Wednesday, September 30, 2009

Judge calls Trial a "B" movie!

Good Morning Flint!
By Terry Bankert
Judge call trial a “B” movie.

Flint Divorce Attorney Terry Bankert reviews here ,child custody issue, the case of (S) v (S) a Genesee County Case with a local case number 07-278620-DM . The Michigan Court of Appeals issued an unpublished Opinion on 9/17/09 where it upheld the lower court ruling. The Parties, Judge and Attorneys can be seen by going to The Genesee County ,Courts,7th Judicial district/court records , 07-278620-DM

In this case Flint Divorce Lawyer Terry Bankert states the mother appeals as of right the judgment of divorce.

Specifically, she contests the trial court’s award of joint physical custody, with her and Husband alternating custody of their children.

The Michigan Court of Appeals found the trial court’s factual findings were not against the great weight of the evidence, because the award of joint physical custody was not an abuse of discretion, and because the trial court did not consider evidence outside the record, the Court of appeals upheld the lower court decision.

How does the Michigan Court of Appeals review a local court decision on custody?

The Michigan Court of Appeals applies three standards of review in child custody cases. McIntosh v McIntosh, 282 Mitch App 471, 474; 768 NW2d 325 (2009).

First, they review the trial/local court’s findings of fact, including the court’s ultimate finding on a particular factor, under the great weight of the evidence standard, and the Michigan Court of appeals will affirm the findings unless the evidence clearly preponderates in the opposite direction. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889

The Michigan Court of Appeals will defer to the trial court’s credibility determinations.
McIntosh, supra at 474.

Second, they will review the trial court’s legal conclusions for clear legal error. Fletcher, supra at 881.

Third, they review the trial court’s discretionary decisions, including the court’s ultimate award of custody, for an abuse of discretion. McIntosh, supra at 475.

In child custody cases, a trial court abuses its discretion when its chosen result is “‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’” Shulick v Richards, 273 Mich App 320, 324-325; 729 NW2d 533 (2006), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).

Did you know that in determining custody, the overriding concern is the child’s best interests.” McIntosh, supra at 475. The Child Custody Act sets for the criteria for determining a child’s best interests:

(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. [MCL 722.23.]

In Michigan a local trial court must consider, evaluate, and determine each of the factors contained in MCL 722.23 in determining a child’s best interests. Sinicropi v Mazurek, 273 Mich
App 149, 182; 729 NW2d 256 (2006).

However, “[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.” Id. at 184.
In this case rather than make a judgment regarding which parent was a better human being, the trial court determined that the children would be better off maintaining an equal relationship with both, and that this would provide the stability recommended by the doctors.

Therefore, the trial court awarded joint custody.

The Michigan Court of Appeals deferred to the local trial court’s determinations of credibility and, as discussed above, the findings for the best interests factor were not against the great weight of the evidence. The trial court did not abuse its discretion in awarding joint custody.

The Michigan Court of Appeals did uphold the finding and order of the local trial court.

You may find interesting a written statement of the local trial judge when the judge gave the courts general impression of the entire case in the opening
paragraphs of its written opinion and order:

So much time was expended in a “B” movie-like format in an attempt to persuade
the Court as to who was the real low-life in the marriage. The tact was not
outcome-determinative and was otherwise a colossal waste of money and
emotional energy

Posted here by
Terry Bankert

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