Michigan voters approved the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.,MMA in November 2008.
As a result, the MMMA introduced into Michigan law an exception to the Public Health Code’s prohibition on the use of controlled substances by permitting the medical use of marijuana when carried out in accordance with the MMMA’s provisions. The Court first interpreted the MMMA in Kolanek People v Kolanek, 491 Mich 382, 403; 817 NW2d 528 (2012), and emphasized that the MMMA exists only as an exception to, and not a displacement of, the Public Health Code:
It is clear the Law in Michigan ,MCL 333.26424 (c), holds that a person shall not be denied custody or visitation of a minor child for acting in accordance with the Michigan Medical Marihuana Act MMMA. That is where the clarity ends.
An analogy is a person over 18 years of age or the legal drinking age shall not be denied custody or visitation of a minor child for only the fact of having a beer in their possession. without a specific criminal or family court order to that effect.
Because of the newness of the MMMA there are few case to guide its use in Family Law Matters.
Q:Is there a measurable limit of Marijuana ingestion that is allowed when a Medical Marijuana Card holder is medicating and simultaneously caring for a child? There is nothing specially in the statute or case law. One Family Court Judge is known to have set a limit which is not controlling on any other cause.
A: no but MCL 333.26424 (c) continues to state that a limitation does exist if the MM ingestion creates reasonable danger that can be clearly articulated.
(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q:What is an unreasonable danger?
A: No case yet clearly defines this
Within narrow conditions Marijuana cultivation and use is an activity protected from State Law Enforcement but not Federal. MCL 333.26421-26430.. The State Act does not protect Marijuana plants from seizure or individual from Federal prosecution if the Federal Government chooses to Act against Michigan Medical Marijuana MMA Patients and Caregivers under The Federal Controlled Substance Act which classify all marijuana activity including manufacturing and possess illegal see USC 21 USC 812 C ,823 f, 844 (C).
Because of this Federal illegality can use allowed by the MMA Act be used against a caregiver or patient when a State Family Court rules on Best Interest Factor ,722.23 , factor (f) The moral fitness of the parties which includes illegal activity? Equally important can the use of Marihuana under MMMA be characterized a a change in circumstances that materially affect the best interest of a child allowing a parent to revisit a child custody and parenting time order?
Under MCL 333.26424 (c) which states that a limitation does exist if the MMM ingestion creates reasonable danger that can be clearly articulated.
Q: Does a patient parent have the right to Carte Blanche to take their medication before, during their court ordered parenting time?
A: Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Does a patient parent have the right to Smoke their entire stash during parenting time.
A:Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Does a patient parent have the right to be Sleeping the majority of parenting time because of MMMA ingestion and munchies aftermath?
A: Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Can a court order a parent to not take MMMA medication during parenting time.
In a case not appealed an Ingham Probate Judge Richard J. Garcia , sitting in the Family Court sentenced father Livingston Thompson to jail for using medical Marijuana in violation of a pro per order he refrain. The Judge thought the MMM card was obtained by fraud.[9-13]
A: No
Q: Can a court order a parent to be drug tested and if so in what ways can the the court use the test results? Hilldale Probate Judge Nye in one case set a therapeutic limit of 50 ng/ml. [9-14]
A: Yes
Q: Can a court remove children from the home of a parent who uses medical marijuana? In one case CPS did remove a child because of this type of use but was quickly found to be in error by a local court.
A: Yes if the parents causes through MMMA use of Marijuana creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: What is the tolerable level of MMM ingestion during parenting time before the court will react to protect the child.?
A: It is not defined by weight or other metrics but Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Can the use of MMM in compliance with the State act be look at as an illegal act under the federal statute and characterized as a crime and remove a child from the parents home on this authority? One CPS unit tried this but was quickly overruled by a court.
Q: Does a parent create an instability in reviewable under the best interest test because a landlord could evict a parent who is a caregiver with product on site or a MMMA patient.
A: yes
Q: What impact will their be in family court if a MMMA caregiver or patient owns or possess a hand gun? As of September 2011 a Declaration of the Federal Bureau of alcohol Tobacco and firearms and explosives stated that Licensed Medical Marijuana users in any state cannot own or possess a firearm [9-6] I argue this can be used negatively in Best Interest Factor (f) MCL 722.23 (f).,
A; It is an illegal act.
Q: Does a MMMA Patient or Caregiver cause an economic uncertainty because and employer does not have to accommodate the use of medical marijuana and does not have to let an employee work under the influen e MCL 333.26427 (c)(2), Casis v Wal-Mart Stores Inc. 764 FSupp 2d 914 WD Mich 2011.
A: Yes
Q: Is MMMA consumption of patients and possession of caregivers a basis for disqualification from unemployment [9-7]
A:?
Q: Of the nine parenting time factors found in MCL 722.27(6) will a MMMA patient parent be evaluated negatively in the following ; (c) The reasonable likelihood of abuse or neglect of the child during parenting time. Yes if use creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
(i) any other relevant factors.
Q: Will the parents status as being a MMMA patient or caregiver affect a courts determination of the custodial environment?
A: Yes if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
See 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.
MCL 722.27(1)(c).
The existence of an established custodial environment depends on a custodial relationship of a significant duration in which the child is provided the parental care, discipline, love, guidance, and attention appropriate to his or her age and individual needs. It is an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability, and permanence. Baker v Baker, 411 Mich 567, 309 NW2d 532 (1981).
Whether an established custodial environment exists is entirely a factual determination. Ireland; Blaskowski v Blaskowski, 115 Mich App 1, 320 NW2d 268 (1982). The court is not concerned with why the custodial environment exists, but only that it does. Treutle v Treutle, 197 Mich App 690, 495 NW2d 836 (1992); Schwiesow v Schwiesow, 159 Mich App 548, 406 NW2d 878 (1987). The trial court’s findings will be sustained unless the evidence clearly preponderates in the opposite direction. Ireland; see also Thames v Thames, 191 Mich App 299, 477 NW2d 496 (1991).
Q: How will a Parent using Marijuann under the MMMA be treated in the courts The “Best Interests of the Child” Standard
A: The court will review factor by factor. It is certain to negatively impact a parents Best Interest analysis if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987).
The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23
Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986). However, this articulation requirement does not require the court to comment on every matter in evidence or every proposition argued. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994); MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 452, 705 NW2d 144 (2005). The trial court’s failure to comment cannot be construed to mean that it did not consider the evidence. Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006).
