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This presentation based on Michigan Court of Appeals (Unpublished 12/28/2010), e-Journal Number: 47755,Judge(s): Per Curiam - Murphy, Meter, and Shapiro, No. 294733,Macomb Circuit Court Family Division, LC No. 2002-005932-DS.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/
Posts
No comments:
Post a Comment