Friday, November 29, 2019

CHILD CUSTODY Presented By Terry Bankert Flint Family Law (810) 235-1970

HOW WILL A COURT MAKE A CHILD CUSTODY DECISION CONCERNING YOUR CHILDREN . Presented here by Flint Family Law Attorney Terry Bankert (810)-235-1970,


“Before any decision as to the custody of a child is made, the court must determine whether an established custodial environment exists. Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000).”

 “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.” MCL 722.27(1)(c).

 The trial court “shall not . . . 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).
[Source. E-journal UnPublished Michigan Court of Appeals, 9-11-02018 NO.341025] 

“ Here, the trial court determined that an established custodial environment existed with plaintiff and defendant does not challenge that finding on appeal. “

“Therefore, going forward, defendant had the burden of proving by clear and convincing evidence that modification of the established custodial environment was in the children’s best interests.”

 “To determine the best interests of the children in child custody cases, a trial court must consider all the factors delineated in [MCL 722.23] applying the proper burden of proof.” Foskett v Foskett, 247 Mich App 1, 9; 634 NW2d 363 (2001).”

“ A trial court’s findings with regard to each factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.” Berger, 277 Mich App at 705.”

 “This Court will defer to the trial court’s credibility determinations, and the trial court has discretion to accord differing weight to the best-interest factors.” Id. -3- MCL 722.23 cites 12 factors to be considered, evaluated, and determined by the court to decide 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent. 
(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].”

If you have additional questions feel free to make a no cost appointment. Terry Bankert Family Law Attorney Flint and Genesee County  (810) 235-1970)

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Wednesday, November 27, 2019



MCL 722.27(1)(c) provides that in a custody dispute, a trial court, for the best interests of the child at the center of the dispute, may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.” 

[Principle source e-journal #71713, Unpublished 11/14/19.No.349021. ]

But the court is not permitted to “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).

“These initial steps to changing custody— finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended 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) (quotation marks omitted). 

The first step in the analysis is to determine whether the moving party has established proper cause or a change of circumstances by a preponderance of the evidence. Id. at 508-509.

In McRoberts v Ferguson, 322 Mich App 125, 131-132; 910 NW2d 721 (2017), this Court explained: 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. 

In order to 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.

To constitute a change of circumstances under MCL 722.27(1)(c), the 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. [Citations, quotation marks, and alterations omitted.] 

With respect to the issue of “proper cause,” the criteria outlined in the statutory best
interest factors, MCL 722.23, “should be relied on by a trial court in deciding if a particular fact raised by a party is a ‘proper’ or ‘appropriate’ ground to revisit custody orders.” Vodvarka, 259 Mich App at 512. 

In regard to “change of circumstances,” the relevance of facts presented should also “be[] gauged by the statutory best interest factors.” Id. at 514. “Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.” Corporan, 282 Mich App at 605. 

In Vodvarka, 259 Mich App at 512, this Court, addressing the threshold issue, observed: Obviously, trial courts must make this factual determination case by case. Although these decisions will be based on the facts particular to each case, we do not suggest that an evidentiary hearing is necessary to resolve this initial question. 

Often times, 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.

 MCR 3.210(C)(8) provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.

 It is clear to us, and was effectively accepted by the trial court, that if the allegations set forth in plaintiff’s motion to modify custody are true, they would easily establish a change of circumstances and proper cause for purposes of revisiting the issue of custody under the statutory best-interest factors.

 But the trial court found it problematic that plaintiff had not submitted any statements, affidavits, reports, or other documentary evidence to support the allegations, let alone evidence that was current and relevant. 

The motion to modify custody was not verified, nor did plaintiff supply her own affidavit. MCR 3.210(C)(8) allowed the trial court to require “an offer of proof or otherwise” in relation to deciding whether to order an evidentiary hearing.

Under the circumstances of the case and given the remarks made by the trial court when ruling on the motion, the court’s hesitation and resistance at giving any weight to the allegations in plaintiff’s motion was plainly driven by the four CPS investigations instigated by plaintiff that resulted in determinations that allegations of abuse by defendant could not be substantiated.

The lack of substantiation, again and again, could reasonably call into question plaintiff’s motives and credibility on all matters.

 The trial court appeared more than open to further considering a motion to modify custody if plaintiff would come forward with supporting documentary evidence, explaining why the court took the unusual step of denying the motion without prejudice.

 Indeed, the record and the CPS history support the trial court’s decision to deny the motion to modify custody simply on the-1970 basis that plaintiff did not provide supporting documentation on the threshold issue of change of circumstances or proper cause."
Presented here by Terry Bankert Flint Divorce Attorney 810-235-1970

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Saturday, November 23, 2019



In this economically hard time parents may need to modify their child support. Sometimes the original order called for no child support by agreement of the parties.

“ While it is true that a court can generally only modify orders for child support upon a showing of a change in circumstances justifying the modification, see MCL 552.17; Aussie v Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990), “[w]hen a court order does not provide for child support, such maintenance may later be provided by the court and does not depend upon a change of circumstances,” Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989).”

“When  properly motioned for a change in child support  the Court may deny the motion. The question then is  has “...trial court correctly decided that it should not modify its previous child support order and that the parties should be held to their agreement that defendant not pay child support. MCL 552.605(3) states that a court is not prohibited “from entering a child support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.” (Emphasis added.)”

“ MCL 552.605(2) states: (2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519.”

“ The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:
 (a) The child support amount determined by application of the child support formula.
 (b) How the child support order deviates from the child support formula. 
(c) The value of property or other support awarded instead of the payment of child support, if applicable.
 (d) The reasons why application of the child support formula would be unjust or inappropriate in the case.”

“In Burba v Burba, 461 Mich 637, 644; 610 NW2d 873 (2000), our Supreme Court held that “the criteria [in MCL 552.605(2)(a)-(d)] for deviating from the formula are mandatory.” 4 The Burba Court emphasized that “[t]he importance the Legislature attached to courts carefully articulating these factors when deviating from the formula cannot be underestimated, for the Legislature prescribed their use when courts deviate from the formula in no less than eight different sections of the Michigan Compiled Laws.” Id. “To impress upon the courts the gravity of deviating from the formula, the Legislature has required them to meticulously set forth these factors when deviating.” Id. at 645-646. “

“Thus, as required by MCL 552.605(2), when deviating from the formula, the trial court fulfills its statutory duty only when the court has articulated its rationale in accordance with subsection 2(a) through (d).” Peterson, 272 Mich App at 517. “ [Source and Unpoublished Michigan Court of Appeals,11/14/19, case e-journal, #71700 Ncheugium v Tegadjourfrom Saginaw Circuit Court.]
If you have additional questions about Divorce, child support or other Family Court Issues Please call Terry R. Bankert, Flint and Genesee County Attorney, 810-235-1970

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