A court’s decision regarding custody must be based on “competent evidence adduced at trial.” DeBoe v DeBoe, No 246083, 2003 Mich App LEXIS 2379 (Sept 18, 2003) (unpublished).
Burden of Proof
The burden of proof is established by the court’s initial finding on whether an established custodial environment exists.
If an established custodial environment exists, a change may be made only on clear and convincing evidence that the change is in the best interests of the child. MCL 722.27; Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986).
If a parents actions creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c) it will be a change in circumstances that materially affect the best interest of the child.[see Vodvarka]
A party challenging an established custodial environment has a heavy burden, “intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child … except in the most compelling cases.” Baker v Baker, 411 Mich 567, 576–577, 309 NW2d 532 (1981).
The Statutory Factors
No one factor indicates how custody should be awarded. The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
(l.1) Proper use of marijuanna under the MMMA is another factor.
MCL 722.23.
The court must consider each factor and make specific findings on the record.
Factor “a” Love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child. That a parent would like to have a better relationship is not relevant. See Glover v McRipley, 159 Mich App 130, 406 NW2d 246 (1987).
Q1.Who spends more hours per day with the child?
Q2.Who prepares the child’s meals?
Q3.Who has the ability to separate the child’s needs from one’s own and to empathize with the child?
Factor bThe capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed,
If any “b” is different because it both tries to project the ability of a parent to foster an emotional bond in the future and to evaluate the parent’s impact on other issues such as guidance, education, and religious training, if any. See McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998) (continued involvement in religious services); Fletcher v Fletcher (After Remand), 229 Mich App 19, 581 NW2d 11 (1998) (consideration of discipline techniques); Fletcher v Fletcher, 200 Mich App 505, 504 NW2d 684 (1993) (involvement in academic affairs, extracurricular activities, and which parent likely to answer questions on sexual maturation), aff’d in part and rev’d in part on other grounds, 447 Mich 871, 526 NW2d 889 (1994);
Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993) (father’s drinking problems, verbally abusive displays, and questionable living arrangements affected his ability to provide guidance).
In MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 705 NW2d 144 (2005), plaintiff’s negative results on an objective psychological exam, Minnesota Multiphasic Personality Inventory (MMPI), did not tip factor “a” in defendant’s favor because the examiner testified that plaintiff presented himself quite differently during interviews, defendant’s expert testified that the examiner acted within professional standards, and the record evidence revealed that the child loved and was bonded with both parents. Factor “b” slightly favored plaintiff where, although each party equally assisted the child with his schoolwork, hobbies, and religious education, plaintiff was the “rule giver” and was better able to provide guidance, and defendant often placed her need for the child’s affection above his need for discipline.
Q1.Who bathes and dresses the child?
Q2.Who stays home from work when the child is sick?
Q3.Who takes responsibility for involvement in academic affairs?
Q4.Who takes responsibility for involvement in extracurricular activities?
Q5.Who has preference because of the other’s verbal abuse, substance abuse, or arrest record?
Q6.Who has preference because of the ability to provide the child access to an extended family?
3. Factor “c”: Providing for the Child’s Needs
Factor “c” can include the disposition to provide for the child’s material needs as shown by a parent’s having little inclination to pursue a job with more than a minimal income, McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998), or by a parent’s failure to inform the other parent that medical insurance coverage is now available, Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993). It is proper to rely on the facts established at the custody hearing rather than speculating on a party’s future employment. Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998). In Barringer v Barringer, 191 Mich App 639, 479 NW2d 3 (1991), the trial court did not improperly emphasize defendant’s higher earning capacity in finding that this factor favored defendant over plaintiff, who was a homemaker.
“Factor c does not contemplate which party earns more money; it is intended to evaluate the parties’ capacity and disposition to provide for the children’s material and medical needs. Thus, this factor looks to the future, not to which party earned more money at the time of trial, or which party historically has been the family’s main source of income.” Berger v Berger, 277 Mich App 700, 712, 747 NW2d 336 (2008).
In MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 705 NW2d 144 (2005), the evidence showed that both parties were willing and able to provide for the child. However, the trial court weighed factor “c” in favor of plaintiff based on defendant’s evasive testimony regarding her reasons for discontinuing the child’s therapy sessions.
Q1.Who makes purchases for the child?
Q2.Who attends to special needs of the child?
Q3.Who has greater earning capacity?
Q4.Who adjusts working hours based on the needs of the child?
Q5.Who has certainty of future income?
Q6.Who has the ability to provide insurance for the child?
Q7.Who schedules and takes the child to medical appointments?
Factor “d” is the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
Q1.Who can provide a safe environment?
Q2.Who can provide continuity?
Factor “e” is the permanence, as a family unit, of the existing or proposed custodial home. These factors focus on stability and permanence, not the acceptability of the home or child care arrangements. See Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996) (father’s proposal to have his mother provide child care in grandparents’ home, where father was living, was not more acceptable than child attending university-provided day care while mother was in college); Mogle v Scriver, 241 Mich App 192, 614 NW2d 696 (2000) (mother’s marriage was additional factor that weighed in favor of granting custody to mother where (1) it was in child’s best interests to live with traditional nuclear family and (2) father’s single status made finding of long-term stability problematic; consideration of mother’s marriage did not amount to finding that two-parent home was preferable to single-parent home simply because it was more “acceptable”).
In Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006), the court of appeals rejected the mother’s argument that, in considering factors d and e, the trial court found in favor of the father’s city, rather than the father. “The trial court stated that it was desirable to maintain continuity by having the child be with [the father] and his extended family in Jackson. The court did not find in favor of a city.” Id. at 180.
Q1.In whose custody will the family unit not be split? The issue is not an “acceptability of the custodial home” standard. See Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996); Fletcher v Fletcher, 200 Mich App 505, 517, 504 NW2d 684 (1993), rev’d on other grounds, 447 Mich 871, 526 NW2d 889 (1994).
Factor “f”: Moral Fitness
The concept of fault can be factored into a custody decision even given Michigan’s no-fault divorce statute. Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973).
Factor “f” evaluates the parties’ relative moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994) (error in finding that this factor favored plaintiff; there was no evidence that defendant’s extramarital affairs had any adverse effect on her ability to raise children); Wardell v Hincka, No 308243, 2012 Mich App LEXIS 1224 (June 21, 2012).
