DAD WINS IN THE COURT OF APPEALS

DSCN4407,
originally uploaded by terrybankert.

FATHER WINS appeal as of right the trial court’s order adopting a recommendation by the Friend of the Court that there had been no material change in circumstances to warrant an evidentiary hearing on a request for a change in custody. The order OVERTURNED was not the result of findings on the best interest factors1 and there was no hearing on those factors.[trb]


Flint Divorce Attorney,( Lawyer ), Terry Bankert ,810-235-1970,who handles divorce , child custody and support cases discusses several Issues:
1-The defendant-father's challenge to the trial court's adoption of the FOC recommendation that there had been no material change in circumstances to warrant an evidentiary hearing on a request for change in custody;
2-McIntosh v. McIntosh;
3-The Child Custody Act (CCA); MCL 722.27(1)(c);
4-Whether the custody order at issue was a "temporary" order and could be modified on "proper cause shown or a change of circumstances";
5-Foskett v. Foskett; Vodvarka v. Grasmeyer;
6-"Temporary" custody orders are the exception to the rule that the trial court must hold an evidentiary hearing;
7-Thompson v. Thompson; Phillips v. Jordan

This presentation based on  Michigan Court of Appeals (Unpublished 12/28/2010), e-Journal Number: 47755,Judge(s): Per Curiam - Murphy, Meter, and Shapiro, No. 294733,Macomb Circuit Court Family Division, LC No. 2002-005932-DS. CAP headlines or cites [trb] by Terry Bankert with the article altered for SEO.


The MICHIGAN COURT OF APPEALS held that the MACOMB CIRCUIT COURT  must conduct an evidentiary hearing on the "best interest factors" and after evaluating all of the best interest factors, determine custody based upon the best interests of the child. Reversed and remanded. On remand, because an original finding concerning best interests was never issued, the parties are not precluded from offering evidence that originated prior to the entry of the interim order, but may use evidence occurring from any time.

AFTER A FINAL ORDER TO CHANGE CUSTODY REQUIRED A CHANGE IN CIRCUMSTANCES

The defendant-father appealed the trial court's order adopting the FOC recommendation that there had been no material change in circumstances warranting an evidentiary hearing on a request for a change in custody.

COURT CALLED AN INTERIUM ORDER FINAL

The trial court entered a consent judgment of support which stated that it was a "final judgment," and "resolved the last pending claim and close[d] this case."

INTERIUM IS INTERIUM NOT FINAL

Despite the "final judgment" language, the order did not contain an order of permanent custody. Instead, it contained only what was termed an "interim" provision as to custody, which provided that the plaintiff-mother "shall have sole legal and physical custody of said minor child(ren) until further order of the court."
The order also included parenting time for defendant.

THERE WAS NO TRIAL LIKE HEARING

The order was not the result of findings on the best interest factors and there was no hearing on those factors.

CHANGE IN CIRCUMSTANCES REQUIRED TO CHANGE A CUSTODY ORDER

“MCL 722.27(1)(c) provides for modification of a custody order on ‘proper cause shown’

or ‘[a] change of circumstances.’” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001), quoting MCL 722.27(1)(c) (alteration in Foskett).

WITH OUT PROVING CHANGE ,ORDER STANDS

“On the basis of this language . . . if the movant does not establish proper cause or change in circumstances, then the court is precluded from holding a child custody hearing.” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).

TEMPORARY ORDERS ARE THE EXEPTION

However, temporary custody orders are the exception to this rule. Thompson v Thompson, 261 Mich App 353, 357; 683 NW2d 250 (2004). “By definition, a temporary custody agreement is only a temporary order pending further proceedings.” Id. That is, a temporary custody order is not an original or initial order. Id. at 361-62. Therefore, this type of order is outside the scope of the Child Custody Act. MCL 722.27(1)(c). As such, a defendantmay not be denied a full evidentiary hearing just because he or she has stipulated to “temporary custody.” Thompson, 261 Mich App at 357.

