Tuesday, May 17, 2011

FLINT DIVORCE ATTORNEY TERRY BANKERT (810) 235-1970 PRESENTS SEVERAL DOMESTIC ISSUES

FLINT DIVORCE ATTORNEY TERRY BANKERT (810) 235-1970 PRESENTS SEVERAL DOMESTIC Issues:


1.Divorce;

2.Whether the trial court exceeded its authority when it ordered further arbitration based on facts that occurred after the decedent-ex-husband's death; Bayati v. Bayati; Kaleva-Norman-Dickson Sch. Dist. v. Kaleva-Norman-Dickson Teachers' Ass'n; Miller v. Miller; MCL 600.5081;

3.Whether the trial court properly refused to enter an amended judgment of divorce;

4.A consent judgment of divorce; MacInnes v. MacInnes; Laffin v. Laffin;

5.Whether the plaintiff-PR was time-barred from seeking enforcement of the arbitration award; Waiver;

6.Whether the defense of "laches" barred plaintiff's motion for entry of an amended judgment of divorce; Rowry v. University of MI; Nielsen v. Barnett; Lothian v. Detroit;

7.Whether the doctrine of "unclean hands" barred plaintiff's claim; Richards v. Tibaldi; Derosia v. Austin;

8.Whether general principles of equity barred plaintiff's clai

Court: Michigan Court of Appeals (Unpublished 04/19/11),Case Name: Axxxxx v. Axxxxx,e-Journal Number: 48614,Judge(s): Per Curiam – Gleicher, Sawyer, and Markey, No. 296595, Oakland Circuit Court, Family Division,LC No. 2000-639921-DO

The court held that the trial court erred by remanding the case for issuance of an updated binding arbitration report and award based on changes in circumstances following the decedent-ex-husband's death.



No party filed a motion to vacate or modify the arbitration award, and no ground existed allowing the trial court to vacate or modify the award in this case.



However, the court held that the trial court properly denied the plaintiff-PR's motion for entry of an amended judgment of divorce.



Thus, the court reversed the trial court's order remanding the case for further arbitration and remanded the case for entry of an order denying plaintiff's motion as barred by the defenses of laches and unclean hands, as well as general principles of equity.

FACTS OF CASE

The decedent and the defendant-ex-wife divorced after over 14 years of marriage. In their consent judgment of divorce, they agreed to submit the division of marital property to binding arbitration, and to incorporate the arbitration award into an amended judgment of divorce. One asset that the arbitrator was to consider was a piece of real estate (the Eagle River property). In 1/03 the arbitrator awarded the property to the parties as tenants in common and gave the decedent the right to purchase defendant's interest in it by paying her $30,000 within 120 days. The arbitration award was never incorporated into an amended divorce judgment. The decedent died just over 2 months after the award was issued and before the 120-day window to buy defendant's interest in the Eagle River property expired. Defendant apparently spent $90,000 to redeem the property after a foreclosure. The court concluded that it was significant that the parties agreed to one arbitration - whatever decision was rendered in that one arbitration would become binding. They "did not agree to further arbitration based on changes in circumstances occurring after the arbitrator rendered his decision or after the decedent died." The court held that the trial court erred by ordering further arbitration in light of events occurring after the decedent's death, expanding the scope of arbitration for which the parties contracted. As to plaintiff's claim that the trial court erred by refusing to enter an amended divorce judgment, the court held that the defendant suffered prejudice from the delay of over six years in the case (as "evidenced by the extreme change in circumstances surrounding the disputed property"). Further, the court agreed with defendant that plaintiff could not "seek enforcement of the same arbitration award that the decedent (and later the estate) breached." The arbitration award held the decedent fully responsible for all debts related to the Eagle River property, and mandated that neither party take any action to incur any further liens on the property. "Despite these provisions, the decedent (and later the estate) failed to make home equity loan payments on the Eagle River property and allowed it to go into foreclosure." This was a violation of the arbitration award.



LAW OF THE CASE



“A party cannot be required to arbitrate an issue which he

has not agreed to submit to arbitration.” Kaleva-Norman-Dickson School Dist v Kaleva-

Norman-Dickson Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975).