Although an extramarital affair is not necessarily a reliable indicator of the party’s parenting ability, in Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008), the court found that the unique nature of defendant’s affair, i.e., seducing the children’s nanny, plaintiff’s cousin, in the marital home, demonstrated extraordinarily poor judgment and lack of insight about the effect his conduct could have on everyone in the household, including, ultimately, the children.
Unmarried cohabitation by itself does not show a lack of moral fitness for the purposes of the Child Custody Act. Hilliard v Schmidt, 231 Mich App 316, 323–324, 586 NW2d 263 (1998); Truitt v Truitt, 172 Mich App 38, 431 NW2d 454 (1988); Williamson v Williamson, 122 Mich App 667, 673–674, 333 NW2d 6 (1982). However, in Helms v Helms, 185 Mich App 680, 684, 462 NW2d 812 (1990), it was not error for the court to consider the fact that plaintiff was pregnant, unmarried, and living with her boyfriend as one factor in its decision to award custody to the father.
In Berger, defendant argued that plaintiff’s decision to seek a divorce, with its inevitable disruptive effect on the children, was “questionable conduct” relevant to factor “f” as bearing on a party’s parental ability. However, because defendant offered no legal support for his argument, the court of appeals deemed it abandoned.
Q1Who has priority as a result of the other party having an extramarital affair known by the children? Caution: See Fletcher discussion in endnote 10
Q2.Has either party engaged in any of the following conduct:
a.verbal abuse
b.drinking problem
c.poor driving record
d.Physical or sewxual abuse of a child
e.other illegal or offensive behavior
Factor “g”: The Mental and Physical Health of the Parties
Q1.Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being?
Q2.Age of contestant compared to age of the child—would energies of the child overwhelm the contestant
Given the strong state and federal policies of pursuing the total integration of disabled persons into the mainstream of society, trial courts must avoid impairing or defeating this public policy in formulating custody awards. Bednarski v Bednarski, 141 Mich App 15, 27–28, 366 NW2d 69 (1985).
Factor “g” favored plaintiff in MacIntyre, where the record was replete with evidence of defendant’s uncontrollable and inappropriate displays of anger in the child’s presence.
In Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006), the mother contended that the trial court did not address the father’s acknowledgment of the danger of drinking while he was taking anti-depressants. The trial court found that the factor weighed equally. The trial court did mention the father’s depression and that it did not appear to interfere with his ability to parent effectively, and there was no evidence that the father drank regularly or that his depression was not under control. Therefore, the trial court’s finding was not against the great weight of the evidence.
Q1. Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child's health and well being?
Q2. Age of parent compared to the age of the child-would energies of the child overwhelm the parent.
Factor “h”: The Home, School, and Community Record of the Child
In cases where the courts have found the children too young to express a preference, the court may also determine that the children are too young to have established a home, community, and school record. Therefore, in very young children, this may turn out not to be a relevant factor.
Factor “h” favored plaintiff in MacIntyre, where the child’s grades and behavior at school declined following an incident in which defendant rearranged the child’s room and damaged his belongings after he and plaintiff had worked together to clean the room.
Q1.Who can provide leadership to attend school?
Q2.Who can provide leadership in extracurricular activity participation.
Q3. Whi is actively involved in school conferences, transportation,and attendance at school events.
Q4. Who can more adequately reduce the necessity for other agency involvement, and if another agency is involved who can participate more fully.
Q5. Who can more adequately assure the childs access to friends and peers useful for the childs development.
Q6. WHo can mofre adequatley plan and supervise the chi;ld’s undertaking of home responsibilities that are appropriate to the childs age and circumstances.
Q7. WHo takes responsibility for completion of school assignements.
Factor “i”: The Reasonable Preference of the Child
Q1. Who does the child favor.
The court must take the preference of the child into account if it decides that the child is old enough to express a preference. MCL 722.23(i); Flaherty v Smith, 87 Mich App 561, 274 NW2d 72 (1978).
In Pierron v Pierron, 486 Mich 81, 92, 782 NW2d 480 (2010), the supreme court accepted the court of appeals reasoning that “factor i does not ‘require that a child’s preference be accompanied by detailed thought or critical analysis’ and that the ‘reasonable preference’ standard merely ‘exclude[s] those preferences that are arbitrary or inherently indefensible’ ” (citing Pierron v Pierron, 282 Mich App 222, 259, 765 NW2d 345 (2009)). The supreme court concluded that the trial court would have to find that the children’s stated preference violated this minimal standard of reasonableness before it could refuse to consider the children’s preference.
Q: Does either parent want the child interviewed?-Declining to interview. A trial judge’s unexplained refusal to interview the children is itself reversible error. Bowers v Bowers, 190 Mich App 51, 475 NW2d 394 (1991) (at nine and six years of age, children were old enough to have their preferences given some weight), appeal after remand, 198 Mich App 320, 497 NW2d 602 (1993); see also Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). However, the trial court in Treutle v Treutle, 197 Mich App 690, 495 NW2d 836 (1992), did not err in failing to question a six-year-old child where the court analyzed the best interests factors as if the child had expressed a preference contrary to the eventual custody ruling. In Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989), the trial court did not err in its failure to interview the children; it was sufficient that the court was aware of their preference and took it into account in reaching its decision.
On the record. Generally, the trial court must state on the record whether a child was able to express a preference and whether the court considered the preference. Wilson v Gauck, 167 Mich App 90, 421 NW2d 582 (1988). However, it is not error to fail to state on the record that the child was of sufficient age to state a preference and that his or her preference was reasonable and unbiased. Vander Molen v Vander Molen, 164 Mich App 448, 418 NW2d 108 (1987).
The trial judge does not err if he or she fails to ascertain on the record the child’s ability to testify truthfully. That issue may affect the weight the court gives this factor, but it is not a prerequisite to the child’s being able to state a preference. Burghdoff v Burghdoff, 66 Mich App 608, 239 NW2d 679 (1976).
In camera interviews. A trial court does not deny a party due process rights by questioning the child in camera to determine the child’s preference without the presence of the parties or counsel. Lesauskis v Lesauskis, 111 Mich App 811, 314 NW2d 767 (1981). An in camera interview properly protects the child from the trauma of choosing between his or her parents in open court. Impullitti v Impullitti, 163 Mich App 507, 415 NW2d 261 (1987). Courts should not cover matters other than the child’s preference in their in camera interviews.
