SO YOU WANT CHANGE CHILD CUSTODY! WHAT DIO YOU DO?

THE CHILD CUSTODY ORDER MUST BE CHANGED ! What do I do?

A common theme clients come to me with after a divorce judgement is in place involves dissatisfaction with the  award of physical and legal custody in their divorce. Usually I was not involved in the original action.

#Flint #Divorce

I am a Family Law Flint Divorce child custody attorney. Call 235-1970 for Terry Bankert if you have additional questions.

WHAT IS THE UNDERLYING ORDER CONCERNING CHILD CUSTODY.

Some judgements done with the best of intentions just will not work. The cause varies. Court want child custody decisions to be hard to change. My analysis usually begins by asking what is the current order of custody and what is different since that order was entered?

ISSUES YOU NEED TO KNOW IN YOUR ATTEMPT TO CHANGE CUSTODY

Under MCL 722.27(1)(c), before modifying a custody order, the court must consider three issues:

1. YOU the moving party has met the initial burden of establishing either “proper cause” or a “change of circumstances;”
2. Whether there is an established custodial environment; which will establish the burden of proof or how hard your task will be and
3. Whether the modification is in the best interests of the child. [1]

WHAT HAVE YOU SAID IS THE REASON TO CHANGE CUSTODY. WHAT IS YOUR  PROPER CAUSE OR CHANGE IN CIRCUMSTANCES.

THE FIRST QUESTION THE JUDGE MUST ANSWER.

The threshold question in any change of custody is whether the moving party has established proper cause or change of circumstances. MCL 722.27(1)(c); Vodvarka v. Grasmeyer, 259 Mich App. 499, 675 NW2d 847 (2003).[1]

YOU WILL HAVE THE BURDEN OF PROOF IS YOU WANT TO CHANGE  CHILD CUSTODY.

The moving party has the burden of proof by a preponderance of the evidence to establish that either proper cause or a change of circumstances exists. Vodvarka, supra. at 509. [1]

WHAT REASONS FOR THE CHANGE IN CUSTODY WILL THE JUDGE THINK ARE PROPER CAUSE.

Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.Vodvarka, supra. at 511. [1]

THE ATTORNEY OPPOSING YOUR CHANGE WILL ASK FOR A VODVARKA HEARING .

1. In Vodvarka, the Court of Appeals held that grounds for proper cause should be relative to the twelve best interest factors contained in MCL 722.23(a)–(l). The grounds presented should be “legally sufficient,” i.e., they must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper. Vodvarka, supra. at 512. [1]

EXAMPLES OF CHANGE IN CIRCUMSTANCES

1. In order for there to be a change of circumstances, the moving party must show that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be changes in a child’s environment, behavior and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur in the life of a child, and there must be at least some evidence that material changes have had or will almost certainly have an effect on the child.Vodvarka, supra. at 513–514. [1]
2. Evidence of the circumstances existing at the time of and before the entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. The moving party cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances. Vodvarka, supra. at 514. [1]
3. A change in economic circumstances, standing alone, is insufficient to warrant revisiting a previously entered child custody order. Further, those concerns are more appropriately addressed through an increase in the child support paid to the custodial parent following a properly filed motion to modify child support. A decline in child’s grades was insufficient to constitute a change in circumstances sufficient to warrant modification of parties’ joint custody arrangement to change sole physical custody from mother to father; child was not in danger of failing any subject, and the decline in child’s grades could have been attributable to child’s change in schools or the different educational materials. Corporan v. Henton, 282 Mich. App. 599, 766 N.W.2d 903 (2009). [1]
4. The 2006 judgment of divorce (JOD) contained clause that purported to allow the parties child to be moved out of Michigan without court approval and that the provisions of MCL 722.31 do not apply as the plaintiff mother had sole legal custody. Shortly after the entry of the JOD, the mother moved to Toronto, Canada. The father was still afforded parenting time, although less frequently than before. Father filed a motion to modify legal custody and to restore his parenting time. The trial court held that the clauses in the JOD allowing movement out of the state of Michigan were unenforceable and that a change in legal custody and parenting time was in the best interest of the child claiming the father met this burden by clear and convincing evidence. The Court of Appeals reversed, holding that a mere change in residence is not enough to qualify as a change in circumstance or proper cause. Absent an alteration in an established custodial environment, changing residence is not enough. Brausch v. Brausch, 283 Mich.App. 339; 770 NW2d 77 (2009).[1]
5. In Gerstenschlager v. Gerstenschlager, 292 Mich App 654; 808 NW2d 811 (2011) the trial court found there was a change of circumstances existed where defendant had taken in boarders and the child was getting older. The Court of Appeals reversed and remanded to the Trial court, finding that the fact that a child is growing up, the fact that a child has started high school, and the fact that the child faces scheduling changes relating to school and extra-curricular activities “are the type of normal life changes that occur during a child’s life and that do not warrant a change in the child’s custodial environment.” The Court also found that the evidence suggested that the boarders’ presence in the house was a matter of minimal consequence to the child. [1]

