that plaintiff’s allegations related to the child’s behavioral problems or plaintiff’s recent move were insufficient to establish proper cause.

The trial court concluded that the behavioral problems were to be expected and the counselor’s notes indicated that, although the child was having problems adjusting, he observed some improvement.

We conclude that, absent some showing of potential injury or harm to a child, a child’s problems stemming from difficulties adjusting to a change in custody, by themselves, are insufficient to establish proper cause to reevaluate a custody determination. Were it otherwise, [*5] custody decisions would never be settled. Thus, plaintiff also failed to establish the existence of an appropriate ground for legal action to be taken by the trial court. #”Vodvarka, 259 Mich App at 512.

FATHER DID NOT CARRY HIS BURDEN

Because plaintiff failed to carry his burden to demonstrate either a change in circumstances or proper cause to warrant review of the existing custody order, the trial court was not authorized to revisit the existing child custody decision and engage in a reconsideration of the statutory best interest factors. #”Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).

On the record, the trial court’s denial of plaintiff’s motion was not an abuse of discretion because it was not so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. #”Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).

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A Flint Divorce Attorney.

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Tags:jackson County, child custody, flint divorce attorney, attorneybankert.com, dumpmyspouse.com, Michgian Divorce
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FLINT LESSONS FROM AN OAKLAND COUNTY CHILD CUSTODY CASE

HERE Oakland County Child Custody and child support as discussed by Terry Bankert a Flint Divorce Lawyer. To talk to a divorce Lawyer about your family law issues call 810-235-1970

What follows is principally Oakland Circuit Court ,LC No. 2007-736726-DC, OLGA GENNADYEVNA DEWALD, Plaintiff-Appellee, JEROME WESTFIELD DEWALD, Defendant-Appellant. State of Michigan Court of Appeals, UNPUBLISHED ,May 25, 2010 ,,v No. 294094 ,Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. ,PER CURIAM.
Note this opinion has been altered for media presentation see original article at [1].


FATHER Defendant appeals as of right from a n OAKLAND circuit court order granting his motion for relief from a default judgment of filiation, CHILD custody, CHILD parenting time, and child support.

We affirm. AND AGREE WITH THE OAKLAND COUNTY COURT

DIVORCED IN RUSSIA

In June 2006, the parties divorced in Russia.

MOTHER NEEDS ENFORCEABLE MICHIGAN ORDER

In July 2007, MOTHER plaintiff filed a complaint in Michigan seeking an order awarding her custody of the parties’ two minor children and child support.

FATHER ON PAROL THOUGHT TO HAVE RETURNED TO RUSSIA

According to the complaint, defendant “was on parole for larceny by conversion and is
suspected to have illegally moved back to Russia.”

MOTHER TRIED TO SERVE AT MICHIGAN ADDRESS

Plaintiff tried unsuccessfully serving the summons and complaint on defendant at an address in East Lansing.

COURT AUTHORIZES ALTERNATE SERVICE

In November 2007, the circuit court authorized alternate service by posting in the Oakland County courthouse and publication in the Oakland County Legal News.
THREE WEEK PROCESS
After posting and publication took place over the course of three weeks in December 2007, on January 24, 2008 plaintiff filed an application for a default of defendant, which the court clerk entered the same day.

02/29/2008 COURT ENTERS A DEFAULT JUDGEMENT
On February 29, 2008, the circuit court entered a default judgment of filiation, custody, parenting time and child support.
05/2009 COUNRT ENTER A BENCH WARRANT RE: UNPAID CHILD SUPPORT OVER $10,000

In early May 2009, the circuit court ordered that a bench warrant issue for defendant’s
arrest on the ground that he had failed to appear at a show cause hearing concerning his unpaid
child support, which exceeded $10,000.
05/2009 FATHER PRESENTS HIMSELF AND WARRANT LIFTED
Later in May 2009, the circuit court discharged the bench warrant after defendant had appeared “in friend of the court” on May 18, 2009.

FATHERS SAYS THERE SHOULD NOT HAVE BEEN AN ORDER HE WAS NOT NOTIFIED
In July 2009, defendant moved for relief from judgment under MCR 2.612, arguing that he never
received notice of plaintiff’s complaint or the default judgment, …

FATHER SAYS MOM LIED SHE KNEW WHERE HE WAS, IN RUSSIA
and that plaintiff fraudulently misrepresented to the court that she did not know his address in Moscow. In an August 2009 addendum to the motion for relief from judgment, defendant insisted that the default judgment against him “[wa]s void for lack of personal jurisdiction.”

COURT AFTER FOUND MOTHER KNEW WHERE HE WAS

After a lengthy hearing, the circuit court on August 12, 2009 granted defendant relief from judgment pursuant to MCR 2.612(C)(1)(f), finding that plaintiff knew defendant’s address in Moscow but did not disclose it to the court or attempt to serve him there, despite ,

(1) having many contacts with defendant
between the filing of the Michigan custody action and the circuit court’s entry of the default
judgment, and

(2) serving defendant successfully at his Moscow address in relation to a lawsuit
initiated in Russia.
THE CIRCUIT COURT ORDER
The circuit court’s order read, “The relief from judgment is granted. Support
arrearage and custody and parenting time provision is set aside. There is no child support
arrearage. This order shall be presented to the U.S. Embassy for return and issuance of passport.
Retroactive support is reserved.”1

FATHERS SAYS COURT FOUND HIM THE WINNER AND DID NOT GIVE HIME THE PRIZE.

Defendant avers on appeal that the circuit court failed to recognize the nullity of its
default judgment, its lack of personal jurisdiction over him, its erroneous reservation of the
retroactive child support issue, and its error in not granting relief under MCR 2.612(C)(1)(d)
instead of subrule (f).