EVEN WITH STIPULATIUONS THE COURT MUST HAVE A HEARING

Although defendant stipulated to the temporary order, this does not absolve the trial court of the requirement of determining the best interests of the children prior to entering a permanent order. See id. at 359 (holding that although a trial court will enforce temporary custody agreements, “parties cannot conclusively agree regarding child custody”).

JUDGE CANNOT BLINDLY ACCEPT STIPULATIONS

A trial court is not permitted to “blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000).

DAD SAID HE DID NOT HAVE TO SHOW A CHANGE IN CIRCUMSTANCES

Defendant contended because the custody order was a temporary custody order, he was not required to show proper cause or a change of circumstances before the trial court could consider a change in custody pursuant to the CCA, and hold an evidentiary hearing on the best interest factors.

The court noted "By definition, a temporary custody agreement is only a temporary order pending further proceedings." Thus, this type of order is outside the scope of the CCA.

A TRIAL LIKE EVIDENTIARY HEARING IS REQUIRED

As such, a defendant may not be denied a full evidentiary hearing just because he or she has stipulated to "temporary custody."

JUST BECAUSE THE PARTIES AGREE DOES NOT RELIEVE THE JUDGE OF HIS DUTY

Although defendant stipulated to the temporary order, this did not absolve the trial court of the requirement of determining the best interests of the children before entering a permanent order.

THE JUDGE MUST DETERMINE WHAT IS IS IN A CHILDS BEST INTEREST

A trial court is not permitted to "blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child."

Presented here by

Terry Bankert

http://www.attorneybankert.com/

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FLINTOIDS SAY THANK YOU GM

FLINTOIDS SAY THANK YOU GM,
originally uploaded by terrybankert.

NATIONALLY TRUCK SALES ARE UP , MORE JOBS FOR FLINT ASSEMBLY PLANT ,GETS THIRD SHIFT AND 650 LAID OFF WORKERS COME BACK, NO CAPITOL INVESTEMENT NEEDED.

NOTES.....

NATIONALLY TRUCK SALES ARE UP , MORE JOBS FOR FLINT

GM may need the extra truck-building capacity from a third shift in Flint because of increasing truck sales and limited production options.[5]

Flint is a city in the U.S. state of Michigan and is located along the Flint River, 66 miles (106 km) northwest of Detroit. As of the 2000 census, the city had a population of 124,943. The 2009 Census Bureau Estimate places the population at 111,475, making Flint the seventh largest city in Michigan.[3] It is the county seat of Genesee County[4] which lies in the Flint/Tri-Cities region of Michigan. Genesee County is also the entirety of Flint's metropolitan area, the fourth largest metropolitan area in Michigan.[7]

GM ADDING 650 JOBS

…..General Motors Co. is adding a shift and more than 650 jobs at its assembly plant in Flint. [1]

FLINT IS THE BIRTHPLACE OF GENERAL MOTORS

Flint is most known for being the birthplace of General Motors (GM), and the Flint Sit-Down Strike of 1936–37 that played a vital role in the formation of the United Auto Workers. It has also become a symbol of the decline in the auto industry. It gained national attention again when Flint area native Michael Moore[5] created the 1989 documentary film Roger & Me. The film deals with the impact that the closure of several of Flint's GM manufacturing plants in the late 1980s had on Flint and the surrounding area's population. The city is often mentioned, and featured at various lengths, in most Moore documentaries.[7]

LABOR EXPANSION TO COME FROM LAID OFF WORKERS

The additional workers will come from GM’s pool of laid-off workers, so no new employees will be hired,[6]

CHEVY HEAVY DUTY, GMAC AND SLIVERADO BUILT AT PLANT

…..GM's planned investment in the Flint plant. The plant builds the heavy-duty Chevrolet and GMC Sierra crew and regular cab trucks and the light-duty Chevrolet Silverado crew and regular cab trucks. [1]

NO NEW TAXES , EXCEPT INCOME,GM ADDING 3RD SHIFT.

