Wednesday, December 22, 2010

LAPEER FATHER DENIED CHANGE OF CUSTODY

Lapeer Child Custody decision upheld.
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.


The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several  sub Issues:

(1)Custody;

(2)Motion to change custody;

(3)The statutory "best interest" factors (MCL 722.23);

(4)The trial court's findings on factors (g), (j), and (l);

(5)MCL 722.28;

(6) Mis cases

Baker v. Baker;

Vodvarka v. Grasmeyer;

Mogle v. Scriver;

Phillips v. Jordan;

McCain v. McCain;

(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;

(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;

(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)

UNPUBLISHED COURT OF APPEALS CASE

[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt

e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood

UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM

YOU SHOULD KNOW

Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .

MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT

Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.

THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.

The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.

LOOK FIRST TO THE HISTORY

The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.

THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.

The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.

THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.

"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."

THE LAPEER JUDGE DID A GOOD JOB

The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."

DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !

The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.

DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER

The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.

A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.

The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."

MOM WINS AND KEEPS CUSTODY

The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.

MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION

In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his

motion to change custody and ordered that the parties’ minor children remain in the primary

physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We

affirm.


FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP

On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great

weight of the evidence revealed that plaintiff had an advantage over defendant with regard to

three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.


REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE

This Court must affirm the trial court’s child custody decision “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; see also Baker v Baker, 411

Mich 567, 573; 309 NW2d 532 (1981).

DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?

We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).


WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?


The best interest factors are set forth in MCL 722.23.

WEIGHT

Plaintiff-FATHER challenges the weight of the evidence regarding:

(g) the mental and physical health of the parties;

(j) the willingness of

the parties to work together and foster the relationship between the child and the other parent;

and

(l) any other factor considered by the court to be relevant.1

LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION

Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.

CREDIBILITY IS IN THE EYE OF THE LOWER COURT

In reviewing the trial court’s findings, this Court should defer to the fact-finder’s

determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).

WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?

Under the great weight of the evidence standard, a trial court’s findings regarding each custody

factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”

Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).

YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS

Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v

McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).

LOCAL COURT DECIDES WHAT IS IMPORTANT

Ultimately, the trial court was obligated to determine the weight and credibility of the

evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127

Mich App 324, 333; 339 NW2d 635 (1983).

HISTORY OF THE PARTIES

The court’s opinion addressed the parties’ history

and the evidence presented by both parties. The court concluded that neither party exhibited

mental or physical health issues, found that both parties were unwilling to facilitate a close

relationship between the child and the other parent, and found that the minor children had been

subjected to psychological or emotional harm from both parents.


LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE

Based on the evidence, and deferring to the trial court’s determination of credibility, the

trial court’s decision on these factors was not against the great weight of the evidence. MCL

722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and

thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and

was within the range of principled outcomes. See Maldonado, 476 Mich at 388.

FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.

Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son

from a previous relationship was impermissible because the court did not have jurisdiction over

plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.

PERMISSABLE CONDITIONS OF PARENTING TIME

In its order, the court provided conditions for the parties to follow in order to prevent

further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s

son not be present while plaintiff was parenting his daughters unless they were in public or

during non-overnight family functions at the home of friends or relatives. This condition was

similar to the requirement stated in the original parenting time order dated August 29, 2006.

SUPERVISION NEEDED

Clearly the parties and the court had previously recognized the benefit of restricting the

unsupervised interaction of the children.

DAD SAYS THIS DISRUPTS MY VACATIONS

During plaintiff’s testimony, he acknowledged that he

planned to continue the restrictions to prevent further allegations, but noted that it was not an

ideal situation because it interfered with family functions and vacations.

A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD

Nevertheless, the court was authorized to add conditions to the parenting time order, as

needed. MCL 722.27a(8) provides, in pertinent part, the following:

A parenting time order may contain any reasonable terms or conditions

that facilitate the orderly and meaningful exercise of parenting time by a parent,

including 1 or more of the following:

(c) Restrictions on the presence of third persons during parenting time.

(i) Any other reasonable condition determined to be appropriate in the

particular case.

THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN

In its order, the court prefaced the conditions placed on the parties by indicating that they

were necessary in order to prevent further abuse of the children and to satisfy the best interests of

the children. Even though the court stated that the disputed condition was for the safety of

plaintiff’s son, it appears that this condition was required for both his safety and as a precaution

for the minor children. In fact, the condition was one previously exercised by plaintiff

voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise

jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with

plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with

the parties as it related to their daughters, taking into consideration the relationship between

plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed

additional conditions upon the parties. Specifically, the court required both parents to engage in

counseling and to submit progress reports to the court. In light of the continued monitoring by

the court, we cannot conclude that the trial court erred in its ruling
---END----


Presented here by Flint Child Custody lawyer Terry Bankert

http://attorneybankert.com/

References

[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt

e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood

UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM



[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.

[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010)

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