THE MICHIGAN COURT OF APPEALS IS REVIEWING TO DETERMINE IF THE OAKLAND COUNTY CIRCUIT COURT MADE A MISTAKE

We review for an abuse of discretion a trial court’s ruling on a motion for
relief from judgment. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial
court abuses its discretion only when it selects a decision that falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).

We review de novo issues of statute and court rule application and
interpretation, constitutional issues, and whether a court possesses personal jurisdiction over a
litigant. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); In re Terry, 240 Mich
App 14, 20; 610 NW2d 563 (2000); In re Hawley, 238 Mich App 509, 511; 606 NW2d 50
(1999).

Under MCR 2.612(C), the following circumstances may warrant a grant of relief from a
judgment:

(1) On motion and on just terms, the court may relieve a party or the
legal representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the
judgment.
(2) The motion must be made within a reasonable time, and, for the
grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the
judgment, order, or proceeding was entered or taken. A motion under this subrule
does not affect the finality of a judgment or suspend its operation.
(3) This subrule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding; to
grant relief to a defendant not actually personally notified as provided in subrule
(B); or to set aside a judgment for fraud on the court.

THE COURT OF APPEALS SAID THE LOWER COURT CAN DESIGN THE RELIEF FROM JUDGEMENT, THE CASE DOES NOT JUST GO AWAY

We conclude that the circuit court did not abuse its discretion in granting defendant relief
from judgment pursuant to MCR 2.612(C)(1)(f), and that the court properly continued to
exercise personal jurisdiction over defendant.
THE COURT DID RECOGNIZE THE NULLITY AND ELIMATED ARREARAGES
Contrary to defendant’s argument, the circuit court did not refuse to recognize the nullity of the default judgment against him. “It is well settled that judgments that have been set aside are nullities.” Smith v MEEMIC Ins Co, 285 Mich App 529, 532; 776 NW2d 408 (2009).


As reflected in the language of the circuit court’s August
12, 2009 order, the court remained well aware that in granting defendant relief from the February
2008 default judgment it was rendering the default judgment a nullity;

THE COURT CONTINUED TO EXPLAIN
A. as we have noted, the court ordered that it was setting aside the default judgment’s “[s]upport arrearage and custody and parenting time provision[s],” and that

B.“[t]here is no child support arrearage.”

THE COURT THEN GAVE THE PARTIES A NEW START TO LITIGATE THE ISSUES

At the hearing, the circuit court additionally set the matter for trial and instructed the parties to begin discovery and negotiations concerning the issues of child support and custody.

THE OAKLAND COUNTY FAMILY COURT USED THE RIGHT RULES

Also contrary to defendant’s position on appeal, the circuit court properly invoked MCR
2.612(C)(1)(f) as the basis for granting him relief from the default judgment. Generally, to
justify a court’s grant of relief under subrule (f), three requirements must exist:

“(1) the reason for setting aside the judgment must not fall under subsections a through e,

(2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and

THE COURT DOES NOT HAVE TO COMMIT AN INJUSTICE TO SOLVE AN INJUSTICE

(3) extraordinary circumstances must exist that mandate setting aside the judgment in order to
achieve justice.” Heugel, 237 Mich App at 478-479. However, the Court in Heugel, id. at 481,
reaffirmed that “a trial court may properly grant relief from a judgment under MCR
2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under
subsections a through e are present, when additional factors exist that persuade the court that
injustice will result if the judgment is allowed to stand.”
THE OAKLAND CIRCUIT COURT PROPERLY CRAFTED A FAIR DECISION BASED UPON THEIR EXPIERENCE.

“The trial courts must be empowered to draw from their long experience, both with the particular case and from the bench, to determine whether any variables in the case warrant th[e] extraordinary relief” afforded in MCR 2.612(C)(1)(f). Id. at 480, quoting Kaleal v Kaleal, 73 Mich App 181, 189; 250 NW2d 799
(1977).

Subsection (f) invests “the court with a grand reservoir of equitable power to do justice
in a particular case and vests power in courts adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice.” Heugel, 237 Mich App at 481
(internal quotation omitted).
BUIT FATHER SAID HE NEVER GOT THE PAPERS , HIS PAROL AGENT TOLD HIM
Defendant testified that he never received service of any proceedings in plaintiff’s
Michigan custody action, and asserted in an affidavit that he had no knowledge of the case until
his parole officer in Michigan apprised him of it.
MOTHER SAYS SHE TOLD HIM IN 12/2008
Plaintiff estimated that she first mentioned the Michigan custody case to defendant in December 2008.
THE PARTIES AHD LIVED IN TWO LOCATIONS IN RUSSIA
The parties’ testimony agreed that over the course of their marriage, they lived at two primary locations in Moscow.

MOTHER SAID HE GOT THE PAPERS AT ONE OF THE ADDRESSES

Defendant recounted that he had lived at one of these locations as his permanent address between August
2006 and September 2008 and from May 2009 to the present; plaintiff confirmed that in October
2007 she had commenced litigation against defendant in Russia and that her Russian attorney
achieved service of the complaint on defendant at one of the two Moscow addresses they had
shared. Plaintiff recalled that she had forwarded to her counsel in the Michigan custody matter
the two addresses likely occupied by defendant in Moscow.
THE PARTIES HAD COMMUNICATION BUT MOTHER NEVER BROUGHT UP WHAT SHE WAS DOING IN MICHIGAN.
The parties did not dispute that over the course of repeated contacts, by email and otherwise, between 2006 and May 2008, plaintiff never mentioned to defendant the Michigan custody action or the default judgment.

IT WOULD HAVE BEEN UNJUST TO LET THE DEFAULT STAND

Given the ample evidence in this case supporting the circuit court’s findings that plaintiff had neglected to
properly serve defendant, despite possessing knowledge of his likely whereabouts that she did
not share with the court, an injustice would result if the court permitted the default judgment to
stand. Consequently, the circuit court acted within its discretion in granting defendant relief
under MCR 2.612(C)(1)(f).