There will be no added investment at the plant, because GM is adding a third shift that will use the same equipment as the first two shifts.[5]

TRUCK SALES ARE ON THE RISE

The move is yet another sign that truck sales are on the rise for the recovering automaker[2]

FLINT IS THE BIRTHPLACE OF GENERAL MOTORS

Flint is the birthplace of GM and once was a powerful auto manufacturing town, but its economy and population have steadily declined over the past few decades. It's about 50 miles northwest of Detroit. [1]


650 JOBS HELP 650 FAMILIES, JUST WHAT THE FLINT AREA NEEDS

Plant workers leaving first shift Saturday said the new jobs are exactly what the city needs.[4]

ITS GOOD

"It's good news to have any work come back to Flint," said GM Flint Assembly Electrician John Jones. [4]

TRUCKS SELLING

Even with gas prices expected to rise by the summer, expanding truck production is expected to be a wise move.[4]

HEAVY DUTY TRUCKS SELLING

"We're selling heavy duty trucks and that's what counts," Jones said. [4]

LOCAL BUSINESS HOPE FOR SPILL OVER

Local car dealer Michael Burton says his business could use the boost. [4]

WE NEED NEW MONEY CIRCULATING

"I have people asking me for $500 cars and there is no such thing as a $500 car in this economy, but that's what people are trying to find," Burton said. "If we get all this money circulating back in the system, we can get every body in to vehicles." [4]

NO MONEY FOR EXPANSION

There is currently no word on just how much is being invested in the expansion.[4]

650 JOBS MEANS LOCAL SALES WILL GO UP

But for people like Denise Palmer, who has worked at Capitol Coney right down the street from the plant for 27 years, it means securing her bread and butter.[4]

WE WANT GM ROLLING

"This is my second home," Palmer said. "When I hear good news about them, then I feel more confident in this place. Anytime GM is rolling, it always makes all businesses roll."

2,000 CURRENTLY WORK THERE

The plant, which currently has more than 2,000, will hire workers who had previously been laid off by GM.[3]

FLINT HOME OF GM EXPANSION?

Any higher demand for trucks would leave GM with few places to turn besides Flint Truck, one of two truck assembly plants in North America. The other plant, at Fort Wayne, Ind., added a third shift last year.[5]

FLINT HARD TIMES

The last decade has opened on the final stages of large-scale General Motors deindustrialization. By 2002 Flint had accrued a $35 million debt. Unable to pay this and balance its budget, the state of Michigan placed the city into receivership late that year, with a financial manager effectively replacing acting mayor, City Administrator Darnell Earley. In 2004, local control was resumed and has maintained a balanced budget since.[7]

GM HAS BEEN REINVESTING IN FLINT ALL ALONG

In 2004, General Motors made multi-million dollar upgrades to three Flint factories: Flint Truck and Bus Assembly, Flint Metal Center, and Flint Engine South. Recent developments have also assured the operation of Delphi Flint East beyond 2007. Included in the proposed 2007 UAW-GM contract, a new engine plant will be built near [7]Powertrain Flint North to begin production in 2011, replacing the current factory, which is scheduled to end production of the 3800 engine in 2008.[7]

Of the nearly 80,000 people that worked for General Motors in Flint during its peak years in the late 1970s, only about 8,000 are left after the most recent 2006 buyouts. Details on specific plant openings and closings are found in the article Flint, Michigan Auto Industry.[7]

DIVERSIFICATION PRIORITY ONE

Flint's redevelopment will rely heavily on its institution of higher learning. The building of student housing at Kettering University having an enrollment of 2,675, University of Michigan-Flint having an enrollment of 7,260, and Mott Community College having an enrollment of 10,456 all show how the city will rely on its collegiate institutions. All of these institutions are located within the City of Flint and are expected to be major parts of the city's continued rebirth. The Baker College campus in Flint Township also has an enrollment numbering in the thousands.[7]

THE CAT IS OUT OF THE BAG

GM is scheduled to publicly make the announcement on Monday.[3]

WILL THESE JOBS HOLD?

