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,

www.AttorneyBankert.com

 ANALYSIS 

“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 E-journal UnPublished Michigan Court of Appeals, 9-11-02018 NO.341025] 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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CHANGE IN CUSTODY BY TERRY BANKERT 235-1970

DID YOU KNOW.

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 FlintFamilyLaw.com

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CHILD SUPPORT MODIFICATION. ATTORNEY BANKERT

MODIFICATION OF CHILD SUPPORT

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. 

www.attorneybankert.com

“ 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.]

5-1970

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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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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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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BEST INTEREST OF THE CHILD FACTORS

#Bestinterestsofthechild is the Standard used by your #Divorce #Attorney when advocating for your #ChildCustody in #Flint #Genesee or around the State 

The best interests of the child is the standard usedby  #Lawyers in custody disputes between parents, agencies, and third parties.

The court must consider each factor and make findings on the record.Contact attorneybankert.com for more information.

The factors need not have equal weight; the court determines the weight of each factor.

Factors.

• (a) The 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.
• (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. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
• (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.This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
• (f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
• (g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
• (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. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
• (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. [Amended by 2016 PA 95 (eff. Aug 1, 2016).]
• (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. The court may not consider the race of a parent’s spouse in considering whether to change custody.@terrybankert posted here 

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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

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Citizen response by Terry Bankert , 235-1970, to Flint Blue Ribbon Report recommending a City Manager.

Terry Bankert’s response  to Flints “Blue Ribbon Committee on Governance”, the committee, Final Report  to  Mr. Darnell Earley, Emergency Manager City of Flint  July 2014” #flint
7/28/14 5 am.

Source, http://www.cityofflint.com/FinancialMgr/2014/IMAGES/BRC%20Final%20Report%20071714.pdf

cited as [1] Most comments of Terry Bankert Divorce Attorney 810-235-1970 are cited as [trb] Please share this article.

I am only an individual Flint Citizen with one vote, one voice. Please consider adding your voice  and your vote to the Flint Community Discussion on Charter Revision.  [trb]

CALL TO SHOW UP AT THE FLINT CITY COUNCIL MEETING, 07/28/14, AND LET  YOUR VOICE BE HEARD.

"The findings will be presented to the council during its 5:30 p.m. Monday, July 28, meeting. Earley has asked residents to email him directly,  em@cityofflint.com.    , with any comments they may have on the report".[2]

The Committee recommends that on the November Ballot the citizens vote to eliminate the Civil Service Commission and the Ombudsman's office. [trb]

I suggest you not do that . [trb]

These offices are currently not funded and can wait for the election of a Charter Commission to deliberate. 

The Committee also then recommends that  a yes or no vote “ Do you the voter want a Charter Commission “ to be placed on the November 2014 ballot. [trb]

I suggest you vote yes on this.[trb]

Not mentioned is the fact that in the November elections the candidates for the Charter Commission can be placed on the ballot.

If  this practice is followed at the same election also on the ballot will be a Charter Commission. The  highest vote candidates,1 per ward, could  be  elected to the commission. It has not been decided if this process will be used. Ask the EFM Earley em@cityofflint.com

This Charter Commission Candidate election could all happen fast with little lead up time for Citizen candidate to the Flint Charter Commission.  Those with  moneyed support and advance knowledge are putting their campaigns together now.

Ask the EFM Earley , em@cityofflint.com what he intends to do. Will the Candidates be on the ballot during the same election the yes or no vote is asked of the voters?

Ask the EFM if the voters vote down a Charter Commission will he prolong his rule of Flint? em@cityofflint.com

I recall but am not certain that the Charter Commission candidacy requires a petition drive.  

Consider running for the Charter Commission or encouraging a friend  to run. Seek the support of any organization you belong  to  for help. Waiting will just allow the downtown and moneyed interest to get their candidates elected.

I suggest that  the community respond  by forming a number of  inclusive groups  to self educated and engage in the next steps of Change for Flint. Those steps  are the ones involving  the Voting Public.

I predict  events causing change will happen fast. 

Please call on me if I can help in any way.

COMMITTEE REPORT INTRODUCTION, this is not  comprehensive. The link above will allow  you to read the entire  document.

Mr Wesley [ Chairperson of Emergency Managers Committee on Governance in a letter to the Emergency Manager] said “Less than six months ago, you issued a charge to a group of 22 individuals to develop develop recommendations on how the City of Flint might strengthen its governance in order to avoid the possibility of a return to fiscal crisis.”

‘ [1]

‘We all came to the table willing to do the hard work of studying, learning, exploring, and debating the structures, policies and practices that helped Flint get to its current financial difficulties, and the changes that could help us prevent a return to that state.”[1] said Mr. Wesley.