HERE IS THE POINT FATHER DID NOT GET THE ORIGIONAL PAPER WORK SO THE ORDER DERIVED FROM THAT MUST FALL. BUT BY APPEARING TO PROTEST THE JUDGMENT HE IN FACT HAS FALLEN UNDER THE JURISDICTION OF THE COURT THAT CAN NOW MOVE FORWARD.

We reject defendant’s contention that the circuit court lacked personal jurisdiction over
him because he never received service of process. Our review of the record reveals that the
circuit court possessed personal jurisdiction on the basis of defendant’s general appearances in
the court.
FATHER ENTERD A GENERAL APPEARENCE
A party who enters a general appearance and contests a cause of action on
the merits submits to the court’s jurisdiction and waives service of process
objections. Generally, any action on the part of a defendant that recognizes the
pending proceedings, with the exception of objecting to the court’s jurisdiction,
will constitute a general appearance.
FATHER CREATED AN APPEARANCE ON THE FILE
Only two requirements must be met to render an act adequate to support the inference that there is an appearance:
(1) knowledge of the pending proceedings and (2) an intent to appear.
FATHER THEN SUBMITTED TO THE COURTS JURISDICTION OR CATCH -22
A party that submits to the court’s jurisdiction may not be dismissed for not having received
service of process. MCR 2.102(E)(2). [Penny v ABA Pharmaceutical Co (On
Remand), 203 Mich App 178, 181-182; 511 NW2d 896 (1993), overruled in part
on other grounds in Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 293; 731
NW2d 29 (2007).]

FATHERS PROCESS

In this case, before defendant sought relief from the default judgment and contested
plaintiff’s failure to serve him,
(1) he appeared at the friend of the court on May 18, 2009,
(2) he filed a motion to reduce the amount of child support the circuit court had ordered him to pay in
the default judgment,
(3) he requested a waiver of motion filing fees,
(4) he and plaintiff moved to opt out of friend of the court services,

(5) he negotiated a proposed stipulated order with plaintiff regarding child support, and
(6) he appeared via telephone at a July 8, 2009 hearing and expressed his desire to stipulate to a proposed order on the record, although the circuit court refused to allow the parties to opt out of friend of the court services. These actions establish that defendant had knowledge of the custody proceedings, intended to appear, and in fact made general appearances, thus submitting to the circuit court’s jurisdiction. Penny, 203 Mich App at 181-182. Moreover, at the hearing on the motion for relief from the default judgment, defense
counsel repeatedly conceded that the circuit court had personal jurisdiction over defendant and
that he wanted to continue litigating the issues of parenting time, child support, and custody.

ONCDE YOU ALLOW JURISDICTION TO ATTACH YOU CANNOT OBJECT TO IT.

Defense counsel’s affirmations of the circuit court’s personal jurisdiction constitute a waiver to
any present objections by defendant, which extinguishes any personal jurisdiction-related error.
Lease Acceptance Corp v Adams, 272 Mich App 209, 229; 724 NW2d 724 (2006) (“Challenges
to personal jurisdiction may be waived by either express or implied consent.”) (internal quotation
omitted); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d
805 (2003) (noting that “[a] party may not take a position in the trial court and subsequently seek
redress in an appellate court that is based on a position contrary to that taken in the trial court”)
(internal quotation omitted).
WHAT THE COURT DIOD WAS TO SET ASIDE A JUDGEMENT REACHED BY FRAUD
Although defendant submits that the circuit court erred in relying on Penny, 203 Mich
App 178, defendant appears to confuse the circuit court’s holdings. The court set aside the
default judgment against defendant on the basis of its conclusion that as a result of fraud by
plaintiff, defendant did not receive proper service of the complaint or notice of the default and
default judgment against him.
ONCE THE PRIOR ORDER SETR ASDIE THE COURT HAS CONTINUING JURISDICTION
The circuit court did not find that, because defendant had
appeared after entry of the default judgment, he made an appearance with respect to that default
judgment. Instead, the circuit court merely and correctly determined that it had continuing
subject-matter jurisdiction over the custody issue, MCL 722.26; Harvey v Harvey, 470 Mich
186, 192; 680 NW2d 835 (2004), and personal jurisdiction over defendant after he made general
appearances in the circuit court.
FATHER SAYS THE COURT VIOLATED HIS DUE PROCESS
Defendant also claims that the circuit court violated his due process rights..[FOOTE NOTE 2]


The failure of service of the complaint or default and default judgment on defendant deprived him of
procedural due process because the failure of service prevented him from having an opportunity
to be heard concerning the child custody, support, and parenting time matters. Krueger v
Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981).
LACK OF DUE PROCESS SET ASDIE THE JUDGEMENT BUT THE CASE CONTINUES
Although the initial lack of service deprived defendant of due process, the circuit court ultimately set aside the default judgment and directed that the parties litigate the issues anew. And, as noted, defendant made general appearances and submitted to the circuit court’s personal jurisdiction over him. Penny, 203 Mich
App at 181-182; see also In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985) (“A party
who enters a general appearance and contests a cause of action on the merits submits to the
jurisdiction of the court and waives service of process objections.”).


The only case defendant cites in support of his due process argument, Armstrong v
Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), does not apply to the instant
circumstances. In Armstrong, id. at 547-548, a court terminated the petitioner’s parental rights to
his daughter without notice in the course of an adoption proceeding.

The United States Supreme Court held that the lack of notice combined with the resultant burden of proof imposed on the petitioner when he eventually sought relief combined to violate his constitutional rights:

Had the petitioner been given the timely notice which the Constitution
requires, the . . . moving parties . . . would have had the burden of proving their
2 Defendant neglected to set forth this issue in his appellate statement of questions presented,
rendering it technically not properly before the Court. MCR 7.212(C)(5); English v Blue Cross
Blue Shield of Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004).
case as against whatever defenses the petitioner might have interposed. It would
have been incumbent upon them to show not only that [the adoptive father] met
all the requisites of an adoptive parent under Texas law, but also to prove why the
petitioner’s consent to the adoption was not required. Had neither side offered
any evidence, those who initiated the adoption proceedings could not have
prevailed.