WHAT IS AN ESTABLISHED CUSTODIAL ENVIRONMENT

1. The definition of an established custodial environment is found in MCL 722.27(1)(c), which states as follows:
2. 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. [1]
3. The Court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests in a custody proceeding. Whether an established custodial environment exists is a question of fact. Mogle v. Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000).[1]
4. An established custodial environment, for the purposes of determining an appropriate child custody arrangement, is one of significant duration in which the relationship between the custodian and child is marked by qualities of security, stability and permanence; however, an established custodial environment need not be limited to one household, it can exist in more than one home.Mogle, supra. at 197. See also MCL 722.27(1)(c).[1]
5. Custody orders, by themselves, do not establish a custodial environment. The court will look to the actual circumstances. Bowers v. Bowers, 198 Mich App 320, 497 NW2d 602 (1993).[1]
6. In Shann v. Shann, 293 Mich App 302, 809 NW2d 435 (2011) the Court of Appeals held that the fact that CPS removed the child from the home is in and of itself sufficient evidence of a change in circumstances to warrant a trial court to consider a change of custody.[1]
7. The Trial Court granted Plaintiff a change of domicile from Plymouth to Windsor (less than 100 miles). The move would result in the loss of Defendant’s weeknight visits. The Court of Appeals affirmed the trial court’s ruling that the established custodial environment would not change if Defendant were awarded additional weekend visitation, which would allow him to have the same number of overnights. The Court also noted that Defendant could attend the child’s school functions. Gagnon v. Glowacki, 295 Mich App 557, 815 NW2d 141 (2012).[1]

WHAT DO YOU HAVE TO PROVE AND BY HOW MUCH.

The court will take testimony and accept evidence that will be used in a Best Interest analysis concerning your case.  The Best Interest REFERS TO A  State Statute MCL 722.23 arranged by  alphabetical letter a-l, The court will weigh and measure each element. But since the  the system does not like to change custody your burden may be high.  

WHAT IS THE STANDARD OF PROOF.

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. MCL 722.27(1)(c). If no established custodial environment exists, custody may be modified by showing that a change would be in the best interests of the child by a preponderance of the evidence. Hall v. Hall, 156 Mich App 286, 289; 401 NW2d 353 (1986).[1]

The best interests of the child is defined in MCL 722.23, which states:

As used in this act, “best interests of the child” means the sum total of the following 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.

This is just an overview. I would not suggest doing this without an attorney.

Terry Bankert Flint Child Custody Lawyer 810-235-1970.

[1]

Handling Child Custody, Child Support & Parenting Time

Modification of Custody

Hon. Linda S. Hallmark, Oakland County Probate Court

Sphere: Related Content

VICTEM OF DOMESTIC VIOLENCE STUCK WITH ANTENUPTIAL AGREEMENT

WIFE BEATER STILL GETS THE BENEFIT.

Discussed  are Issues of Divorce, Validity of the parties' antenuptial agreement and  "Change in circumstances" (COC); Presented by FLINT DIVORCE LAWYER Terry R. Bankert 235-1970 1/9/15.#flintdivorce

The Michigan Court of Appeals  Decided 12/18/14,  among other issues  that the parties' antenuptial agreement was valid and enforceable, concluding that to invalidate it on the basis of one party's fault would contravene the agreement's clear and unambiguous language, and that as a matter of law, the defendant-wife failed to show that a change of circumstances [ COC] was sufficient to void it.[1] The claimed change in circumstances was the domestic violence  inflicted on the  wife  by the husband.

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

The definition of an #antenuptial .  A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is acontract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other.[3]

The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.[3]

They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.[3]

It should not be confused with the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintaining of dynastic families.[3]

In some countries, including Belgium and the Netherlands, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy.[3]

Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.[1]     [3]

The  Defendant wife in this case is trying to set aside the prenuptial agreement she signed.

Her argument is essential she could not foresee her husband would be a wife beater when she signed the prenuptial agreement.

Defendant  here did not provide any case law supporting "her position that someone's 'fault' in a divorce can constitute an unforeseen" COC. Further, assuming that the alleged abuse "occurred and was unforeseeable," this COC was "not sufficient to void the parties' antenuptial agreement in this instance.[1]

The types of changes of circumstances that may void an otherwise valid antenuptial agreement must relate to the issues addressed in the antenuptial agreement.[1]

Since the primary focus of the antenuptial agreement addressed spousal support and the division of the parties' assets, any changes of circumstances must relate to these aspects, and here, the domestic abuse does not." The court found that Hutchison did not stand for the proposition that abuse, alone, can constitute a sufficient COC to void an otherwise valid antenuptial agreement.[1]

Defendant here  appeals as of right a judgment of divorce entered by the trial court. We  the Michigan COurt of Appeals affirm in part, reverse in part, and remand for further proceedings. [2]

