Friday, July 15, 2011

FLINT DIVORCE LAWYER LOOKS AT MOM LOSS OF CUSTODY BECAUSE OF DYSFUNCTIONAL CPS INTERVENTION

FLINT DIVORCE LAWYER PRESENTS TODAYS Issues 07/15/11:


1. Custody;
2.Thompson v. Thompson; "Proper cause" or "change of circumstances" sufficient to consider altering custody;
3. Rossow v. Aranda; Vodvarka v. Grasmeyer; The statutory "best interest" factors (MCL 722.23);
4.Foskett v. Foskett; The trial court's evaluation of the witnesses' testimony; McIntosh v. McIntosh

This post is by Flint Divorce Attorney Terry Bankert.Divorce lawyer Terry Bankert often is involved in child custody, child support, parenting time and grandparents rights.


Flint Matrimonial Lawyer Bankert’s articles on Family Law to include Divorce can be found at http://terrybankert.blogspot.com/ . Flint Bankruptcy Lawyer Bankert also writes about chapter 7 bankruptcy at http://dumpmycreditors.wordpress.com/
 Bankert is active in his community and presents information on a wide variety of topice through his blog at http://goodmorningflint.blogspot.com/ .You are invited to Join Bankert’s Face Book group “ Family Law and Bankruptcy Discussions” at  http://www.facebook.com/pages/Terry-R-Bankert-PC-Family-Law-and-Bankruptcy-Discussions/.

For questions about divorce , custody , change of custody and parenting time  Family Law attorney Bankert can be reached at http://www.attorneybankert.com/ or 1-810-235-1970. SOURCE,

COURT: Michigan Court of Appeals (Published July 12 2011),Case Name: Shann v. Shann,Ingham Circuit Court LC# 05-02594, e-Journal e-journal Number: 49275,Judge(s): Per Curiam – Whitbeck, Markey, and K.F. Kelly,BANKERT: In CAP or [trb] see http://www.attorneybankert.com/ NOTE :This opinion has been altered as to style , issues presented in multiple posts and order of presentation.The presenter is a lawyer blogger and some content are purly opinion of the writer.Please consult  your attorney before reliance in your procedings.


MICHIGAN COURT OF APPEALS OPINION Holding that the fact the CPS removed the minor child from the home was sufficient evidence of a change in circumstances to warrant the trial court's considering a change of custody, the court affirmed the trial court's order changing the child's custody from the defendant-mother to the plaintiff-father.

MOTHER HAD SOLE CUSTODY OF THE MINOR CHILDREN

MOTHER Defendant retained sole physical custody of the child after the parties divorced.

MOTHER REMARRIED

She later married JW, who had five daughters from prior relationships.

MOM AND NEW HUSBAND FOUGHT

Two of JW's daughters testified that defendant and JW often fought and that JW called the minor child names.

NEW HUSBAND CALLE DTHE CHILDREN NAMES

The child's babysitter testified that he told her that his stepfather regularly called him an idiot. However, another of JW's daughters and defendant contradicted this testimony.

NEW HUISBANDS DAUGHTER CLAIMED FATHER SEXUALLY ABUSED HER

JW's eldest daughter told the police that JW sexually abused her several years earlier.

MOM KEPT HER CHILD IN THE HOME

When these allegations surfaced, defendant did not remove the minor child from the home or inform plaintiff.

DAD THREATENS SUICIDE

A CPS worker (W-T) became involved with the defendant's family when defendant called 911 because JW threatened to kill himself, defendant, and "everybody else." JW was taken to the hospital after the police responded to the 911 call.

CPS INVOLVED FILES ABUSE NEGLECT

The children were removed from the home when the CPS filed an abuse and neglect case against JW.

DAUGHTER RECANTS CHARGES DISMISSED

While criminal charges were also filed, they were dismissed after the eldest daughter recanted her claims.

