Monday, June 24, 2019

CHANGING CHILD CUSTODY. Attorney Terry Bankert (810) 235-1970

#FLINT#GENESEE#Michigan ISSUE- CHANGING CUSTODY
"Where a current order governs the custody of a minor child, the party moving to modify that order must prove “either proper cause or a change of circumstances sufficient to warrant
reconsideration of the custody decision.” Gerstenschalger v Gerstenschalger, 292 Mich App.654, 657; 808 NW2d 811 (2011)."
Presented here by Terry Bankert Flint Family Law Lawyer, (810 235-1970 www.attorneybankert.com
"[T]o establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be
relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. . . . "
" * * *[T]o establish a “change of circumstances,” 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. . . ."
" [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. This too will be a determination
made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors. [Vodvarka v
Grasmeyer, 259 Mich App 499, 512-514; 675 NW2d 847 (2003)."
"If the movant establishes proper cause or a change in circumstances, the court may modify an established custody order if the court determines that the modification is in the child’s
best interests. MCL 722.27(c); Dailey v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501
(2011)."
“When a modification would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child’s best
interest.” Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010)."
“If the proposed change does not change the established custodial environment, however, the burden is on the parent
proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests.” Id."
" If the movant does not establish proper cause or a change in
circumstances, the trial court may not revisit the current custody order. Dailey, 291 Mich App at
666-667."
(Source; Unpublished Michigan Court Of Appeals 6/11/19, No 346335)

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Wednesday, June 12, 2019

CHANGING CUSTODIAL ENVIRONMENT.

MAY A COURT AMEND A CUSTODY OR PARENTING TIME ORDER?
A trial court may modify or amend its previous judgments or orders, including those addressing custody or parenting-time issues, “for proper cause shown or because of a change of circumstances.” MCL 722.27(1)(c). Before doing so, a trial court “must first consider whether the proposed change would modify the established custodial environment.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). “
WHAT IS THE ESTABLISHED CUSTODIAL ENVIRONMENT.
“The established custodial environment is the environment in which over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” Id. (quotation marks omitted), citing MCL 722.27(1)(c). “
EXAMPLE OF WHEN THIS ENVIRONMENT NOT CHANGED.
“Whereas minor modifications that leave a party’s parenting time essentially intact do not change a child’s established custodial environment, significant changes do.” Lieberman, 319 Mich App at 89-90 (cleaned up). If parenting-time adjustments “will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed.” Pierron, 486 Mich at 86. “
EVIDENCE NEED TO CHANGE CUSTODIAL ENVIRONMENT
“The trial 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). “
“It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” MCL 722.27a(1).”
“Whereas the primary concern in child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents.” Shade v Wright, 291 Mich App 17, 28-29; 805 NW2d 1 (2010).” (Source, e-journal #70586, Michigan Court of Appeals unpublished 5/21/19, no.346025.)
Presented here by Flint Divorce Lawyer Terry Bankert Attorney practicing Family Law, Divorce, Child Custody, Parenting time, Support and other Family issues. 1-(810- 235-1970, www.attorneybankert.com No charge for initial appointment.

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Friday, June 7, 2019

Mentally Ill Parent and Child Custody. Terry Bankert (810) 235-1970

Will mental illness cause a loss of custody?
"... while mental illnesses may create unfortunate barriers for parents in child custody cases, it is the best interests of the child that must guide a trial court in making custody and parenting time decisions."


"Unlike cases involving the termination of parental rights, in which courts must balance the best interests of minors against the constitutional rights of their parents, a trial court’s singular focus in cases brought under the Child Custody Act, MCL 722.21 et seq., is “ ‘to promote the best interests of the child and to provide a stable environment for children that is free of unwarranted custody changes.’ ” Lieberman v Orr, 319 Mich App 68, 78; 900 NW2d 130 (2017), quoting Pierron v Pierron, 282 Mich App 222, 243; 765 NW2d 345 (2009). With respect to parenting time decisions in particular, MCL 722.27a(1) provides, in pertinent part: (1) Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Except as otherwise provided in this section, parenting time shall be granted to a parent in frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time. -5- However, if “it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health,” parenting time need not be ordered. MCL 722.27a(3); Luna v Regnier, 326 Mich App 173, ___; ___ NW2d ___ (2018) (Docket No. 343382); slip op at 3. "
(e-journal 70441, Jackson v Appling Mich. App. Unpublished 5/7/19.No. 345488.