….rising gas prices could reduce — quickly and sharply — the demand for trucks, but GM needs to be prepared if sales continue to rise.

Truck sales increased about 15 percent last year, according to Edmunds.com, and the trend of businesses and individuals making the vehicle purchases they have put off through the recession could continue this year.[5]



POSTED HERE BY

Terry Bankert

http://attorneybankert.com/






[1]

http://www.wnem.com/news/26583363/detail.html


[2]

http://www.google.com/hostednews/canadianpress/article/ALeqM5h2PMxTEUQd1hQWJMLDmaMRNLV03Q?docId=193838


[3]

http://www.14wfie.com/story/13890725/gm-adding-hundreds-of-jobs-at-michigan-plant


[4]

http://abclocal.go.com/wjrt/story?section=news/local&id=7913496




[5]

http://www.mlive.com/auto/index.ssf/2011/01/time_could_be_right_for_adding.html


[6]

http://www.spokesman.com/stories/2011/jan/23/in-brief-gm-adding-jobs-at-truck-factory/


[7]

http://en.wikipedia.org/wiki/Flint,_Michigan

see also
http://pix.abc12.com/MediaItemView.aspx?id=1043533

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Comcast dumps Keith Olbermann!

Comcast dumps Keith Olbermann!",
originally uploaded by terrybankert.

WHO WILL BENEFIT…RACHEL MADDOW..FOLLOW THE MONEY!
When…[IT WAS]… suggested that she could now expand her show to two hours, she said “In my contract, I only agree to produce a certain amount of content. I’ll just do it very slowly.”....who stabbed who in the back....just follow the money!!!!!

http://goodmorningflint.blogspot.com/2011/01/comcast-dumps-keith-olbermann.html


NOTES......

DID COMCAST CLEAR THE DECKS OF THE LEFT AND SWEEP OUT COUNT DOWN?


Correlation isn’t causation, as they say in the sciences. But it’s hard to ignore the near simultaneity of Keith Olbermann’s departure from MSNBC, announced on the air tonight, and the approval of NBC Universal’s merger with Comcast by federal regulators, which happened earlier this week. Are the two connected?[1]



WHO WILL BENEFIT…RACHEL MADDOW..FOLLOW THE MONEY!

When…[IT WAS]… suggested that she could now expand her show to two hours, she said “In my contract, I only agree to produce a certain amount of content. I’ll just do it very slowly.”[2]





KEITH COULD NOT BE CONTROLED AND HE HAD TO GO!

MSNBC president Phil Griffin and others at NBC News have wished themselves rid of the difficult, imperious “Countdown” host, but a simple fact got in the way: Olbermann is by far the network’s single biggest ratings-driver. [1]

WHY WAS THEIR CASH COW SCRAPPED? WAS IT POLITICS?

Thus, Griffin has walked up to the edge — as when he suspended his star in November for making undisclosed political donations that embarrassed the network — but never quite jumped.[1]

CONSERVATIVE CORPORATION ACTS AGAINST ITS BOTTOM LINE.

But Comcast has its own calculations. An intrinsically conservative corporation, it’s not overly friendly to congenital boat-rockers like Olbermann.[1]



SOME ARGUE IT WAS JUST HIS TIME TO GO.

Thwacht wrote:

MSNBC has been going to great effort to distinguish itself from Fox recently. Both networks report with a political bias, but MSNBC tries to be open about its perspective while Fox does not. “Lean Forward” versus “Fair and Balanced.” Yet News Corp unabashedly donates millions of dollars to the Republican Party, while NBC suspends KO for making a few small personal donations to specific candidates.