-

MCL 600.50811 governs the vacation or modification of arbitration awards in domestic

relation matters:

(1) If a party applies to the circuit court for vacation or modification of an

arbitrator’s award issued under this chapter, the court shall review the award as

provided in this section or section 5080.

(2) If a party applies under this section, the court shall vacate an award

under any of the following circumstances:

(a) The award was procured by corruption, fraud, or other undue means.

(b) There was evident partiality by an arbitrator appointed as a neutral,

corruption of an arbitrator, or misconduct prejudicing a party’s rights.

(c) The arbitrator exceeded his or her powers.



(d) The arbitrator refused to postpone the hearing on a showing of

sufficient cause, refused to hear evidence material to the controversy, or otherwise

conducted the hearing to prejudice substantially a party’s rights.

(3) The fact that the relief granted in an arbitration award could not be

granted by a court of law or equity is not grounds for vacating or refusing to

confirm the award.

(4) An application to vacate an award on grounds stated in subsection

(2)(a) shall be made within 21 days after the grounds are known or should have

been known.

(5) If the court vacates an award, the court may order a rehearing before a

new arbitrator chosen as provided in the agreement or, if there is no such

provision, by the court. If the award is vacated on the grounds stated in

subsection (2)(a) or (c), the court may order a rehearing before the arbitrator who

made the award.

-

Consent judgments of divorce, like all other contracts entered between two

parties acting of their own free will, are to be construed and applied as such. Id. As a panel of

this Court stated in Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008):

If no reasonable person could dispute the meaning of ordinary and plain contract

language, the Court must accept and enforce contractual language as written,

unless the contract is contrary to law or public policy. In general, consent

judgments are final and binding upon the court and the parties, and cannot be

modified absent fraud, mistake, or unconscionable advantage. [Citations

omitted.]

-

As the Michigan Supreme Court alluded to in Rowry, 441 Mich at 11, the applicable

statute of limitations at law may provide insight, by analogy, in determining the period of delay

after which laches may operate to bar a claim in a court of equity:

“The omission to do what one is by law required to do to protect his rights, and

which justifies a fair presumption that he has abandoned the same, under

circumstances which misled or prejudiced an adverse party, may in equity operate

as laches which bar[s] the assertion of such right later under changed conditions,

even though the statute of limitations has not run.” [Id., quoting Olson v

Williams, 185 Mich 294, 301; 151 NW 1043 (1915).]

-

With regard to contractual disputes, specific performance of a contract may be granted only

where the party seeking such relief has tendered full performance. Derosia v Austin, 115 Mich

App 647, 652; 321 NW2d 760 (1982).

-









-





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Thursday, May 12, 2011

A BANKRUTPCY ? - FLINT BANKRUPTCY ! $99 DOWN WITH PAYMENT PLAN. (810) 235-1970

A BANKRUTPCY ? - FLINT BANKRUPTCY ! $99 DOWN WITH PAYMENT PLAN. (810) 235-1970


Are you saying “ I need to stop the harassing phone calls, or get rid of my bills, file chapter 7 bankruptcy, I am broke and its no joke?” Call Bankruptcy Attorney Terry Bankert.

http://www.nojokebeingbroke.com/


DID YOU KNOW THAT IN BANKRUPTCY

Under 11 U.S.C. § 524(c)(1), a reaffirmation agreement is not enforceable unless it “was made before the granting of the discharge under section 727.” In one case the Debtor and Ford Motor Credit Company LLC did not make the reaffirmation agreement at issue until Ford Motor Credit Company LLC executed it on either May 2 or May 8, 2011, and therefore after Debtor was

granted a discharge on April 26, 2011, there can be no enforceable reaffirmation agreement between these parties in this case.

If you have Bankruptcy questions contact Terry Bankert at http://www.attorneybankert.com/

If you need divorce or child support information any where in Michigan look to http://www.dumpmyspouse.com/





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Friday, May 6, 2011

FLINT LAWYER COMMENTS:PARENT VOLUNTARILY ,INTEND TEMPORARILY, RETURNS CHILD TO OTHER PARENT. DOES THIS CHANGE CUSTODY? (810) 235-1970

Friday, May 6, 2011


FLINT LAWYER COMMENTS:PARENT VOLUNTARILY ,INTEND TEMPORARILY, RETURNS CHILD TO OTHER PARENT. DOES THIS CHANGE CUSTODY? (810) 235-1970



FLINT MATRIMONIAL LAWYER TERRY BANKERT (810) 235-1970 ASKS "What if a parent was to Voluntarily Relinquished Custody to get their life back in order?"