In Molloy v Molloy, 247 Mich App 348, 637 NW2d 803 (2001), a special panel resolved the conflict between the prior Molloy opinion, 243 Mich App 595, 628 NW2d 587 (2000), and Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), by deciding that the purpose and questioning of an in camera interview is limited to determining the child’s preference. The panel also mandated that all in camera interviews with children in custody cases be recorded and sealed for appellate review. In Molloy v Molloy, 466 Mich 852, 643 NW2d 574 (2002), the supreme court affirmed the special panel’s decision, with the exception of the requirement that all future in camera interviews with children in custody cases be recorded. The court opened an administrative file to examine the extent to which, and the procedures by which, in camera testimony may be taken in custody cases.
Pursuant to an amendment to MCR 3.210(C)(5), such in camera interviews are limited to a child’s custodial preference. There is no requirement that the interviews be recorded.
Factor “j”: Encouraging Parent-Child Relationships
In McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998), the trial court’s belief that defendant would attempt to destroy the relationship between plaintiff and her children did not outweigh the other best interests findings that tended to favor him.
The fact that the mother in Barringer v Barringer, 191 Mich App 639, 479 NW2d 3 (1991), had interfered with the father’s parenting time weighed against her in the trial court’s custody determination. However, in Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), this factor was not weighed against the father where the record showed that he had not actively discouraged parenting time, but rather, on the advice of a psychologist, allowed the child to decide for himself whether to visit because the visits were usually tumultuous.
Factor “j” favored plaintiff in MacIntyre, where there was ample evidence to support the finding that defendant was unwilling to facilitate and encourage a close relationship between plaintiff and the child. She denigrated plaintiff in front of the child and interfered with plaintiff’s parenting time. Conversely, the child reported that plaintiff did not verbally attack defendant, and plaintiff allowed the child to stay with defendant when he had to go out of town during his scheduled parenting time.
Q1. WHo can best cooperate with an an appropriate parenting time schedule by the other party.
Q2.Who is least likely to disparage the other parent in the presence of the child based upon past performance.
Factor “k”: Domestic Violence
Factor “k” favored plaintiff in MacIntyre. Both parties admitted spanking the child. However, the child witnessed defendant physically attack plaintiff and defendant did not deny these allegations of domestic violence.
Although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to cross-examination, concerns over the child’s welfare are outweighed when balanced against the parent’s due process rights. In Surman v Surman, 277 Mich App 287, 745 NW2d 802 (2007), the trial court properly allowed the parties’ child to testify in open court regarding alleged physical abuse by his father.
Further discussion of this factor also appears in Mary M. Lovik, Domestic Violence Benchbook: A Guide to Civil and Criminal Proceedings §12.2 (3d ed MJI 2004).
Q1.Have there been incidents of violence in the home by any party against any party.
a.Has there been a police report
b.Has there been an arrest.
c.Has there been a CPS report
Q2.Has there been a pattern of violence whether reported or not reported.
Factor “l”: Any Other Relevant Factor
Q1. Is race an issue-Race. The U.S. Supreme Court has held that the Equal Protection clause of the Constitution prohibits a trial court from considering the race of a parent’s spouse as a factor in determining whether to change custody. Palmore v Sidoti, 466 US 429 (1984); see also Edel v Edel, 97 Mich App 266, 293 NW2d 792 (1980) (mother’s interracial association not relevant to child custody determination).
Q2. Are there other siblings-Keeping siblings together. In most cases, it is in the best interests of each child to keep brothers and sisters together. However, this does not outweigh the best interests of an individual child. Wiechmann v Wiechmann, 212 Mich App 436, 538 NW2d 57 (1995).
Q3. any special reason keep the child in the custody of same sex parent.-Biological preference. It is an abuse of discretion to base custody solely on an unsubstantiated biological preference in favor of the parent who is the same gender as the child. Freeman v Freeman, 163 Mich App 493, 414 NW2d 914 (1987).
Q3. Is child care an issue-Child care arrangements. While child care arrangements are properly considered under the best interests standard, the supreme court in Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996), declined to establish any broad rules regarding whether in-home child care or day care is more acceptable.
Q4. What Emotional pressure is being placed on the child. In Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), the court properly considered the emotional pressure endured by the child by being caught between the two parties and noted that plaintiff did not take responsibility. There was evidence that plaintiff’s anger toward her ex-husband interfered with her ability to consider the needs of her children and that she tended to blame others, including her children, for her problems.
Q5. Who can most likely address the special needs of the child.
Q6. Has either parent threatened to kidnap the child.
Q7.Does either parent spend excessive time traveling with the child.
Q8.Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return a child.
Q9.Who has responsibility for the actual and proposed child care arrangements.
Q10. Are there other children, whether a part of this litigation or not whose custody is relevant to the child's best interest?
Q11. Are there significant others or new spouses whose relationships with the children affects the child's best interest.
l.1 [[TRB].Impact of parents use of MMMA rights as parent or caregiver.
Q1. Does either parent carry marijuana when dropping off or picking children up from school, or chaperoning on a school trip?[
Q2.Does either parent smoke marijuana than drive a car, boat or other vehicle.
Q3.Does either parent smoke marijuana in a public place.
Q4.When self medicating under the authority of MMMA does either parent exercise negligent behavior toward a child.
Q5.Does either parent smoke Marijuana in from of a child.
Q6.Does either parent under become non compliant with MMMA by not keeping the marijuana in a safe, child proof location, a locked enclosed facility.
Q7.Does either parent sell marijuana to any other person, give it to any person who does not have a valid registration card.
Q8 Does either parent who under MMMA is a caregiver or patient possess a gun, registered or not.
Q9.Is eith parent who is a MMMA caregiver or patient on probation, parole.
Q10. If a MMMA patient or caregiver does either parent work in a dispensary.
Q11. Was either parent a marijuana user before obtaining a card to be a caregiver or patient un the MMMA.
[source]
[1]
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 12/14/2012).
[9]
Up in Smoke The interplay of the CHild Custody and the Michigan Medical Marijuana Act and Statute By Natalie Alane and Mary CHartier, presented at the 10th Annual Michighan Family Law Institute 2011
Sphere: Related Content
As a result, the MMMA introduced into Michigan law an exception to the Public Health Code’s prohibition on the use of controlled substances by permitting the medical use of marijuana when carried out in accordance with the MMMA’s provisions. The Court first interpreted the MMMA in Kolanek People v Kolanek, 491 Mich 382, 403; 817 NW2d 528 (2012), and emphasized that the MMMA exists only as an exception to, and not a displacement of, the Public Health Code:
The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law. Rather, the MMMA’s protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals’ marijuanause “is carried out in accordance with the provisions of [the MMMA].”