Since President Bush left office and we’ve finally begun to try to end the shockandawe war for WMDs, KO has had no righteous cause to fight for, and no enemy big enough to be worthy of his ire. He’s become negative, whiny, and divisive; unfair and maybe even a little unbalanced. The way I see it, these qualities are more common to a Fox commentator, and I’m not surprised that MSNBC took yet another opportunity to distinguish its style of biased reporting from that of its competitor by letting him go.[3]





COMCAST HAS AN ANTI-FREE SPEECH HISTORY.

In fact, one such individual, a former employee named Barry Nolan, sued Comcast last year, saying the cable operator fired him in order to protect its relationship with News Corp., which owns the Fox News Channel. Nolan had publicly protested an award given to Bill O’Reilly, Fox News’s biggest star. Noting that Olbermann has also frequently feuded with O’Reilly, media critic Dan Kennedy predicted last year, “Keith Olbermann may prove to be Barry Nolan writ large.”[1]



WE WILL BE WAITING FOR THE REST OF THE STORY

My hunch: There’s a lot more to this story, and we’ll be hearing it very soon.[1]



PARTING COMMENTS

"For this relief, much thanks! Comcast dumps Keith Olbermann!" reads the headline, which is simply followed by a flashback quote from Olbermann:

"Those of you who've posted about Comcast meaning the end of my show or Rachel's can, I think, relieve yourselves of such concerns....Whatever else you think of these guys, they are not in the habit of saying "a billion in profit over the next five years? Who needs it! Cancel the shows that generate it! (Oh, and let's keep paying both of their salaries, too)."[4]



POSTED HERE BY TERRY BANKERT
http://attorneybankert.com/









[1]

http://blogs.forbes.com/jeffbercovici/2011/01/21/was-comcast-behind-keith-olbermanns-exit-from-msnbc/?boxes=Homepagelighttop


[2]

http://blogs.wsj.com/speakeasy/2011/01/22/rachel-maddow-speaks-out-on-keith-olbermann-leaving-msnbc/


[3]

http://blogs.wsj.com/speakeasy/2011/01/22/keith-olbermann-out-at-msnbc/


[4]

http://www.hollywoodreporter.com/news/conservatives-react-quietly-keith-olbermann-74569

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DAD WITH NO RIGHTS PAYS CHILD SUPPORT

DAD WITH NO RIGHTS PAYS CHILD SUPPORT,
originally uploaded by terrybankert.

Michigan Supreme Court says that father who cannot see his child because his parental rights have been terminbated still must pay child support.
FATHER WHO HAD HIS PARENTAL RIGHTS TERMINATED STILL PAYS CHILD SUPPORT.




FACTS AND PROCEDURAL HISTORY. Presented here by Flint Divorce lawyer Terry Bankert.



PARENTS WERE DRUGGIES



(The children in this family )…were made temporary wards of the court

in 2007 because of chronic drug abuse by both parents. Subsequently, respondent and his wife divorced, and both were ordered to pay child support while the children were in the care of their grandmother.

AFTER DIVORCE MOM GETS HER ACT TOGETHER AND GETS KIDS BACK.

The children were returned to their mother’s care in January 2008 after she complied with the parent-agency agreement.



DRUGGIE DAD GETS RIGHTS TERMINATED



In May 2009 the trial court terminated respondent’s parental rights, and

further ordered that respondent’s child support obligation continue pursuant to the

divorce judgment.



Flint Genesee Divorce Attorney Terry Bankert presents several Issues:

1.Whether the trial court properly ordered the respondent-father to continue paying child support after his parental rights were terminated;

2.Whether respondent's obligation to pay child support ended as a matter of law when his parental rights were terminated;

3.Statutory distinction between "parental rights" and "parental obligations"; Scope of parental rights; MCL 722.2;

4.The parental duty of support (MCL 722.3);

5. Whether respondent's continued child support obligation violated his constitutional right to due process



THIS CASE IS THE LAW OF THE LAND .