THE TEST IS IF A NEW CUSTODIAL RELATIONSHIP IS CREATED.



§3.5 Even if a custodial parent temporarily relinquishes custody, all the circumstances must be reviewed in determining if a new custodial relationship has been established. [a] Contact Flint Divorce attorney Terry Bankert at (810) 235 -1970 or through his web site http://www.attorneybankert.com/ or through http://dumpmyspouse.com/ or if you have financial problems try http://nojokebeingbroke.com/





Even if a custody order is labeled permanent, the trial court must still determine if there is an established custodial environment by looking to the actual circumstances of each case. Wealton v Wealton, 120 Mich App 406, 327 NW2d 493 (1982). [b]



A child custody order is never set in stone, though it may often seem so. The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c). The court’s power to modify custody lasts until the child reaches 18 years of age.[c]











WE WANT THE OTHER PARENT TO BE AVAILABLE FOR THE CHILD AND NOT HAVE THE CUSTODIAL PARENT FEARFUL OF AN ATTEMPT TO CHANGE CUSTODY.



Public policy encourages parents experiencing difficulties to transfer custody temporarily while they resolve their problems. [a]



GIVING THE KIDS TO GRANDPARENTS IS DIFFERENT THAT GIVING THE KIDS TO A PARENT.



However, a mother who gave temporary physical custody to the paternal grandparents during her divorce was later required to show by a preponderance of the evidence that returning custody to her was in the child’s best interests. Straub v Straub, 209 Mich App 77, 530 NW2d 125 (1995) (best interests factors were equal between parties, but fact that all parties had agreed that voluntary relinquishment was temporary tipped scales in favor of mother).



NONE CUSTODIAL PARENT HAS CHILD NINE MONTHS AND NO CHANGE OF CUSTODY



In Theroux v Doerr, 137 Mich App 147, 357 NW2d 327 (1984), no custodial environment was created when the custodial parent agreed to place the children with the father for nine months after he objected to her taking the children out of state for nine months. [a]



It is in the children’s best interests to encourage a parent to relinquish custody temporarily when he or she feels unable to provide for the children. [a]







In contrast, a mother’s established custodial environment was successfully challenged in Hall v Hall, 156 Mich App 286, 401 NW2d 353 (1986), where the mother voluntarily relinquished physical custody of the child to her parents. The father sought and was awarded temporary custody, and petitioned for permanent custody. The court found that there was no longer an established custodial environment with the mother, where the father had provided a stable environment for 17 months. [a]







In Sedlar v Sedlar, 165 Mich App 71, 419 NW2d 18 (1987), a mother who relinquished custody was unsuccessful in challenging the father’s custodial environment. It was not persuasive that the mother thought the order was temporary, especially when that was not stated in the custody order. [a]







Permanent custody was granted to the father in Moser v Moser, 130 Mich App 97, 343 NW2d 246 (1983), even though the mother claimed they had a verbal agreement that the father would return custody to her once she was financially ready. The court of appeals stated that it did not matter how the father had established the custodial environment, as long as he had. [a]



•Temporary custody of the children for approximately 15 months did not establish a custodial environment. Moser v Moser, 184 Mich App 111, 457 NW2d 70 (1990);



see also Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986) (two temporary orders over six months were not “appreciable” period of time to establish custodial environment);



Breas v Breas, 149 Mich App 103, 385 NW2d 743 (1986) (that custody lasted nine months did not give rise to established custodial environment given instability of home and that child looked to other parent for guidance and discipline);



but see De Vries v De Vries, 163 Mich App 266, 413 NW2d 764 (1987) (established custodial environment was established during temporary order that lasted ten months).[B]









SOURCE

[a]



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 04/22/2011





[b]



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 04/29/2011



[c]

Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=12


\ (last updated 04/29/2011




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Tuesday, May 3, 2011

MICHIGAN CHANGE PARENTING TIME, (810) 235-1970 FLINT DIVORCE ATTORNEY / LAWYER TERRY BANKERT


MICHIGAN CHANGE PARENTING TIME MINI BRIEF. By Terry R. Bankert P.C. FLINT DIVORCE ATTORNEY (810) 235-1970, http://www.attorneybankert.com/
 [CAPS attribute to Bankert,current to 5/3/11] For a more complete discussion of matrimonial law see http://flintdivorcelawyer.blogspot.com/







Q; Parties have joint legal and physical custody. In the last order 05/06/09 One parent has been designated summer parent and one parent has bee designated winter parent. The minor child is 9 years old and in the 3rd grade. Prior to the last order the parties shared equal parenting time. The summer parent desire to cause the parenting time order to be changed to allow him to be the winter parent. On these facts alone what is the law of Michigan and how will it be applied.



A: THIS CAUSE NEEDS AN EXPERT AND GAL AND A FOCUS ON THE BOND BETWEEN SUMMER PARENT AND CHILD. BEST ARGUMENT IS THAT IT IS THE CHILDS BEST INTEREST TO ROTATE THE PARENTS WINTER SUMMER STATUS.



WHAT SHOULD PARENTING TIME BE?





Parenting Time[c]



1. A. Parenting Time Parameters[c]



The guiding statute on parenting time is MCL 722.27a (Exhibit 4). Some of the main premises of the statute are these (citations are omitted):



“Parenting time shall be granted in accordance with the best interests of the child.”



“It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” [c]



“[P]arenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” [c]



“A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it will endanger the child’s physical, mental, or emotional health.”



“Parenting time shall be granted in specific terms if requested by either party at any time.”[c]



When advocating for the frequency, duration, and type of parenting time, use the following statutory factors when appropriate:



(a) The existence of any special circumstances or needs of the child.[c]



(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.[c]



(c) The reasonable likelihood of abuse or neglect of the child during parenting time.[c]



(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.[c]



(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.[c]



(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.[c]



(g) Whether a parent has frequently failed to exercise reasonable parenting time.[c]



(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.[c]



(i) Any other relevant factors. [MCL 722.27(6)] [c]



Michigan Parenting Time Guideline



In an effort at providing guidance and establishing some uniformity, the State Court Administrative Office has published a 43-page document entitled “Michigan Parenting Time Guideline,” available at http://courts.michigan.gov/scao/resources/publications/manuals/focb/pt_gdlns.pdf.




These are recommendations only, not requirements. [C]



Parenting Time Modification WHAT ARE THE FACTORS IN THIS CAUSE



A. General Rules



PARENTING TIME MODIFICATIONS



MICHIGAN CHILD CUSTODY ACT IS THE CONTROLING LAW.



§4.16 Modifications of parenting time are decided under the Child Custody Act. See MCL 722.27. [a]



MCL 722.27 Child custody disputes; powers of court; support order; enforcement of judgment or order.



AUTHORITY FOR ACTIONS, WE SEE THE FIRST OF MANY REFERENCES TO THE BEST INTEREST OF THE CHILD.

http://michiganbestinterestofthechild.blogspot.com/




Sec. 7.

(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:



CHILD SUPPORT MAY BE ORDERED



(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.





DID YOU KNOW THE CHILD CUSTODY ACT ALLOWS SPECIFICALLY FOR GRANDPARENT PARENTING TIME





(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a.





AUTHORITY TO MODIFY PARENTING TIME ORDERS





(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age.



IF CHANGE IN PARENTING TIME CHANGES THE CUSTODIAL ENVIRONMENT THE BURDEN OF PROOF IS CLEAR AND CONVINCING EVIDENCE

http://matrimonialdivorcelawandburdenofproof.blogspot.com/




The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.



THE COURT MUST DECIDE ON THE CUSTODIAL ENVIRONMENT

http://michigancustodialenvironment.blogspot.com/




WHAT IS THE CUSTODIAL ENVIRONMENT



The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.



OTHER CONSIDERATIONS



The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.



MILITARY PARENTS



If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination.



USE OF A GUARDIAN AD LITEM



(d) Utilize a guardian ad litem or the community resources in behavioral sciences and other professions in the investigation and study of custody disputes and consider their recommendations for the resolution of the disputes.



OTHER REASONABLE ACTION



(e) Take any other action considered to be necessary in a particular child custody dispute.