Instead, the petitioner was faced on his first appearance in the courtroom
with the task of overcoming an adverse decree entered by one judge, based upon a
finding of nonsupport made by another judge. As the record shows, there was
placed upon the petitioner the burden of affirmatively showing that he had
contributed to the support of his daughter to the limit of his financial ability over
the period involved. The burdens thus placed upon the petitioner were real, not
purely theoretical. For it is plain that where the burden of proof lies may be
decisive of the outcome. Yet these burdens would not have been imposed upon
him had he been given timely notice in accord with the Constitution. [Id. at 551-
552 (internal quotation omitted).]
HERE FATHER HAD THE SLATE WIPED CLEAN
Here by contrast, defendant has already obtained relief in the form of wiping the slate clean in
these custody proceedings through the circuit court’s grant of his motion for relief from the
default judgment. Because defendant has the opportunity to litigate the custody issues anew, his
due process rights remain intact.
THE OAKLAND COURT WAS FAIR
With respect to defendant’s suggestions that the circuit court should not have granted
relief under MCR 2.612(C)(1)(f) “if an equally plausible alternative exists that will provide the
same result,” and that the circuit court harbored a bias against him, defendant has abandoned
these claims by neglecting to refer to binding authority in support of them. Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, regarding defendant’s judicial bias
claim, we have discerned nothing in the record tending to substantiate this assertion, and his bias
claim has become moot given that a new judge has been appointed to preside over his case.
Detroit v Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008).3
Affirmed.
MOTHER WON FATHER HAS TO PAY COSTS
Costs to plaintiff as the prevailing party on appeal. MCR 7.219(A).

Posted here by
Terry Bankert
http://attorneybankert.com
Of
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see
[1]
Original Opinion
http://www.icle.org/contentfiles/mlo/unpublished/20100525_294094.pdf

FOOT NOTE 1 In a subsequent motion for reconsideration, defendant maintained that the circuit court had
mistakenly granted relief under MCR 2.612(C)(1)(f), instead of subrule (d), because the court
never obtained personal jurisdiction over him. The circuit court denied the motion, discerning no
palpable error in its prior ruling.

FOOT NOTE 3 To the extent that defendant also urges this Court to peremptorily reverse the circuit court
pursuant to MCR 7.211(C)(4), we decline to consider this proposal because defendant did not
properly raise it in a motion before this Court, MCR 7.211(A)(2), (3), and he offers no authority
establishing the propriety of peremptory reversal

CAP HEADLINES ARE from Terry Bankert along with (trb), other extnal citations may be used.

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Police Respond 1.5.hours after a Road Blocking Personl Injury Accident.

DSCN0656,
originally uploaded by terrybankert.

5/27/10 at the Corner of Robert T. Longway Blvd and Franklin Ave, Flint MI, USA.

Thumnails of event 44 photos 11 video, copyrite waived (courtesy Terry Bankert), please use.

http://www.flickr.com/photos/30366181@N05/sets/72157624149699756/


At 3:15 a young man going West ran a red light and T-Boned a white truck. The white truck flipped and spun, AIR BAG DID NOT DEPLOY!

The driver went to the hospital. I arrived at 3:30 as the ambulance was leaving with the driver of the white truck.

Flint Police arrived at 4:30. Mott Community College arrived earlier, I had called.

The car was blocking the East lane of Robert T. Longway creating a back up and a dangerous situation as the East and West lane were driving head on.

The untold stoy is the level of informal citizen assistance that was at the scene. Good Job Flint Citizens. This energy needs to harnessed and utilized.

A Flint Board of Education truck stopped and assisted the driver of the white truck, a crime watch leader stopped his car and maintained radio contact with the Flint police, dozens of driver stopped expressing real concern for the driver of the white truck.

A citizen indicated that there were two "man with a gun calls" and several accident calls ahead of this call to Robert T and Franklin.

There was discussion by the crime watch guy that 911 ADMITTED they had mischaracterized the event, personal injury with road blocked.

Yes there were more important call for our limited police resources but this shows our loss of service in Flint when it takes over an hour to get police on the scene of a personal injury accident that is blocking a busy intersection.

One of the clips shows a senior citizens blaming the lack of response on the Mayor of Flint.

True or false, fair or unfair this is now Flint Mayor Dayne Wallings new reality! The Citizens of Flint are looking to blame someone for our lack of police protection and poor public saftey service. That appears to be you Mr.Mayor.

Thank You to the first responders formal and informal and the young man who stayed on the scene until police arrived to admit his guilt.


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Flint acting to lower crime.

With this comment I do not mean to be be negative nor a cheerleader, but what can Flint do to lower crime?
1. Action over inaction.
2.Transparency vs doubt and fear
3.Inclusive "real" community involvement.
4. Regular reports to the community on status of initatives launched. Accountability vs politics
...
5." broken window" vs arrest and prosecution
6.The above are nice ideas but the only real solution short term, less than multiple years, is additional permanent police deployment.
7. The Mayor, as he is doing, must seek out every option that there is funding for.
8.The council must watch the money.
9.The community should ask the mayor and the council what can we do to help.
10. The electorate must hold these decision makers accountable at regular elections never recalls.
To my council person and the mayor what can we do to help?

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MARK INGRAM II

MARK INGRAM II
Home Coming Celebration Atwood Stadium Flint MI. 05/22/2010
Please use copyright waived.Terry Bankert
http://www.flickr.com/photos/30366181@N05/sets/72157624116270996/

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FLINT DIVORCE LAWYER ASKS,HOW SHOULD BRITISH PETROLEUM BE PUNISHED?