The parties signed an antenuptial agreement on September 9, 1993, two days before their wedding on September 11, 1993. This case primarily deals with the validity and enforcement of that antenuptial agreement.[2]

THE FOLLOWING ARE PARTS OF THAT AGREEMENT

It said “ In the event that the marriage . . . terminate[s] as a result of divorce, then, in full satisfaction, settlement, and discharge of any and all rights or claims of alimony, support, property division, or other rights or claims of any kind, nature, or description incident to marriage and divorce (including any right to payment of legal fees incident to a divorce), under the present or future statutes and laws of common law of the state of Michigan or any other jurisdiction (all of which are hereby waived and released), the parties agree that all property acquired after the marriage between the parties shall be divided between the parties with each party receiving 50 percent of the said property”.[2]

However, notwithstanding the above, the following property acquired after the marriage will remain the sole and separate property of the party acquiring the property and/or named on the property: [2]

a. As provided in paragraph Two and Three of this antenuptial agreement, any increase in the value of any property, rents, profits, or dividends arising from property previously owned by either party shall remain the sole and separate property of that party.[2]

b. Any property acquired in either party’s individual capacity or name during the marriage, including any contributions to retirement plans (including but not limited to IRAs, 401(k) plans, SEP IRAs, IRA rollovers, and pension plans), shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.[2]

* * *

8. Each party shall, without compensation, join as grantor in any and all conveyances of property made by the other party or by his or her heirs, devises, or personal representatives, thereby relinquishing all claim to the property so conveyed, including without limitation any dower or homestead rights, and each party shall further, upon the other’s request, take any and all steps and execute, acknowledge, and deliver to the other party any and all further instruments necessary or expedient to effectuate the purpose and intent of this agreement.[2]

* * *

10. Each party acknowledges that the other party has advised him or her of the other party’s means, resources, income, and the nature and extent of the other party’s properties and holdings (including, but not limited to, the financial information set forth in exhibit A attached hereto and incorporated herein by reference) and that there is a likelihood for substantial appreciation of those assets subsequent to the marriage of the parties.[2]

Included with the agreement was plaintiff’s disclosure statement, which provided that he already had approximately $400,000 in net worth.[2]

Because the antenuptial agreement prohibited the award of any spousal support, the trial court did not award any.[2]

YOU MAY BE INTERESTED TO KNOW.

In Michigan, antenuptial agreements “may be voided (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of a material fact, (2) if it was unconscionable when executed, or (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.” Reed v Reed, 265 Mich App 131, 142-143; 693 NW2d 825 (2005). The party challenging the validity of an antenuptial agreement carries the burden of proof and persuasion. Id. at 143. [2]

“To determine if a prenuptial agreement is unenforceable because of a change in circumstances, the focus is on whether the changed circumstances were reasonably foreseeable either before or during the signing of the prenuptial agreement.” Woodington v Shokoohi, 288 Mich App 352, 373;793 NW2d 63 (2010).[2]

DID YOU KNOW THE FOLLOWING IS HOW THE COURTS DECIDE TO DIVIDE YOUR PRIOPERTY.

However, generally, assets earned by one spouse during the marriage are nonetheless considered part of the marital estate. Korth, 256 Mich App at 291. When dividing the marital estate, trial courts may consider the following factors:

(1) the duration of the marriage, (2) the contributions of the parties to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation of the parties, Prenuptial agreements . . . provide . . . people with the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny.[2]

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

In this case, there is an antenuptial agreement that unambiguously provides that “[a]ny property acquired in either party’s individual capacity or name during the marriage . . . shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.” Nevertheless, defendant claims that the trial court incorrectly refused to consider dividing the property instead pursuant to MCL 552.23(1) and MCL 552.401. [2]

Presented by FLINT DIVORCE ATTORNEY  Terry R. Bankert 235-1970 1/9/15.#flintdivorce

SOURCE

[1]

Court: Michigan Court of Appeals (Published),Case Name: AXXXXX v. AXXXXX

e-Journal Number: 58909,Judge(s): Wilder, M.J. Kelly, and Fort Hood Decided 12/18/14

[2]

Decided December 18, 2014,MI Court of Appeals Published Opinions & Orders

AXXXXX v AXXXXX,Before: M.J. Kelly, P.J., and Wilder and Fort Hood, JJ.,

Published Michigan Court of Appeals Opinion,Docket No(s) 308194

Lower Court Docket No(s) 10-110358-DM,Wilder, J.

[3]

http://en.wikipedia.org/wiki/Prenuptial_agreement

Sphere: Related Content

DO YOU WANT YOUR CHILDREN TO LIVE WITH YOU?

When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY

In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause

shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or

more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]

“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding

on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the

facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]

STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014

v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]

STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED November 18, 2014 v No. 320871

Washtenaw Circuit Court LC No. 13-001155-DC

e-Journal Number: 58667

Sphere: Related Content