It is clear the Law in Michigan ,MCL 333.26424 (c), holds that a person shall not be denied custody or visitation of a minor child for acting in accordance with the Michigan Medical Marihuana Act MMMA. That is where the clarity ends.
An analogy is a person over 18 years of age or the legal drinking age shall not be denied custody or visitation of a minor child for only the fact of having a beer in their possession. without a specific criminal or family court order to that effect.
Because of the newness of the MMMA there are few case to guide its use in Family Law Matters.
Q:Is there a measurable limit of Marijuana ingestion that is allowed when a Medical Marijuana Card holder is medicating and simultaneously caring for a child? There is nothing specially in the statute or case law. One Family Court Judge is known to have set a limit which is not controlling on any other cause.
A: no but MCL 333.26424 (c) continues to state that a limitation does exist if the MM ingestion creates reasonable danger that can be clearly articulated.
(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q:What is an unreasonable danger?
A: No case yet clearly defines this
Within narrow conditions Marijuana cultivation and use is an activity protected from State Law Enforcement but not Federal. MCL 333.26421-26430.. The State Act does not protect Marijuana plants from seizure or individual from Federal prosecution if the Federal Government chooses to Act against Michigan Medical Marijuana MMA Patients and Caregivers under The Federal Controlled Substance Act which classify all marijuana activity including manufacturing and possess illegal see USC 21 USC 812 C ,823 f, 844 (C).
Because of this Federal illegality can use allowed by the MMA Act be used against a caregiver or patient when a State Family Court rules on Best Interest Factor ,722.23 , factor (f) The moral fitness of the parties which includes illegal activity? Equally important can the use of Marihuana under MMMA be characterized a a change in circumstances that materially affect the best interest of a child allowing a parent to revisit a child custody and parenting time order?
Under MCL 333.26424 (c) which states that a limitation does exist if the MMM ingestion creates reasonable danger that can be clearly articulated.
Q: Does a patient parent have the right to Carte Blanche to take their medication before, during their court ordered parenting time?
A: Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Does a patient parent have the right to Smoke their entire stash during parenting time.
A:Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Does a patient parent have the right to be Sleeping the majority of parenting time because of MMMA ingestion and munchies aftermath?
A: Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Can a court order a parent to not take MMMA medication during parenting time.
In a case not appealed an Ingham Probate Judge Richard J. Garcia , sitting in the Family Court sentenced father Livingston Thompson to jail for using medical Marijuana in violation of a pro per order he refrain. The Judge thought the MMM card was obtained by fraud.[9-13]
A: No
Q: Can a court order a parent to be drug tested and if so in what ways can the the court use the test results? Hilldale Probate Judge Nye in one case set a therapeutic limit of 50 ng/ml. [9-14]
A: Yes
Q: Can a court remove children from the home of a parent who uses medical marijuana? In one case CPS did remove a child because of this type of use but was quickly found to be in error by a local court.
A: Yes if the parents causes through MMMA use of Marijuana creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: What is the tolerable level of MMM ingestion during parenting time before the court will react to protect the child.?
A: It is not defined by weight or other metrics but Not if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Q: Can the use of MMM in compliance with the State act be look at as an illegal act under the federal statute and characterized as a crime and remove a child from the parents home on this authority? One CPS unit tried this but was quickly overruled by a court.
Q: Does a parent create an instability in reviewable under the best interest test because a landlord could evict a parent who is a caregiver with product on site or a MMMA patient.
A: yes
Q: What impact will their be in family court if a MMMA caregiver or patient owns or possess a hand gun? As of September 2011 a Declaration of the Federal Bureau of alcohol Tobacco and firearms and explosives stated that Licensed Medical Marijuana users in any state cannot own or possess a firearm [9-6] I argue this can be used negatively in Best Interest Factor (f) MCL 722.23 (f).,
A; It is an illegal act.
Q: Does a MMMA Patient or Caregiver cause an economic uncertainty because and employer does not have to accommodate the use of medical marijuana and does not have to let an employee work under the influen e MCL 333.26427 (c)(2), Casis v Wal-Mart Stores Inc. 764 FSupp 2d 914 WD Mich 2011.
A: Yes
Q: Is MMMA consumption of patients and possession of caregivers a basis for disqualification from unemployment [9-7]
A:?
Q: Of the nine parenting time factors found in MCL 722.27(6) will a MMMA patient parent be evaluated negatively in the following ; (c) The reasonable likelihood of abuse or neglect of the child during parenting time. Yes if use creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
(i) any other relevant factors.
Q: Will the parents status as being a MMMA patient or caregiver affect a courts determination of the custodial environment?
A: Yes if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
See 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.
MCL 722.27(1)(c).
The existence of an established custodial environment depends on a custodial relationship of a significant duration in which the child is provided the parental care, discipline, love, guidance, and attention appropriate to his or her age and individual needs. It is an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability, and permanence. Baker v Baker, 411 Mich 567, 309 NW2d 532 (1981).
Whether an established custodial environment exists is entirely a factual determination. Ireland; Blaskowski v Blaskowski, 115 Mich App 1, 320 NW2d 268 (1982). The court is not concerned with why the custodial environment exists, but only that it does. Treutle v Treutle, 197 Mich App 690, 495 NW2d 836 (1992); Schwiesow v Schwiesow, 159 Mich App 548, 406 NW2d 878 (1987). The trial court’s findings will be sustained unless the evidence clearly preponderates in the opposite direction. Ireland; see also Thames v Thames, 191 Mich App 299, 477 NW2d 496 (1991).
Q: How will a Parent using Marijuann under the MMMA be treated in the courts The “Best Interests of the Child” Standard
A: The court will review factor by factor. It is certain to negatively impact a parents Best Interest analysis if it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c)
Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987).
The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23
Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986). However, this articulation requirement does not require the court to comment on every matter in evidence or every proposition argued. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994); MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 452, 705 NW2d 144 (2005). The trial court’s failure to comment cannot be construed to mean that it did not consider the evidence. Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006).
A court’s decision regarding custody must be based on “competent evidence adduced at trial.” DeBoe v DeBoe, No 246083, 2003 Mich App LEXIS 2379 (Sept 18, 2003) (unpublished).