Q:SHOULD BRITISH PETROLEUM (BP) SUFFER CORPORATE DEATH?
A:YES!


BP SHOULD SUFFER A CORPORATE DEATH SENTENCE, ASSETS SEIZED AND ALL BUSINESS ACTIVITY IN THE UNITYED STATES STOPPED. THE CORPORATE VEIL MUST BE LIFTED SHAREHOLDERS STRIPPED OF THEIR ASSET AND EMPLOYEES DISCHARGED…TO START

Just how much harm will we allow to our society be for we act?

……US should re-invoke the 'death penalty' for corporations by breaking up those negligent companies and selling off their interests.[3]

For examples see:
http://www.google.com/images?rls=com.microsoft:en-us:IE-SearchBox&oe=UTF-8&rlz=1I7ADBF_en&q=medieval+death&um=1&ie=UTF-8&source=univ&ei=HLn3S5HxOIaKlweI9dXFCg&sa=X&oi=image_result_group&ct=title&resnum=1&ved=0CDIQsAQwAA


Why do we object to the punishment of corporations? What “Bill of Goods” have we been collectively sold/

Some say 1. The innocent will suffer? 2. Employees will be laid off. [5]

If corporations want the same rights as people, their 'limited liability' should no longer apply. It's a position that makes sense, especially considering the way the financial, energy and health care industries have operated with impunity over the past several years. Is there any real force to this idea, though?[3]

CORPORATE RISK MANAGERS SAY. But in the aftermath of this tragedy, two important questions will emerge. They will be directed toward the management and board of directors of your organization. Employees, the media and the public will inevitably get around to asking:
"Did you take reasonable precautions to prevent a critical incident such as this from occurring, which could take a terrible toll on your work force?"
"Were you prepared to respond with proper protective and palliative actions for your people following a critical incident like this?"
The answers you are able to give could have enormous consequences for your company, its bottom line, and its future, because of an emerging concept of liability: Negligent failure to plan.[4]


For the past year, concern with terrorism has dominated public discourse in the United States. Our sense of security has been badly shaken, while politicians and the mass media have missed no opportunity to remind us of our vulnerability. This single-minded focus is distracting us from a major threat to our quality of life and our peace of mind. We should turn our attention to the corporate terrorism in our midst, name it, analyze it, and discuss what we can do about it.[2]

Why are the paradigms of deterrence and efficiency for punishing individual for harmful corporate acts not applied to the corporations themselves? Why do we punish the corporate offices and not the corporation?

“Money often costs too much.” - Ralph Waldo Emerson
There is no other way to frame it. In the battle for democracy the corporatists are winning. Under the 14th amendment, they believe the corporate 'person' shall not be discriminated against and should receive equal protection under the law. [3]

Wal-Mart has argued this corporate position as it insinuates its 'always low prices' and 'always low wages' into inner-city neighborhoods. The legal fiction of corporate personhood has allowed entities that never die and possess incredible resources to assert their own political will on almost every aspect of American life. [3]

The US Supreme Court has all but handed the rights of individuals over to multinational conglomerates. But with freedom comes responsibility, or so it does with human beings. [3]

Within the same month, neglect on the part of two major corporations, Massey Energy and British Petroleum (BP), have caused the deaths of 4o people. If a 'natural person' were responsible for these atrocities, our government would have them in chains awaiting a trial that might lead to their execution. So why don't we treat the corporate 'person' the same way? As progressive radio personality, Thom Hartmann, puts it: It's time to bring back the corporate death penalty.[3]

WHAT IS CORPORATE TERRORISM, CAN IT BE BY NEGLIGENCE?

1.Corporate terrorism are crimes committed to create more consumers. Such as fraud, the spread of misleading propaganda, and bribing politicians to pass bills that force people into become consumers. 2. A terrorist action that creates widespread panic, and nervousness and results in the loss of rights and/or monies. 3. Corp-terrorist~ VERY extreme capitalist who resorts to violence, or fear mongering to spread panic in everyday citizens in order to coerce them onto their side or to buy something to make themselves feel safe. Corporate terrorism is America’s most active terrorist movements. It is also the least prosecuted.[1]

President Barack Obama pretty much stated the obvious when he called the oil spill in the Gulf of Mexico "a massive and potentially unprecedented environmental disaster."[3]


The oil well pouring a river of crude into the Gulf of Mexico didn't have the normal type of remote-control shut-off switch used in Norway and the UK as last-resort protection against underwater spills, largely because the oil companies themselves are responsible for "voluntary" compliance with safety and environmental standards.[3]

It was in 1994, two years into the Clinton administration, when this practice of putting the fox in charge of the henhouse was legalized, about the same time George W. Bush was doing the same thing in Texas, a program pushed hard in the previous administration by Dan Quayle's so-called "competitiveness council" charged with deregulating industry. [3]

The accident has led to one of the largest ever oil spills in U.S. water and the loss of 11 lives. Voluntary safety for oil wells, but you and I can get stopped by the police if we don't fasten our safety belts? Eleven people have died because Halliburton and BP wanted to save money. In the first hundred years of this republic it was commonplace for rogue corporations to get the corporate death penalty - being shut down, dissolved, and having their assets sold off. Through the 19th century, it averaged around 2000 companies a year that got the axe. If the Supreme Court now says that corporations are people - and they did - then these corporations should be eligible for the corporate death penalty. Time to break up and sell off the pieces of Halliburton and British Petroleum.[3]

Currently, the Deepwater Horizon oil rig in the Gulf of Mexico is dumping 5,000 barrels of crude oil per day. The slick is quickly approaching the Gulf Coast and residents are preparing for an ecological disaster. Eleven workers are dead after an explosion that some believe could have been avoided. A simple mechanism could have been installed, but in the name of profit, safety again took a back seat. It might not have saved the workers' lives, but it could have thwarted the oncoming environmental onslaught. [3]