GRAND PARENTS CAN PETITION IN



(f) Upon petition consider the reasonable grandparenting time of maternal or paternal grandparents as provided in section 7b and, if denied, make a record of the denial.



CHILD SUPPORT



(2) A judgment or order entered under this act providing for the support of a child is governed by and is enforceable as provided in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650. If this act contains a specific provision regarding the contents or enforcement of a support order that conflicts with a provision in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650, this act controls in regard to that provision. MCL 722.27



PARENTS MAY MOTION THE COURT TO CHANGE PARENTING TIME



Parties may modify the parenting time provisions of their divorce judgment by agreement, or by filing a motion (see SCAO form FOC 65, Motion Regarding Parenting Time). The Friend of the Court may also move the court to modify parenting time.[b]





FOC FORMS



The Friend of the Court must make forms and instructions available for a party to request a modification of parenting time without benefit of counsel. See §7.31.[a]

http://courts.michigan.gov/scao/courtforms/domesticrelations/custody-parentingtime/foc65.pdf




If there is a postjudgment parenting time dispute in an open Friend of the Court case, after conducting an evaluation commensurate with the dispute, the Friend of the Court may file a motion for modification of the parenting time order to ensure parenting time, unless contrary to the best interests of the child. MCL 552.641(1)(c) and .517d(1).



FOC MODIFICATIONS



The motion must be accompanied by a written Friend of the Court report and recommendation. If neither party objects within 21 days after receiving notice from the Friend of the Court of the recommended modification, the Friend of the Court may submit a modified order for adoption by the court. See §7.31 for a fuller discussion of the notice requirements. If objections are filed, the motion for modification of parenting time must be noticed for hearing before a judge or referee. [a]



At the hearing, the judge or referee may admit a statement of fact in the office’s report or recommendation as evidence to prove a fact relevant to the proceeding, but only if all parties stipulate to or no party objects to the admission of the statement of fact and no other evidence is presented concerning the fact to be proved. MCL 552.517d(4). [a]



For a discussion of change of domicile, see §3.26.



B. Considerations in Modifying Parenting Time Orders



BEST INTEREST FACTORS AND CLEAR AND CONVINCING EVIDENCE IF CUSTODIAL ENVIRONMENT CHANGED



“[I]f a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child.” Brown v Loveman, 260 Mich App 576, 595, 680 NW2d 432 (2004). In Powery v Wells, 278 Mich App 526, 752 NW2d 47 (2008), evidence showed that if plaintiff mother moved less than 100 miles (from Ludington to Traverse City), either she or defendant father would be relegated to the role of “weekend” parent. The court held that any modification of parenting time based on the move would amount to a change in the established custodial environment, thus requiring a best interest analysis.[b]



ON A CHANGE IN PARENTING TIME THE COURT DOES NOT HAVE TO MAKE A FINDING ON ALL THE ELEMENTS OF THE "BEST INTEREST"

§4.17 In general, the same best interests factors and parenting time factors discussed in §§4.6–4.7 are relevant in modifying parenting time provisions. In a pure parenting time dispute, the trial court need not make specific findings on each best interests factor, but may focus solely on the contested issues. Olepa v Olepa, 151 Mich App 690, 702, 391 NW2d 446 (1986) (dispute over grandparenting time). [a]







WHAT IS THE CURRENT CUSTODIAL ENVIRONMENT? TO CHANGE IT REQUIRES CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE CHILDS BEST INTEREST TO CHANGE



Established Custodial Environment



MCL 722.27 (c); MSA 25.312 (7) provides that:



“The custodial environment of a child is established if over an appreciable time the

child naturally looks to the custodian in that environment for guidance, discipline,

the necessities of life, and parental comfort. The age of the child, the physical

environment, and the inclination of the custodian and the child as to permanency

of the relationship shall also be considered.” Pierron v Pierron, 486 Mich 81; 782 NW2d 480 (May 11, 2010) [E]



CLEAR AND CONVINCING EVIDENCE THE TEST





“[I]f a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child.” Brown v Loveman, 260 Mich App 576, 595, 680 NW2d 432 (2004). See Powery v Wells, 278 Mich App 526, 752 NW2d 47 (2008) (where evidence showed that if plaintiff mother moved less than 100 miles (from Ludington to Traverse City), either she or defendant father would be relegated to role of “weekend” parent, modification of parenting time based on move would amount to change in established custodial environment, requiring best interests analysis). [a]



CASE EXAMPLES



Modifications to parenting time orders were considered in the following circumstances:



•Where a minor child is in high school and desires to participate in more social and extracurricular activities, which the geographical distance between her parents’ homes in Michigan and Ohio make impossible, proper cause or change of circumstances sufficient to modify parenting time exists as long as these changes do not affect the established custodial environment. Shade v Wright, No 296318, 2010 Mich App LEXIS 2281 (Dec 2, 2010).