Burden of Proof
The burden of proof is established by the court’s initial finding on whether an established custodial environment exists.
If an established custodial environment exists, a change may be made only on clear and convincing evidence that the change is in the best interests of the child. MCL 722.27; Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986).
If a parents actions creates an unreasonable danger to the minor that can be clearly articulated and substantiated.MCL 333.26424(c) it will be a change in circumstances that materially affect the best interest of the child.[see Vodvarka]
A party challenging an established custodial environment has a heavy burden, “intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child … except in the most compelling cases.” Baker v Baker, 411 Mich 567, 576–577, 309 NW2d 532 (1981).
The Statutory Factors
No one factor indicates how custody should be awarded. The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
(l.1) Proper use of marijuanna under the MMMA is another factor.
MCL 722.23.
The court must consider each factor and make specific findings on the record.
Factor “a” Love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child. That a parent would like to have a better relationship is not relevant. See Glover v McRipley, 159 Mich App 130, 406 NW2d 246 (1987).
Q1.Who spends more hours per day with the child?
Q2.Who prepares the child’s meals?
Q3.Who has the ability to separate the child’s needs from one’s own and to empathize with the child?
Factor bThe capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed,
If any “b” is different because it both tries to project the ability of a parent to foster an emotional bond in the future and to evaluate the parent’s impact on other issues such as guidance, education, and religious training, if any. See McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998) (continued involvement in religious services); Fletcher v Fletcher (After Remand), 229 Mich App 19, 581 NW2d 11 (1998) (consideration of discipline techniques); Fletcher v Fletcher, 200 Mich App 505, 504 NW2d 684 (1993) (involvement in academic affairs, extracurricular activities, and which parent likely to answer questions on sexual maturation), aff’d in part and rev’d in part on other grounds, 447 Mich 871, 526 NW2d 889 (1994);
Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993) (father’s drinking problems, verbally abusive displays, and questionable living arrangements affected his ability to provide guidance).
In MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 705 NW2d 144 (2005), plaintiff’s negative results on an objective psychological exam, Minnesota Multiphasic Personality Inventory (MMPI), did not tip factor “a” in defendant’s favor because the examiner testified that plaintiff presented himself quite differently during interviews, defendant’s expert testified that the examiner acted within professional standards, and the record evidence revealed that the child loved and was bonded with both parents. Factor “b” slightly favored plaintiff where, although each party equally assisted the child with his schoolwork, hobbies, and religious education, plaintiff was the “rule giver” and was better able to provide guidance, and defendant often placed her need for the child’s affection above his need for discipline.
Q1.Who bathes and dresses the child?
Q2.Who stays home from work when the child is sick?
Q3.Who takes responsibility for involvement in academic affairs?
Q4.Who takes responsibility for involvement in extracurricular activities?
Q5.Who has preference because of the other’s verbal abuse, substance abuse, or arrest record?
Q6.Who has preference because of the ability to provide the child access to an extended family?
3. Factor “c”: Providing for the Child’s Needs
Factor “c” can include the disposition to provide for the child’s material needs as shown by a parent’s having little inclination to pursue a job with more than a minimal income, McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998), or by a parent’s failure to inform the other parent that medical insurance coverage is now available, Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993). It is proper to rely on the facts established at the custody hearing rather than speculating on a party’s future employment. Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998). In Barringer v Barringer, 191 Mich App 639, 479 NW2d 3 (1991), the trial court did not improperly emphasize defendant’s higher earning capacity in finding that this factor favored defendant over plaintiff, who was a homemaker.
“Factor c does not contemplate which party earns more money; it is intended to evaluate the parties’ capacity and disposition to provide for the children’s material and medical needs. Thus, this factor looks to the future, not to which party earned more money at the time of trial, or which party historically has been the family’s main source of income.” Berger v Berger, 277 Mich App 700, 712, 747 NW2d 336 (2008).
In MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 705 NW2d 144 (2005), the evidence showed that both parties were willing and able to provide for the child. However, the trial court weighed factor “c” in favor of plaintiff based on defendant’s evasive testimony regarding her reasons for discontinuing the child’s therapy sessions.
Q1.Who makes purchases for the child?
Q2.Who attends to special needs of the child?
Q3.Who has greater earning capacity?
Q4.Who adjusts working hours based on the needs of the child?
Q5.Who has certainty of future income?
Q6.Who has the ability to provide insurance for the child?
Q7.Who schedules and takes the child to medical appointments?
Factor “d” is the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
Q1.Who can provide a safe environment?
Q2.Who can provide continuity?
Factor “e” is the permanence, as a family unit, of the existing or proposed custodial home. These factors focus on stability and permanence, not the acceptability of the home or child care arrangements. See Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996) (father’s proposal to have his mother provide child care in grandparents’ home, where father was living, was not more acceptable than child attending university-provided day care while mother was in college); Mogle v Scriver, 241 Mich App 192, 614 NW2d 696 (2000) (mother’s marriage was additional factor that weighed in favor of granting custody to mother where (1) it was in child’s best interests to live with traditional nuclear family and (2) father’s single status made finding of long-term stability problematic; consideration of mother’s marriage did not amount to finding that two-parent home was preferable to single-parent home simply because it was more “acceptable”).
In Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006), the court of appeals rejected the mother’s argument that, in considering factors d and e, the trial court found in favor of the father’s city, rather than the father. “The trial court stated that it was desirable to maintain continuity by having the child be with [the father] and his extended family in Jackson. The court did not find in favor of a city.” Id. at 180.
Q1.In whose custody will the family unit not be split? The issue is not an “acceptability of the custodial home” standard. See Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996); Fletcher v Fletcher, 200 Mich App 505, 517, 504 NW2d 684 (1993), rev’d on other grounds, 447 Mich 871, 526 NW2d 889 (1994).
Factor “f”: Moral Fitness
The concept of fault can be factored into a custody decision even given Michigan’s no-fault divorce statute. Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973).
Factor “f” evaluates the parties’ relative moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994) (error in finding that this factor favored plaintiff; there was no evidence that defendant’s extramarital affairs had any adverse effect on her ability to raise children); Wardell v Hincka, No 308243, 2012 Mich App LEXIS 1224 (June 21, 2012).