Presented here by Flint Family Law ,Divorce, Attorney Terry Bankert. www.attorneybankert.com .
Call Lawyer Terry Bankert  (810) 235-1970

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Spousal Support Modification


What will you need to do to change a spousal support order.

“A divorce judgment entered upon the settlement of the parties represents a contract, which, if unambiguous, is to be interpreted as a question of law.” Holmes v Holmes, 281 Mich App 575, 587; 760 NW2d 300 (2008). A trial court may modify spousal support based on new facts or different circumstances arising after entry of the divorce judgment. Ackerman v Ackerman, 197 Mich App 300, 301; 495 NW2d 173 (1992). The burden is on the party seeking modification to establish that the facts warrant modification. Id"

Presented here by Attorney  Terry Bankert, 810-235-1970, Flint Family Law , Divorce, Lawyer.
www.attorneybankert.com

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Tuesday, May 21, 2019

UNFOUNDED CPS COMPLAINTS TO STOP VISITATION . (810) 235-1970

WILL UNFOUNDED CPS CALLS CHANGE CHILD CUSTODY?


In a recent Unpublished Michigan Court of Appeals direction , not controlling, was given on this question. On Appeal “ ... defendant suggests that plaintiff’s alleged use of innocent agents to file multiple CPS reports against him was not given sufficient weight and should have warranted a change in custody, we disagree.”
( source:  Unpublished M.A. Case 5/2/19 No. 345501, Alger County Family Division LC 14-007383-DC)


AN ALLEGATION DOES NOT MEAN THEY ARE TRUE.


The Court stated  “[a] court need not give equal weight to all the factors, but may consider the relative weight of the factors as appropriate to the circumstances.” Sinicropi, 273 Mich App at 184. The trial court did so here. “


FOUR CPS COMPLAINTS INCLUDING SEXUAL ABUSE BEFORE COURT DATES.


“At the hearing, defendant testified that at least four CPS complaints were filed against him, and that three of those complaints involved sexual abuse allegations related to the child.


WAS PLAINTIFF JUST TRYING TO BLOCK DEFENDANTS PARENTING TIME?


Defendant’s counsel argued that CPS investigations were being filed before court hearings and being filed through agencies as part of plaintiff’s effort to keep the child from visitation. “


CLAIMS THAT NEW SPOUSE ABUSING TO CHILD.


“Additionally, one of the CPS investigators charged with investigating an April 2018 complaint, which alleged that defendant’s wife struck the child 14 times, testified that she felt that there might have been some coaching occurring with the child because his answers were inconsistent.”


“ A copy of that CPS investigation report was presented to the trial court. Plaintiff testified at the hearing that she had not made any of the claims to CPS. She indicated that the reports were made by the child’s primary care physician, an emergency room doctor, a police officer, the child’s psychologist, and an unknown person “downstate.” “



“Plaintiff acknowledged that she took the child to the medical appointments and spoke with the police officer. Plaintiff indicated that she was unaware of the psychologist’s report to CPS until the investigation was opened and CPS arrived at her home.”


“ Plaintiff denied that she ever told the child what to say to CPS. In fact, plaintiff opined that the child was making allegations to avoid going to parenting time, and that “he was making some of the stuff up.” “


“Plaintiff also testified that she did not believe the child’s report that defendant’s wife struck him. The trial court informed the parties that it had read and considered the CPS report prior to rendering its decision.”