VODVARKA DOES NOT CONTROL IN PARENTING TIME CASE



The Shade court explained that the definitions of proper cause and change of circumstances in Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003) (a custody case) did not control in this case, which involved a modification of parenting time that would not result in a change in the established custodial environment. The court opined that the focus of parenting time is to foster a strong relationship between the child and the parent. Therefore, normal life changes, which do not constitute proper cause or a change of circumstance sufficient to justify a change of custody, are precisely the types of considerations a court should review in determining requests for parenting time modifications.[a]



RELIGIOUS REASONS



•In Deal v Deal, 197 Mich App 739, 496 NW2d 403 (1993), it was not an abuse of discretion to modify a parenting time order over the custodial parent’s argument that the modification would interfere with weekly religious observances. The trial court appropriately weighed the needs of the children to spend adequate time with their father, school and work schedules, and a psychologist’s testimony that the children would not be harmed by the arrangement.[a]



SPLIT TRANSPORTATION COSTS



•In Prettyman v Prettyman, 348 Mich 206, 82 NW2d 475 (1957), where the mother took the children to Texas after the divorce and denied the husband parenting time, the court approved a modification whereby the children were to visit the husband from July 15 to September 1 each year, with each party paying transportation one way.[a]



ALCOHOL



•After the mother controlled her alcoholism, the judgment in Knowles v Knowles, 340 Mich 238, 65 NW2d 772 (1954), was modified to allow the mother to have the children for six weeks instead of one month each summer and also for half the Christmas vacation each year.[a]



PARENT REMARRIED



•In Kane v Kane, 314 Mich 529, 22 NW2d 773 (1946), where the father had remarried and moved into his own home and desired more frequent contact with his child, the court increased his parenting time.[a]



CONSTRUCTIVE FATHER



•In Stevenson v Stevenson, 74 Mich App 656, 254 NW2d 337 (1977), the father was denied specific parenting time where the child had not seen his father in 11 years, considered the stepfather his real father and his half-brothers true brothers, and was stabilized in the home environment.[a]



BOY FRIEND OR GIRL FRIEND



•A noncustodial parent’s parenting time rights may not be canceled solely because he or she is living with someone to whom the parent is not married. Snyder v Snyder, 170 Mich App 801, 429 NW2d 234 (1988).[a]



IN THIS CAUSE NEITHER PARENT HAS THE SOLE CUSTODIAL ENVIRONMENT



EXAMPLE



Parties were divorced in 2006 and the Judgment of Divorce awarded Plaintiff/mother and



Defendant/father joint legal and physical custody, Plaintiff/mother was allowed to move to Ohio and Defendant/father had two weekends per month with Plaintiff/mother providing all transportation.[d]



In May, 2008, Plaintiff/mother filed to change parenting time and Defendant/father countered with a motion seeking sole physical custody. [d]





The trial court held a de novo hearing, denied the change

of custody and modified parenting time giving Defendant/father an extended weekend during the

academic year and substantially all of the summer. [d]



Trial court attempted to provide Defendant/father with the same number of overnights. Trial court did not make explicit findings on the record regarding probable cause or change of circumstance. Defendant/father did not appeal custody decision, but appealed the change in parenting time.[d]



Plaintiff/mother alleged that Defendant/father was living with a woman now who suffered

depression and was a primary care giver to the child and the child expressed a preference not to

spend significant time with her. Also, Plaintiff/mother argued the cost of fuel had increased and

Defendant/father would not contribute to transportation costs.[d]