Although an extramarital affair is not necessarily a reliable indicator of the party’s parenting ability, in Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008), the court found that the unique nature of defendant’s affair, i.e., seducing the children’s nanny, plaintiff’s cousin, in the marital home, demonstrated extraordinarily poor judgment and lack of insight about the effect his conduct could have on everyone in the household, including, ultimately, the children.
Unmarried cohabitation by itself does not show a lack of moral fitness for the purposes of the Child Custody Act. Hilliard v Schmidt, 231 Mich App 316, 323–324, 586 NW2d 263 (1998); Truitt v Truitt, 172 Mich App 38, 431 NW2d 454 (1988); Williamson v Williamson, 122 Mich App 667, 673–674, 333 NW2d 6 (1982). However, in Helms v Helms, 185 Mich App 680, 684, 462 NW2d 812 (1990), it was not error for the court to consider the fact that plaintiff was pregnant, unmarried, and living with her boyfriend as one factor in its decision to award custody to the father.
In Berger, defendant argued that plaintiff’s decision to seek a divorce, with its inevitable disruptive effect on the children, was “questionable conduct” relevant to factor “f” as bearing on a party’s parental ability. However, because defendant offered no legal support for his argument, the court of appeals deemed it abandoned.
Q1Who has priority as a result of the other party having an extramarital affair known by the children? Caution: See Fletcher discussion in endnote 10
Q2.Has either party engaged in any of the following conduct:
a.verbal abuse
b.drinking problem
c.poor driving record
d.Physical or sewxual abuse of a child
e.other illegal or offensive behavior
Factor “g”: The Mental and Physical Health of the Parties
Q1.Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being?
Q2.Age of contestant compared to age of the child—would energies of the child overwhelm the contestant
Given the strong state and federal policies of pursuing the total integration of disabled persons into the mainstream of society, trial courts must avoid impairing or defeating this public policy in formulating custody awards. Bednarski v Bednarski, 141 Mich App 15, 27–28, 366 NW2d 69 (1985).
Factor “g” favored plaintiff in MacIntyre, where the record was replete with evidence of defendant’s uncontrollable and inappropriate displays of anger in the child’s presence.
In Sinicropi v Mazurek, 273 Mich App 149, 729 NW2d 256 (2006), the mother contended that the trial court did not address the father’s acknowledgment of the danger of drinking while he was taking anti-depressants. The trial court found that the factor weighed equally. The trial court did mention the father’s depression and that it did not appear to interfere with his ability to parent effectively, and there was no evidence that the father drank regularly or that his depression was not under control. Therefore, the trial court’s finding was not against the great weight of the evidence.
Q1. Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child's health and well being?
Q2. Age of parent compared to the age of the child-would energies of the child overwhelm the parent.
Factor “h”: The Home, School, and Community Record of the Child
In cases where the courts have found the children too young to express a preference, the court may also determine that the children are too young to have established a home, community, and school record. Therefore, in very young children, this may turn out not to be a relevant factor.
Factor “h” favored plaintiff in MacIntyre, where the child’s grades and behavior at school declined following an incident in which defendant rearranged the child’s room and damaged his belongings after he and plaintiff had worked together to clean the room.
Q1.Who can provide leadership to attend school?
Q2.Who can provide leadership in extracurricular activity participation.
Q3. Whi is actively involved in school conferences, transportation,and attendance at school events.
Q4. Who can more adequately reduce the necessity for other agency involvement, and if another agency is involved who can participate more fully.
Q5. Who can more adequately assure the childs access to friends and peers useful for the childs development.
Q6. WHo can mofre adequatley plan and supervise the chi;ld’s undertaking of home responsibilities that are appropriate to the childs age and circumstances.
Q7. WHo takes responsibility for completion of school assignements.
Factor “i”: The Reasonable Preference of the Child
Q1. Who does the child favor.
The court must take the preference of the child into account if it decides that the child is old enough to express a preference. MCL 722.23(i); Flaherty v Smith, 87 Mich App 561, 274 NW2d 72 (1978).
In Pierron v Pierron, 486 Mich 81, 92, 782 NW2d 480 (2010), the supreme court accepted the court of appeals reasoning that “factor i does not ‘require that a child’s preference be accompanied by detailed thought or critical analysis’ and that the ‘reasonable preference’ standard merely ‘exclude[s] those preferences that are arbitrary or inherently indefensible’ ” (citing Pierron v Pierron, 282 Mich App 222, 259, 765 NW2d 345 (2009)). The supreme court concluded that the trial court would have to find that the children’s stated preference violated this minimal standard of reasonableness before it could refuse to consider the children’s preference.
Q: Does either parent want the child interviewed?-Declining to interview. A trial judge’s unexplained refusal to interview the children is itself reversible error. Bowers v Bowers, 190 Mich App 51, 475 NW2d 394 (1991) (at nine and six years of age, children were old enough to have their preferences given some weight), appeal after remand, 198 Mich App 320, 497 NW2d 602 (1993); see also Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). However, the trial court in Treutle v Treutle, 197 Mich App 690, 495 NW2d 836 (1992), did not err in failing to question a six-year-old child where the court analyzed the best interests factors as if the child had expressed a preference contrary to the eventual custody ruling. In Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989), the trial court did not err in its failure to interview the children; it was sufficient that the court was aware of their preference and took it into account in reaching its decision.
On the record. Generally, the trial court must state on the record whether a child was able to express a preference and whether the court considered the preference. Wilson v Gauck, 167 Mich App 90, 421 NW2d 582 (1988). However, it is not error to fail to state on the record that the child was of sufficient age to state a preference and that his or her preference was reasonable and unbiased. Vander Molen v Vander Molen, 164 Mich App 448, 418 NW2d 108 (1987).
The trial judge does not err if he or she fails to ascertain on the record the child’s ability to testify truthfully. That issue may affect the weight the court gives this factor, but it is not a prerequisite to the child’s being able to state a preference. Burghdoff v Burghdoff, 66 Mich App 608, 239 NW2d 679 (1976).
In camera interviews. A trial court does not deny a party due process rights by questioning the child in camera to determine the child’s preference without the presence of the parties or counsel. Lesauskis v Lesauskis, 111 Mich App 811, 314 NW2d 767 (1981). An in camera interview properly protects the child from the trauma of choosing between his or her parents in open court. Impullitti v Impullitti, 163 Mich App 507, 415 NW2d 261 (1987). Courts should not cover matters other than the child’s preference in their in camera interviews.