NONE OF THE COMPLAINTS WERE FOUND TO BE TRUE


“ In its analysis of best-interest factor (l), the trial court noted that repeated CPS allegations “certainly” favored defendant because none were substantiated. The trial court showed concern for the minor’s dishonesty during his interview, and assigned “more responsibility” to plaintiff for triggering the investigations, but could not place responsibility on her for fabricating the information going into the investigations.”


BEST INTEREST FACTOR L


“ Ultimately, the trial court concluded that for factor (l), “more things lean towards [defendant],” but there were also aspects that supported the child’s current home environment. Ultimately, the trial court concluded that the parties were equal “on almost all factors.” Plaintiff was favored in factor (d) and some aspects of factor (l), and defendant was slightly favored on factor (e) and some aspects of factor (l).”


“ The trial court indicated that after consideration of the factors, defendant ultimately failed to convince the court by clear and convincing evidence that a change in custody was in the child’s best interests. It is clear from the record that the trial court adequately considered and addressed the CPS allegations and investigations in reaching its conclusions.”

Presently here as an example of how  CPS complaints are handled. By Terry Bankert Flint Divorce Attorney (810) 235-1970 www.attorneybankert.com

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Wednesday, May 1, 2019

BEST INTEREST FACTORS

BEST INTEREST OF CHILD FYI-“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 (see §3.8). “

“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).”

“A court’s decision regarding custody must be based on “competent evidence adduced at trial.” DeBoe v DeBoe, No 246083 (Mich Ct App Sept 18, 2003) (unpublished).”

Presented here by Attorney Terry Bankert a Flint Family Law, Divorce, Lawyer. 810-235-1970. http://www.attorneybankert.com.


722.23 “Best interests of the child” defined.

“Sec. 3..Evaluation of the 12 best interests factors depends on the facts and circumstances of each case. Custody is not awarded on the basis of which parent “scores” the most points. Lustig v Lustig, 99 Mich App 716, 299 NW2d 375 (1980). If each parent “wins” on six of the factors, it does not mean that the party with the burden of proof cannot be awarded custody. Heid v AAASulewski, 209 Mich App 587, 532 NW2d 205 (1995).”

“Factors need not be given equal weight. The weight to be given any factor is ultimately left to the court’s discretion. Riemer v Johnson, 311 Mich App 632, 876 NW2d 279 (2015) (not error for court to order joint physical custody when more best interests factors favored father because court could value factors differently); McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998) (that father’s vindictiveness would probably act to destroy parent-child relationship with mother did not outweigh other factors so as to award custody to mother).”

“MCL 722.23 defines the “ ‘best interests of the child’ ” as “the sum total of the” factors set forth in MCL 722.23(a)-(l). “In child custody cases, the family court must consider all the factors delineated in MCL 722.23 and explicitly state its findings and conclusions with respect to each of them.” Spires v Bergman, 276 Mich App 432, 443; 741 NW2d 523 (2007). As a general rule, we defer to the trial court’s credibility determinations, “and the trial court has discretion to accord differing weight to the best-interest factors.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). ( Source Bogue v Swinson Unpublished Michigan Court of Appeals, 4/16/2019,e-journal #70283,No. Gladwin Circuit Court Family Division LC no. 16-008762-DM.)”.

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Tuesday, April 9, 2019

Assets not distributed cause interest penalty. Terry Bankert 810-235-1970.

Can the court award interest on assets distributed in a judgement of divorce but not speedily transferred? Yes.
FYI- “The trial court possesses equitable powers to grant “interest on the amounts granted in thedivorce judgment.” Lawrence v Lawrence, 150 Mich App 29, 34; 388 NW2d 291 (1986).
Such power is within the trial court’s discretion. Id. “This discretion also applies to awards of intereston amounts to be paid pursuant to a property division when such amounts are overdue.” Id.
The purpose of awarding interest is not to compensate the party for lost use of such entitled topayments; rather, it is to “prevent[] the delinquent party from realizing a windfall and assuresprompt compliance with court orders.” Olson v Olson (On Remand), 273 Mich App 347, 354-355; 729 NW2d 908 (2006).”
SOURCE is Michigan Court of Appeasls Unpublished 3/21/19. Sicher No. 34141 Livinston County 12-005416 DM
Presented here by Flint Divorce Lawyer Terry Bankert  if you have additional questions please call 810-235-1970. Or contactme through my web page at attorneybankert.com.