According to the Wall Street Journal:
The U.S. considered requiring a remote-controlled shut-off mechanism several years ago, but drilling companies questioned its cost and effectiveness, according to the agency overseeing offshore drilling. The agency, the Interior Department's Minerals Management Service, says it decided the remote device wasn't needed because rigs had other back-up plans to cut off a well.
An acoustic trigger costs about $500,000, industry officials said. The Deepwater Horizon had a replacement cost of about $560 million, and BP says it is spending $6 million a day to battle the oil spill. On Wednesday, crews set fire to part of the oil spill in an attempt to limit environmental damage.[3]


This is a classic example of American big business at work. The perpetual quest for short-term profit clouds the better judgment of management. Simply put, if it's not an immediate problem, why worry about it? If it blows up in our face, we'll pay a fine and move on. [3]

It appears that the larger a corporation gets, the more it takes on a casino style mentality, playing the odds with the house money because business has been so good for so long, why would it stop now? BP's spill is rare in oil drilling, but might have been avoided by spending as little as 0.01% of their profit margin on an additional safety measure. But the mindset is that it doesn't matter that the acoustic trigger is law in Brazil and Norway, if we don't have to use it, we won't. [3]

Keep in mind, this attitude didn't appear out of nowhere. It was developed over many years by the fantasy of nigh-limitless profits, lax government regulation and nominal fines that barely amount to a slap on the wrist. [3]

BP is, of course, unhappy it has to clean up what may be hundreds of thousands of barrels of oil. However, the market will correct the problem when crude oil jumps $15 or $20 per barrel. The increase in price will help BP recover its losses. [3]

When the stock price of BP plummets, it will present as a golden opportunity for investors to buy a load of cheap stock that will only increase in value once BP is back pumping oil instead of cleaning hundreds of miles of shoreline. The oil giant will simply write off its clean-up losses and live to fight - and pollute - another day. And don't worry about civil damages.[3]

BP's total liability is limited to $75 million thanks to a 1990 law passed when Big Oil lobbied our Congress immediately after the Exxon Valdez spill.[3]

So why is it so unlikely that either of these companies will be found criminally negligent, resulting in the imprisonment of any or all of its officers? Because, contrary to the popular TEA Party belief that big government controls our lives, it is actually the corporate candy of cheap goods and cheap energy that the American people can't live without. Most of us have no idea how to even begin thinking of a world that doesn't revolve around billions of barrels of oil or miles of processed coal. Big Energy knows it has us and our government wrapped around its greasy finger. Year after year our leaders pay lip service to the idea of a new way, a green energy future. [3]

But so little has come of it, thus far. It takes catastrophes like these to remind us that the energy business is dirty in so many ways. We can rely on fossil fuels as long as we're willing to pay the consequences; death, dismemberment, environmental disasters, terrorism, unstable nuclear states, all in the name of getting what we think we need. [3]

Hartmann's call to reinstate the corporate death penalty, actually holding big business responsible for its actions, is novel and admirable. In a world where money controls a government and its people, however, its only a pipe dream. Unless we decide that enough is enough, we're left to sit around and wait for the next fossil fuel debacle over and over again.[3]

The corporation is rightly held to be liable for what these corporate officers Have done. If not we should throw out the theories of vicarious liability.


These collection of thoughts posted by
Terry Bankert
http://attorneybankert.com

see
[1]

http://www.urbandictionary.com/define.php?term=corporate+terrorism

[2]
http://labornotes.org/node/1225

[3]
http://www.andjusticeforallblog.com/2010/05/americans-call-for-corporate-death-penalty-after-massey-and-bp-debacles.html

[4]
http://www.cmiatl.com/news_article46.html
[5]
http://books.google.com/books?id=j-gP_NDhAfMC&pg=PA77&lpg=PA77&dq=corporate+terrorism+negligence&source=bl&ots=So7Cl5VsFT&sig=ipm_AzJA144NTMVQLCZsq7zkG00&hl=en&ei=o7P3S-qlCcT6lweQz4XiCg&sa=X&oi=book_result&ct=result&resnum=4&ved=0CCkQ6AEwAw#

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FLINT MICHIGAN THE COME BACK CITY!

GOOD MORNING FLINT! (GMF)ANNOUNCED EARLY THIS MORING THAT IT HAD NOTHING TO DO WITH GETTING THE FEDERAL MONEY!

(GMF)Spokesperson Terry Bankert stated that the elected officials and Community institutions get to take credit when things go well,(WHY?) Because they get the blame when things are bad, and things are going well in Flint.

CONGRESSMAN DALE KILDEE

IF IT WAS FEDERAL MONEY THEN CONGRESSMAND DALE KILDEE HAD A LOT TO DO WITH DELIVERING THIS BACON.

Buick City is in line to get part of $800 million in federal funds aimed at cleaning up former General Motors plants nationwide. [1]
A spokeswoman for U.S. Rep. Dale Kildee, D-Flint, confirmed the inclusion of Buick City in the program but said further details of the plan were not immediately available. [1]

The White House announced the plan this morning. [1]

Erin Donar, communications director for Kildee, told The Flint Journal funding is included for Buick City in the plan. [1]

A major roadblock to redeveloping the former General Motors Buick City site could be wiped out with federal funds, the chairman of the Genesee County Board of Commissioners says. [2]

MAYOR DAYNE WALLING

Flint's Buick City could be the first to benefit from the more than $800 million in federal funding set aside for redevelopment of old General Motors properties, Mayor Dayne Walling said today. [3]

Speaking from Washington, D.C., where he's attending a conference on auto communities hosted by the White House council, Walling said Buick City has been a top priority for federal officials working with the old GM, officially known as Motors Liquidation Co. [3]

Walling said the federal funds are a "game-changing investment" for Flint — the city with the largest area in the nation of properties owned by the old GM[3]

BYE THE WAY, RECALL UNSPPORTED, OUR MAYOR IS DOING WHAT WE WANT HIM TO BE DOING!