CPS CASE DISMISSED

The CPS case was also dismissed, against the CPS's wishes, because the prosecutor's office did not believe there was enough evidence to pursue it. The trial court found that plaintiff, his wife, W-T, two of JW's daughters, and the babysitter were credible witnesses, while defendant and JW's eldest daughter were not credible.

IN RESPONSE TO EX HUSBANDS MOTION TO CHANGE CIRCUMSTANCE ARGUED NO CHANGE IN CIRCUMSTANCE

Defendant argued on appeal that there was no proper cause or change of circumstances sufficient to consider altering custody and that the trial court incorrectly evaluated the witnesses' testimony.

CPS LOSING CLAIMS NOT ENOUGH

She contended that the CPS's prior actions did not constitute a sufficient basis for finding proper cause or a change of circumstances. Pointing out that the CPS case was dismissed, she asserted "that allowing the trial court's ruling to stand would be tantamount to declaring that any protective services action, no matter how unfounded, could be used as an excuse to revisit custody."

LOWER COURT SAYS CPS ACTIONS COULD BE JUSTIFIED

However, the court concluded that it was "not clear that CPS's actions were unjustified."

THE COURT SECOND GUESSED RECANTING WITNESS

Based on its assessment of the witnesses' credibility, the trial court found that the eldest daughter recanted her allegations "for reasons other than their truth or falsity." The trial court also found W-T was a credible witness, and W-T testified that CPS felt that the abuse or neglect case should not have been dismissed.

NEW ISSUE, POOR HYGIENE AND VERBAL ABUSE

There was also evidence, which the trial court found credible, that the minor child "had very poor hygiene habits" and was subjected directly or indirectly to verbal abuse. "Any one of these additional circumstances was most certainly not a normal life change and was likely to have a significant impact on" the child.

MICH COURT OF APPEALS THREW IN TOWEL AND FOLLOWED THE PREJUDICE OF THE LOWER COURT

The court also noted that it respected the trial court's superior position to assess the witnesses' credibility and it would not revisit those assessments.



THE MICHIGAN COURT APPEALS NOW GIVES EVEN MORE POWER TO UNTERTRAINED OVERWOPRKED CPS WORKERS..

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PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

A trial court may only consider a change of custody if the movant establishes proper

cause or a change in circumstances.5

[T]o establish “proper cause” necessary to revisit a custody order, a movant must

prove by a preponderance of the evidence the existence of an appropriate ground

for legal action to be taken by the trial court. The appropriate ground(s) should be

relevant to at least one of the twelve statutory best interest factors,[6] and must be

of such magnitude to have a significant effect on the child’s well-being.[7]

FOOTNOTES

5 Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994), citing MCL 722.27(1)(c).

6 MCL 722.23.

7 Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003).



To show a change of circumstances, the party must prove that “conditions surrounding custody

of the child, which have or could have a significant effect on the child’s well-being, have

materially changed.”8 These must be more than normal life changes, “and there must be at least

some evidence that the material changes have had or will almost certainly have an effect on the

child.”9

BEST INTERESTS OF THE CHILD

The parties agree that an established custodial environment existed with Cary Wenzel.

Given an established custodial environment, Shann could only be awarded custody of the minor

son if the facts at trial proved by clear and convincing evidence that the change of custody was inthe minor son’s best interests.11

The trial court found the parties equal with respect to best

interest factor (a),12 but found that all other factors either favored Shann or were not relevant.

Cary Wenzel does not make specific arguments that the trial court erred in its

determination of individual factors. Rather, Cary Wenzel complains that the trial court should

have believed her witnesses rather than Shann’s. As we have already observed, we respect the

trial court’s superior position to assess the credibility of the witnesses appearing before it and

will not revisit those assessments in this forum.13

FOOTNOTES

9 Id. at 513-514.

10 Rossow, 206 Mich App 458; citing MCL 722.27(1)(c).

11 Foskett v Foskett, 247 Mich App 1, 6, 9; 634 NW2d 363 (2001).

12 MCL 722.23(a).

13 McIntosh, 282 Mich App at 474.

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