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Friday, April 5, 2019

FLINT DIVORCE LAWYER ,CHILD SUPPORT CUSTODY, FLINT ATTORNEY



Daily internet new from Flint MI USA

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Spouse moving out of state with child. 235-1970

TOPIC
A PARENT WANTS TO  MOVE OUT OF STATE. CAN THIS PARENT MOVE AND WHAT IS THE IMPACT ON CUSTODY PARENTING TIME AND CHILD SUPPORT?

HERE THE PARTIES HAVE JOINT LEGAL AND JOINT PHYSICAL CUSTODY IN A MICHIGAN ORDER.

Presented here by Terry Bankert  Flint / Genesee County MI Family Law Lawyer (810) 235-1970, www.attorneybankert.com.

FACT SITUATION

The mother desires/plans to move more than 100 miles to another state.
Father is opposed to the child moving. On its surface the issues are 
1. Change in domicile. 
2. Change in parenting time and effectively custody. 
How is father's position defended?

SUMMARY

In summary, in ruling on requests to modify previous judgments, or orders concerning custody, the court must consider three issues before modifying a custody order:
 
Has the petitioner carried the initial burden of establishing either “proper cause shown” or a “change of circumstances”?  Father will argue that Mother has not met her burden.
Is there an established custodial environment?  Father will argue that the established custodial environment is joint custody.
Is the modification in the best interests of the child? []MFL12] The best interest burden is clear and convincing evidence and will not be met. 
This requires an analysis of the best interests factors of MCL 722.23.Google and review .
 
Presented here by Terry Bankert  Flint / Genesee County MI Family Law Lawyer (810) 235-1970, www.attorneybankert.com

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Tuesday, April 2, 2019

Spousal Support 810-235-1970

SPOUSAL SUPPORT REVIEW BY FLINT DIVORCE ATTORNEY TERRY BANKERT 810-235-1970. WWW.ATTORNEYBANKERT.COM
The purpose of spousal support is to “balance the incomes and needs of the parties in a way that will not impoverish either party” based on that which is “just and reasonable under the circumstances of the case.” Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010). [3/19/19 Csercse ]
To assist the analysis, this Court has enumerated several factors for a court to consider: Factors to be considered are
(1) the past relations and conduct of the parties,
(2) the length of the marriage,
(3) the abilities of the parties to work,
(4) the source and amount of property awarded to the parties,
(5) the parties’ ages,
(6) the abilities of the parties to pay alimony,
(7) the present situation of the parties,
(8) the needs of the parties,
(9) the parties’ health,
(10) the prior standard of living of the parties and whether either is responsible for the support of others,
(11) contributions of the parties to the joint estate, and
(12) general principles of equity. In addition, the court may consider a party’s fault in causing the divorce. [Thames v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991) . [3/19/19 Csercse ]
“[T]he effect of cohabitation on a party’s financial status” is also relevant. Berger v Berger, 277 Mich App 700, 727; 747 NW2d 336 (2008). [3/19/19 Csercse ]
The trial court should make specific findings of fact for factors that are relevant to the case. Myland, 290 Mich App at 695. [3/19/19 Csercse ]
The “Tax Cuts and Jobs Act signed into law on December 22, 2017, eliminates the alimony deduction (Section 71 payments) for agreements executed after December 31, 2018,[ICLE]
A Judgment of Divorce is required by MCR 3.211(B)(4) to contain a provision “reserving or denying spousal support.” If for some inexplicable reason, a Judgment of Divorce is silent regarding spousalsupport, under MCR 3.211(B)(4), the issue of spousal support is reserved. Prior to the enactment of MCR 3.211(B)(4), if a Judgment of Divorce was silent in regards to spousal support it was barred and, therefore, not modifiable. Mack v Mack, 283 Mich 365; 278 NW 99 (1938).[ICLE]
SPOUSAL SUPPORT REVIEW BY FLINT DIVORCE ATTORNEY TERRY BANKERT 810-235-1970. WWW.ATTORNEYBANKERT.COM
PRINCIPAL SOURCE. S T A T E O F M I C H I G A N C O U R T O F A P P E A L S GREGORY ALLEN CSERCSE, Plaintiff/CounterdefendantAppellant, UNPUBLISHED March 19, 2019 v No. 342902 Gladwin Circuit Court SHARON ANN CSERCSE, LC No. 17-008899-DO Defendant/CounterplaintiffAppellee. Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ. PER CURIAM. CITED HERE [3/19/19 Csercse ]