Recall language against Flint's mayor has been rejected by the Genesee County elections commission. [4]

The recall against Flint Mayor Dayne Walling was filed by an appointee of former Mayor Don Williamson.[4]

The language claimed Walling "is robbing the budget" and "terrorizing Flint citizens" by not supplying enough police protection.[4]

Tuesday mornings election commission members ruled the language was unclear.[4]


GENESEE COUNTY COMMISSIONER JAMIE CURTIS

Chairman Jamie Curtis said today that the funding to clean up environmental problems at the Buick City property could help local officials turn their focus to push ahead with development of a truck-to-rail intermodal facility there. [2]

"That is great news," Curtis said of news that funding to clean up Buick City is included in an $800-million federal program announced by the White House today[2]


Economic development officials here have said developers have interest in turning the former Buick City site into a rail-to-truck intermodal hub but have held off on those plans because of the cost of an environmental cleanup at the property[1]

PRESIDENT OBAMA EVEN HAS SUGGESTED HE HAD SOMETHING TO DO WITH THIS MONEY COMING TO FLINT!

The Obama administration has proposed a trust fund of more than $800 million to pay for the cleanup of nearly 90 closed General Motors sites in 14 states. Here is a partial list of some of the former General Motors facilities included in the plan.
_ Wilmington Assembly, Wilmington, Del.
_ Fairfax I plant and parking lot, Kansas City, Kan.
_ Shreveport Assembly and Stamping, Shreveport, La.
_ Pontiac Assembly and Stamping, North Campus, Pontiac, Mich.
_ Flint North Powertrain and Buick City, Flint, Mich.
_ Lansing Plant 2, 3 and Fisher Body, Lansing, Mich.
_ Moraine Assembly and Delphi Moraine; Moraine, Ohio.
_ Inland Fisher Guide plant and Salina Industrial Powerpark; Syracuse, N.Y.
_ Janesville Training Center, Janesville, Wis.
_ Indianapolis Stamping, Indianapolis
_ Pittsburgh Stamping, West Mifflin, Pa.
_ Fredericksburg Powertrain, Fredericksburg, Va.
_ Former GM Delco Plant 5, Kokomo, Ind.
_ Framingham Landfill, Framingham, Mass.
_ Danville Central Foundary, Danville, Ill.
_ Delphi Interior and Lighting Systems, Trenton, N.J.[5]

THANK YOU ONE AND ALL…FLINT IS THE COMEBACK CITY
Posed here by
Terry R. Bankert
http://www.attorneybankert.com

see


[1]
http://www.mlive.com/auto/index.ssf/2010/05/post_9.html
[2]
http://www.mlive.com/auto/index.ssf/2010/05/genesee_county_board_of_commis.html
[3]
http://www.mlive.com/news/flint/index.ssf/2010/05/mayor_dayne_walling_flint_has.html
[4]
http://abclocal.go.com/wjrt/story?section=news/local&id=7446786
[5]
http://www.google.com/hostednews/ap/article/ALeqM5gG_pJJODKVeCNza-1zyFzKNw4oZgD9FPEN282

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Grandparents rights

Flint Divorce Attorney Terry Bankert discusses several Issues:

Tuscola grandparents get visitation;

Flint Divorce Lawyer looks at whether the trial court properly awarded plaintiffs grandparent visitation time after the death of their son (the children's father); MCL 722.27b(1)(c);

Grand Parents Rights Lawyer reviews Whether the trial court had the authority to order grandparenting time; MCL 722.27b(3)(b); Bowman v. Coleman;

Stipulation as to visitation; Koron v. Melendy; Agreement read in open court under MCR 2.507(G); Massachusetts Indem. & Life Ins. Co. v. Thomas; Wagner v. Myers;

Whether defendant's ( mothers )due process rights were violated; Lewis v. Legrow;

Whether the plaintiffs-grandparents proved the mother s decision to lessen grandparenting time created a substantial risk of harm to the children under MCL 722.27(4)(b)

WHERE DID THIS CASE COME FROM-TUSCOLA COUNTY MI

Court: Michigan Court of Appeals (Unpublished 05/11/2010)
Case Name: McQuillan v. Sanback
Tuscola Circuit Court
LC no 08-024762-DZ
e-Journal Number: 45763
Judge(s): Per Curiam - Talbot, Fitzgerald, and M.J. Kelly

MICHIGAN COURT OF APPEALS SAYS GRANDPARENTS GET PARENTING TIME

Concluding the plaintiffs-grandparents were statutorily entitled to seek a grandparenting time order after the death of their son Joshua, the children's father, and the defendant-mother stipulated with them to the grandparenting time plan, which ostensibly worked for all parties, the court held the trial court properly entered an order memorializing the agreement and denied the mother's motion for a JNOV or new trial.

The Grandparents son died as the result of injuries sustained in a car accident.

DID YOU KNOW?“A child’s grandparent may seek a grandparenting time order . . . [if] the child’s parent who is a child of the grandparents is deceased.” MCL 722.27b(1)(c). Here, plaintiffs are the grandparents of the two minor children. Because their son is deceased, plaintiffs are entitled to seek a grandparenting time order in accordance with MCL 722.27b(1)(c).

Grand Parent Plaintiffs filed a complaint against the defendant, their daughter-in-law, seeking to establish grandparenting time with Joshua's two children.

The grand parents and the mother (parties) entered into a stipulated settlement to address grandparenting time visitation at a hearing.

DID YOU KNOW?
… an agreement that is read in open court is binding on the parties under MCR
2.507(G).1 “Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party.” Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Absent a showing of fraud or duress, it is appropriate for a court to enforce the terms of the parties’ agreement. Id. “The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, or professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and MCR 2.507(G), formerly MCR 2.507(H) states: An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding
unless it was made in open court, or unless evidence of the agreement is in
writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney. [MCR 2.507(G).]