In Molloy v Molloy, 247 Mich App 348, 637 NW2d 803 (2001), a special panel resolved the conflict between the prior Molloy opinion, 243 Mich App 595, 628 NW2d 587 (2000), and Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), by deciding that the purpose and questioning of an in camera interview is limited to determining the child’s preference. The panel also mandated that all in camera interviews with children in custody cases be recorded and sealed for appellate review. In Molloy v Molloy, 466 Mich 852, 643 NW2d 574 (2002), the supreme court affirmed the special panel’s decision, with the exception of the requirement that all future in camera interviews with children in custody cases be recorded. The court opened an administrative file to examine the extent to which, and the procedures by which, in camera testimony may be taken in custody cases.
Pursuant to an amendment to MCR 3.210(C)(5), such in camera interviews are limited to a child’s custodial preference. There is no requirement that the interviews be recorded.
Factor “j”: Encouraging Parent-Child Relationships
In McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998), the trial court’s belief that defendant would attempt to destroy the relationship between plaintiff and her children did not outweigh the other best interests findings that tended to favor him.
The fact that the mother in Barringer v Barringer, 191 Mich App 639, 479 NW2d 3 (1991), had interfered with the father’s parenting time weighed against her in the trial court’s custody determination. However, in Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), this factor was not weighed against the father where the record showed that he had not actively discouraged parenting time, but rather, on the advice of a psychologist, allowed the child to decide for himself whether to visit because the visits were usually tumultuous.
Factor “j” favored plaintiff in MacIntyre, where there was ample evidence to support the finding that defendant was unwilling to facilitate and encourage a close relationship between plaintiff and the child. She denigrated plaintiff in front of the child and interfered with plaintiff’s parenting time. Conversely, the child reported that plaintiff did not verbally attack defendant, and plaintiff allowed the child to stay with defendant when he had to go out of town during his scheduled parenting time.
Q1. WHo can best cooperate with an an appropriate parenting time schedule by the other party.
Q2.Who is least likely to disparage the other parent in the presence of the child based upon past performance.
Factor “k”: Domestic Violence
Factor “k” favored plaintiff in MacIntyre. Both parties admitted spanking the child. However, the child witnessed defendant physically attack plaintiff and defendant did not deny these allegations of domestic violence.
Although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to cross-examination, concerns over the child’s welfare are outweighed when balanced against the parent’s due process rights. In Surman v Surman, 277 Mich App 287, 745 NW2d 802 (2007), the trial court properly allowed the parties’ child to testify in open court regarding alleged physical abuse by his father.
Further discussion of this factor also appears in Mary M. Lovik, Domestic Violence Benchbook: A Guide to Civil and Criminal Proceedings §12.2 (3d ed MJI 2004).
Q1.Have there been incidents of violence in the home by any party against any party.
a.Has there been a police report
b.Has there been an arrest.
c.Has there been a CPS report
Q2.Has there been a pattern of violence whether reported or not reported.
Factor “l”: Any Other Relevant Factor
Q1. Is race an issue-Race. The U.S. Supreme Court has held that the Equal Protection clause of the Constitution prohibits a trial court from considering the race of a parent’s spouse as a factor in determining whether to change custody. Palmore v Sidoti, 466 US 429 (1984); see also Edel v Edel, 97 Mich App 266, 293 NW2d 792 (1980) (mother’s interracial association not relevant to child custody determination).
Q2. Are there other siblings-Keeping siblings together. In most cases, it is in the best interests of each child to keep brothers and sisters together. However, this does not outweigh the best interests of an individual child. Wiechmann v Wiechmann, 212 Mich App 436, 538 NW2d 57 (1995).
Q3. any special reason keep the child in the custody of same sex parent.-Biological preference. It is an abuse of discretion to base custody solely on an unsubstantiated biological preference in favor of the parent who is the same gender as the child. Freeman v Freeman, 163 Mich App 493, 414 NW2d 914 (1987).
Q3. Is child care an issue-Child care arrangements. While child care arrangements are properly considered under the best interests standard, the supreme court in Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996), declined to establish any broad rules regarding whether in-home child care or day care is more acceptable.
Q4. What Emotional pressure is being placed on the child. In Hilliard v Schmidt, 231 Mich App 316, 586 NW2d 263 (1998), the court properly considered the emotional pressure endured by the child by being caught between the two parties and noted that plaintiff did not take responsibility. There was evidence that plaintiff’s anger toward her ex-husband interfered with her ability to consider the needs of her children and that she tended to blame others, including her children, for her problems.
Q5. Who can most likely address the special needs of the child.
Q6. Has either parent threatened to kidnap the child.
Q7.Does either parent spend excessive time traveling with the child.
Q8.Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return a child.
Q9.Who has responsibility for the actual and proposed child care arrangements.
Q10. Are there other children, whether a part of this litigation or not whose custody is relevant to the child's best interest?
Q11. Are there significant others or new spouses whose relationships with the children affects the child's best interest.
l.1 [[TRB].Impact of parents use of MMMA rights as parent or caregiver.
Q1. Does either parent carry marijuana when dropping off or picking children up from school, or chaperoning on a school trip?[
Q2.Does either parent smoke marijuana than drive a car, boat or other vehicle.
Q3.Does either parent smoke marijuana in a public place.
Q4.When self medicating under the authority of MMMA does either parent exercise negligent behavior toward a child.
Q5.Does either parent smoke Marijuana in from of a child.
Q6.Does either parent under become non compliant with MMMA by not keeping the marijuana in a safe, child proof location, a locked enclosed facility.
Q7.Does either parent sell marijuana to any other person, give it to any person who does not have a valid registration card.
Q8 Does either parent who under MMMA is a caregiver or patient possess a gun, registered or not.
Q9.Is eith parent who is a MMMA caregiver or patient on probation, parole.
Q10. If a MMMA patient or caregiver does either parent work in a dispensary.
Q11. Was either parent a marijuana user before obtaining a card to be a caregiver or patient un the MMMA.
[source]
[1]
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 12/14/2012).
[9]
Up in Smoke The interplay of the CHild Custody and the Michigan Medical Marijuana Act and Statute By Natalie Alane and Mary CHartier, presented at the 10th Annual Michighan Family Law Institute 2011
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3 comments:
Very informative Terry !
Very interesting article , and many comments I see, probably the MICHIGAN MEDICAL MARIHUANA ACT & CHILD CUSTODY. 235-1970 is very popular.
http://www.michiganfamilyattorneys.com/family-law/
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