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Monday, March 18, 2019

SEPARATE MAINTENANCE


SEPARATE MAINTENANCE

FYI “Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons.”Source Michigan Family Law Benchbook, Ch 2 , Icle 2nd ED 2006


“ Separate maintenance may allow both parties to have continued health care coverage, but some employers and heath insurance providers treat an action for separate maintenance as a triggering event disqualifying a nonemployee spouse from continued health insurance coverage. This is not uniformly applied by either employers or health insurance providers.”

Presented here by Terry Bankert Flint Divorce attorney (810)-235-1970, www.attorneybankert.com


“An action for separate maintenance is filed in the same manner and on the same grounds as a divorce. MCL 552.7. Either the plaintiff or the defendant must have resided in the state for at least 180 days and in the county of filing for at least 10 days immediately preceding the filing of the complaint. MCL 552.7(1), .9(1). Both of these residency requirements are jurisdictional and must be met on the date of filing. If the requirements are not met, the action may be dismissed or the judgment set aside. Lewis v Lewis, 153 Mich App 164, 395 NW2d 44 (1986) (circuit court lacks jurisdiction in separate maintenance action if neither party met residency requirement before filing). See chapter 1 for a complete discussion of the procedural requirements for a divorce.”

“When the matter is concluded, the parties are still technically married, but the marital property may be divided, MCL 552.19, and the court may order support for a spouse who requires it, MCL 552.23(1).”

“A separate maintenance action will result in a divorce judgment if the defendant files a counterclaim for divorce and the statutory grounds are established. MCL 552.7(4)(b).”

“ If a party wishes to divorce after a final judgment has been issued in a separate maintenance action, the party should file an entirely new cause of action. Although many issues will already have been decided and are enforceable under the judgment, any remaining issues like dissolution of the marriage should occur under the new action.”

“In Kresnak v Kresnak, 190 Mich App 643, 476 NW2d 650 (1991), even though the husband died before the entry of the judgment, a property settlement agreement in a separate maintenance action was enforced where the parties had placed it on the record and it had been generally approved by the court. The general rule that the divorce court lacks jurisdiction to render a divorce after the death of one of the parties did not apply. The issue was not the severing of the relationship, but the enforcement of a contractually binding agreement. Id. at 649–650.”

MCL 700.2801(1) of the Estates and Protected Individuals Code excludes an individual from surviving spouse status when that individual is divorced from the decedent or the marriage has been annulled. A decree of separation does not terminate the status of husband and wife and is not a divorce for purposes of MCL 700.2801(1). However, MCL 700.2801(2)(c) provides that a surviving spouse does not include “[a]n individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.” Although a judgment of separate maintenance does not terminate the status of husband and wife, it is a court proceeding “purporting to terminate all marital property rights.” But see §2.4(discussing same-sex marriage after Obergefell v Hodges, 576 US ___, 135 S Ct 2584 (2015)).”

“Unless it provides to the contrary, a waiver of “all rights” in the property or estate of a spouse or a complete property settlement entered into after the marriage

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Wednesday, January 23, 2019

Established Custodial Environment

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UNBUNDLED SEERVICES

I offer unbundled services at a fraction of the cost. Terry Bankert Family Law Attorney 810-235-1970

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