Mom’s Attorney Defense counsel stated in open court, "It is a fair and accurate full statement of the agreement of the parties of the settlement."

After the Grandparents (plaintiffs) filed a motion for entry of an order and a hearing, an order memorializing the agreement was entered.

Later, mom changed her minds (defendant) filed a motion for JNOV or a new trial alleging she was under duress at the time she reached the settlement, she did not understand what she was agreeing to, and it was not in the children's best interest to provide the level of grandparenting time specified in the agreement.
DID YOU KNOW YOU SHOULD BE CAREFUL WHAT YOU AGREE TO.
… defendant agreed to visitation time and entered a stipulated agreement on the record. Because defendant did not deny grandparenting time, plaintiffs’ burden to overcome the presumption provided by MCL 722.27b(4)(b) was never triggered. Essentially, defendant waived this presumption by agreeing to the grandparenting visitation time stipulation. Again, defendant may not benefit from a claim of error resulting from her own conduct. See Lewis, 258 Mich App at 210.

The Tuscola Circuit Court (trial court) denied the motion, holding the defendant was bound by the agreement placed on the record and it could not change the grandparenting time order without a showing of a change of circumstances.

The Tuscola Circuit court held defendant's challenge to the trial court's authority to order grandparenting time was without merit, as were her claims her due process rights were violated, and the grandparents were seeking to control the amount of visitation they have with the children in violation of MCL 722.27b(3)(b). The Michigan Court of Appeals agreed with the Tuscola Circuit Court (Affirmed).

Posted here by
Terry Bankert
http://attorneybankert.com

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MOM WORKS WITH FATHER, HE TRYS TO TAKE MORE, STEP MOMMY INVOLVED?

CHANGING Child Custody Issues discussed by Flint Divorce ATTORNEY Terry Bankert:

TO GOOD PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL

You will read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil and potential child instability confronts every parent in divorce.[trb]

...one source familiar with the situation tells … that the couple ,… ( Elign Nordegren and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]

FLint Divorce;
DID YOU KNOW:
Grounds for divorce.
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]
HOW MANY TIMES IS THIS PART VIOLATED IN GENESEE COUNTY MI.?
The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]

FLINT FAMILY COURT Child custody;

DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT ?

There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]

THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS

Best interests of the child.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.[3]


Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]

MCL 722.28; Berger v. Berger; Brausch v. Brausch;

Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]

Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;
Vodvarka v. Grasmeyer [1]

SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:
1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;
2. Defendant now works three days a week; and
3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.
Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]

HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE

Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]

WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT
In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge 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; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]

NO CHANGE OF CIRCUMSTANCES

Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]

POOR PRESENTATION ON FATHERS PART

We observe that plaintiff has abandoned this issue on appeal by failing to properly brief
it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]

DIVORCED WITH FOUR CHILDREN

The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]
MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING
The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]

DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE

He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]
STEP MOMMY GROWING DEMANDS?
Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]
DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO
Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]

OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING
The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]

THIS SHOULD BE ABOUT THE CHILDREN

Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]

DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM
His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]

It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]
Posted 5/11/2010
By Terry Bankert
http://attorneybankert.com

See:

[1], from e-journal
Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM
e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher

[CAPITALIZATIONS and trb are Terry Bankerts comments]

[2] See [1] from the case

[3]
Michigan Family Law Benchbook

[4]
http://celebs.gather.com/viewArticle.action?articleId=281474978227525

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MOM ON HEROIN! SHOULD SHE SEE HER SON?

Recently Flint Divorce Lawyer Terry Bankert was asked the following question through AVVO.

The questioner asked; “Can my ex get me in trouble for not sending my son to his supervised visits.

He said,My ex mother in-law has not obeyed the rules for the visits. She currently is not allowing my ex to go to her house due to various thefts and drama. During the past six months she has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she only has come to see him about half the time. Recently she hasn’t came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

I will restate the question to clearly identify the actors for this answer and state several assumptions.

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits of my son with my sons mother.

ASSUMPTION Because there is an ongoing protective services case and she has a case worker it is assumed that there is an active CPS case with a placement with the father and mothers parenting time is supervised at the maternal grandmothers home.

She, my ex- mother in law, currently is not allowing my ex wife to go to her , the ex-mother in law, house due to various thefts and drama.

During the past six months she, the ex wife, has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she ,the ex wife, only has come to see him about half the time.

Recently she , the ex wife, has not came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

The writer asked
“Can my ex get me in trouble for not sending my son to his supervised visits”

RESTATED Will the father be in violation of a court order if he does not send his son to the maternal grandmothers home as ordered in a child protective proceeding as ordered by the court at probably a contested pretrial. YES

ASSUMPTION The father has not denied the child to the maternal grand mother for the supervised parenting time.

The father will not be “ in trouble” if is the grand mother in breech. If the child has a loving relationship with the grand mother why stop sending the child. The grand mother will have to explain her actions at the next contested pretrial. The father should contact the case worker directly to establish that he is not withholding the child. The father should monitor the child protective proceedings.

Child protective proceedings and their orders are temporary in nature unless there is an order for termination of parental right. The domestic order that establishes parentage, child custody and parenting time is permanent. It is superseded by the Child protective order but will return when the child proactive case is closed. The father if he does not already have it should seek a change in custody of the child to him self and supervised parenting time to the mother.

Mom should be able to see her son but only in a highly supervised environment.

For further explanation please contact me directly.

Terry Bankert
http://attorneybankert.com

Articles on Family Law with free newsletter at
MICHIGAN FAMILY LAW ADVISOR
http://terrybankert.blogspot.com/

To find your Michigan Court House or Friend of the Court
http://dumpmyspouse.com

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