Court: Michigan Supreme Court filed 12/20/2010,Case Name: In re[ B] ,e-Journal Number: 47656,Judge(s): Young, Jr., Kelly, Cavanagh, Corrigan, Markman, and Hathaway; Not participating - Davis [1]

SUMMARY-CHILD SUPPORT STAYS EVEN WHEN PARENTAL RIGHTS TERMINATED

Since the Legislature "made a clear distinction between parental rights and the parental obligation to support a minor child, and nothing in the statutory structure indicates that the termination of parental rights automatically results in the severance of the parental support duty," the court held that the support duty continues unless it is modified or terminated by a court of competent jurisdiction.



DAD LOSES APPEAL TO SUPREME COURT



Because the trial court declined to modify or terminate the respondent-father's support obligation, and he did not show that this was an abuse of discretion, the court concluded that his obligation remained intact and affirmed the Court of Appeals judgment (although based on a different analysis than that given by the Court of Appeals). Respondent's parental rights were terminated pursuant to §§ 19b(3)(c)(i), (g), and (j).

BASIS OF DADS APPEAL

On appeal, he challenged the propriety of the trial court's order requiring him to continue paying child support after his parental rights were terminated.

BAD DAD WANTS TO BE DEAD BEAT

He argued that his obligation to pay child support ended as a matter of law when his parental rights were terminated and that any continued obligation violated his constitutional right to due process.

COURT SAYS THE LAW NOT READ RIGHT

The Court of Appeals rejected his argument. Noting that nothing in the statutory scheme defines the scope of "termination of parental rights," the court turned to the meaning of "parental rights."

JUST WHAT ARE PARENTAL RIGHTS.

"As a constitutional matter, parental rights encompass parents' fundamental liberty interest in ‘the care, custody, and control of their children.'"

DAD DID NOT ARGUE LIBERTY

Respondent did not claim that terminating his parental rights violated his liberty interests.

DAD ARGUES DUE PROCESS VIOLATION BUT DOES NOT BACK IT UP

He claimed that his right to due process was violated by the order requiring him to continue paying child support after his parental rights were terminated. However, he did not cite any authority, and the court found none, holding that a parent has either a federal or state constitutional entitlement to have his child support obligation suspended when his parental rights are terminated.

MERITLESS CONSTITUTIONAL ARGUMENT

Thus, the court found no merit in his constitutional claim.

SCOPING OUT PARENTAL RIGHTS

"MCL 722.2 defines the scope of parental rights as encompassing the ‘custody, control, services and earnings of the minor . . . .'" Pursuant to the plain statutory language, "parental rights do not include or contemplate parental obligations."

PARENTS SOLE OBLIGATION IS TO PROVIDE SUPPORT

Rather, MCL 722.3 identifies the sole parental obligation imposed by the Legislature - the duty to provide child support, which is imposed on both parents, jointly and severally.

A DUTY WITH TEETH

The duty may be enforced where neither parent has custody of the child, and even when the state has custody of the child.

RIGHTS ARE DIFFERENT THAN DUTIES

"Because the parental rights identified in MCL 722.2 are distinct and detached from the parental duty identified in MCL 722.3, it is clear that the Legislature has determined that parental rights are independent from parental duties."

SUPPORT DOES NOT DEPEND ON ACCESS TO RIGHTS

There is no indication that the support duty is conditioned on retaining parental rights. Further, the plain language of the termination statute (MCL 712A.19b) only implicates "parental rights." "Because nothing in the language of MCL 712A.19b affects the duty of support articulated in MCL 722.3, the obligation remains intact." MCL 722.3 provides that a court has the discretion to modify or terminate a parent's support obligation, but is not compelled to do so.



[1]

Court: Michigan Supreme Court filed 12/20/2010,Case Name: In re Beck ,e-Journal Number: 47656,Judge(s): Young, Jr., Kelly, Cavanagh, Corrigan, Markman, and Hathaway; Not participating - Davis

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