Court of Appeals analyzed and concluded the facts alleged by Plaintiff/mother did not rise

to either proper cause or change of circumstances under Vodvarka to change custody. However, the Court of Appeals did find the allegations sufficient to modify parenting time where the change in parenting time did not change the established custodial environment: “With our holding today, we do not seek to precisely define the proper cause or change of circumstance necessary to change parenting time. Our holding is limited to our conclusion that the normal life changes that occurred with the minor child in this case are sufficient to modify parenting time”. Id., page 8. [d]



OUR FOCUS IN THIS CAUSE IS MAINTAINING THE STRONG BOND BETWEEN CHILD AND SUMMER PARENT



The Court of Appeals stated that if the established custodial environment will not be changed

by the parenting time modification requested then a more expansive definition of proper cause

or change of circumstance is appropriate. In explaining the holding the Court of Appeals

distinguished a custody proceeding which must be primarily concerned with the stability in a child’s environment to parenting time which is meant to focus on strong relationship between the child and the parent.



WHAT ARE THE RELEVANT BEST INTERST FACTORS



The Court further noted that custody decisions must focus on all twelve of the best interest factors listed in the Child Custody Act (MCL 722.23) whereas parenting time decisions are based only on the relevant best interest factors and a complete set of statutory factors unique only to issues of parenting time. (MCL 722.27a).



The Court of Appeals chose not to specifically define what the expanded definition should be for proper cause or change of circumstance in parenting time modification cases:[d]



“With our holding today, we do not seek to precisely define the

proper cause or change of circumstance necessary to change

parenting time. Our holding is limited to our conclusion that the

normal life changes that occurred with the minor child in this case are

sufficient to modify parenting time”[d]



ANOTHER EXAMPLE



Carpenter v Carpenter, unpublished opinion per curium of the Court of Appeals, issued



November 16, 2010 (Docket No. 296924) - Ottawa County - Affirmed but remanded for parenting time access. [d]



Court of Appeals affirmed the trial court’s award of joint legal custody with physical custody

to Defendant/father and affirmed the parenting time schedule but remanded the case back to the trial court to determine a specific schedule to accomplish the reasonable access ordered by telephone and electronic access. Plaintiff/mother had requested a specific schedule for telephone access but the trial court had stated that it wanted to wait and see how things progressed. MCL 722.28 requires the trial court to grant a specific schedule if requested by a party.[d]





USE OF EXPERT TESTIMONY



Court Appointed Experts on Issues of Custody and Parenting Time [d]



1. Generally, the court, either on its own motion, or on motion of either party, may appoint an expert witness under MRE 706, to provide testimony on the issue of custody or parenting time. [d]



B. Nothing Prevents Either Party from Hiring Their Own Expert Witness, Whether the Court Appoints One or Not [d]



C. Limitations on Basis of Expert Opinion



MRE 702 was recently amended. It reads as follows:[d]



If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, a witness qualified as an expert by knowledge, skills, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. [d]



MRE 703 was recently amended. The facts or data upon which an expert bases their opinion or inference shall be in evidence. The Rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual basis of the opinion be admitted into evidence thereafter. [d]



MRE 1101 was recently amended to provide that the Michigan Rules of Evidence, except those with respect to privileges, do not apply to the court’s consideration of a report or recommendation submitted by the Friend of the Court pursuant to MCL 552.505(1)(d) or (e) which indicates that the Friend of the Court Report “may include reports and evaluations by outside persons or agencies if requested by the parties or the court.”[d]



See Introducing The New MRE 702, 703 and 1101: Responding To Dramatic Changes In The Rules Regarding Expert Testimony, Carlo J. Martina, Michigan Family Law Journal, June/July 2004 for more information [d]



Source

[a]

Michigan Family Law Benchbook ch 4 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=04


(last updated 04/22/2011).







[b]

Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=12




(last updated 04/22/2011)



[c]



http://www.icle.org/modules/seminars/materials/material.aspx?book=2009cr3523&chap=20092c3523#i2009CR3523-ch3-s4




[d]



http://www.icle.org/modules/seminars/materials/material.aspx?book=2009cr3524&chap=20092c3524




[e]

http://www.icle.org/ContentFiles/Partners/SeminarMaterials/2011CA3556/20112A3556-ExA.pdf




[f]



Shade v Wright, ______ Mich App ______ (December 2, 2010). Midland County -



Affirmed.






Dailey internet new from Flint MI USA

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