“We made the determination early on in our process to operate by consensus, so the

recommendations contained in this report convey the carefully considered opinions of

the whole. Members of the Blue Ribbon Committee came to this process with different

perceptions and thoughts, and we took the time necessary to talk through points of

contention. While any of us could have drafted recommendations on our own, we feel

this process has enabled us to craft a report that is more balanced and well-rounded

than could have been achieved otherwise”.[1]said Mr. Wesley.

“After reviewing hundreds of pages of reports on municipal governance models and

financial practices, hearing from people with pertinent expertise from inside City Hall

and outside of the community, and holding three community workshops, we are

delivering our final report of recommendations to you.”[1]said Mr. Wesley.

These hundreds of pages of reports should be made available to the public.[trb]

“ We hope that it will prove a useful lens for understanding some of the complex governance challenges that Flint faces, as well as point a way forward for us to enjoy greater accountability and stability in our local government. It has been a pleasure to serve.” [1] pg 2 said Mr. Wesley.

Thank You for Your service Mr. Wesley and the committee. [trb]

THE COMMITTEE EXECUTIVE SUMMARY [1]

From January 2014 through June 2014, the Flint Blue Ribbon Committee on Governance Reform met to  address the issue of changes to governance in the City of Flint, Michigan in response to the ongoing  fiscal crisis facing city government. [1]

The Committee deliberated in private often. [trb]

“The committee’s objective was to address changes in governance  that it believed would lead to improved long-term fiscal health and fiscal stability for city government.These recommendations reflect a consensus of the group.”[1]

A summary of the recommendations is as follows:[1]  My numbers.[trb] My comments [trb]

1. Shifting to a hybrid form of Council-Manager government with an elected Mayor and an appointed City Manager.[1]

I disagree. The we do not need a full time Mayor. What we need is a traditional City Manager system.[trb]

A reduction in City Council is suggested with no number offered. see [1] 

I suggest the membership of the Flint City Coucil be reduced to 5 .[trb]

In the 1974 Charter 2 year council terms were voted in raised later to four years.

The Committee  recommends that the terms of the city council be reduced to 2 years. see [1]

I agree the Flint City Council should be reduced to a 2 yr term [trb] 

 At the same time the committee recommends a mayors term to be four year. see [1]

I disagree. We do  not need a Mayor and in the hybrid version this position has been made to powerful and unaccountable to the rest of the Flint City Council. I sense the Committee holds the Current and past Flint City Councils in contempt and has drafted a document that strips the Flint City Council of meaningful power.[trb]

“In addition, [the committee], recommend”s that the elections be held in even-numbered  years. By holding elections to coincide with Presidential and gubernatorial cycles we hope Flint can boost voter turnout. “[1]  

This is incredibly naive as  a basis for making government better, elections during a partisan election makes these positions partisan.[trb]

What they are suggesting is that in an era of soft money and coordinated campaigns when my Democratic Party  is in full electoral mode they  will dangle the bait of municipal elections. I guarantee that it will be mainstream Democrats that will be  elected. [trb]

Please move the elections to the even numbered years!We will strip Uptown and the Genesee Regional Chamber and their rich backers of any future power in flint and return our City of Flint to the neighborhood and other traditional community leaders. [trb]

2.Reconsideration of the City Council system by a Charter Commission. [1]This step inescapably involves the public under state statute.  But only 3/4 of a loaf will go to the Charter Commission. Structural change like eliminating the strong Mayor and changing to a city manager form of government requires an elected charter commission. Why put the Civil Service and Ombudsman on the ballot now? Why  not wait for a Charter Commission? [trb]

I found the language quite misleading in the recommendation on the Ombudsman vote to be put on the ballot now. The office is currently not being funded and will not be in the near future. There is no reason not to wait for a Charter Commission to deliberate on this issue.[trb]  see [1]

The committee gave a recommendation to  vote by ward in the primary and city wide in the general .[1] 

This might reduce representation in some areas. Bad idea. [trb]

3.Ongoing training for all City Council members.[1] We already have memberships in the ational League of Cities and the Michigan Municipal League. Who will do this training? Michigan State would be a good pick.  What is needed is a politically neutral respected group like MSU to oversee leadership education programs and produce impact statements on proposed policy statement for the elected officials and public. [trb

4.City-appointed officials report to and are hired by the City Manager (with the exception of the City Attorney and City Clerk)[1] 

That is how a professional city manager works. There is no need for a Mayor except  to  call the president of the council by  mayor to guide policy between meeting of the city council and attend ceremonial events.[trb]

5.Elimination of the Civil Service Commission and removal from Charter of Ombudsman Office.[1] This is a topic for the Charter Commission. Why put these on the ballot before before we have a charter commission? [trb]

6.Adoption of multi-year budgeting, strategic planning and long-term financial forecasts.[1]

I agree.[trb]

The rationale for the change of government and the role of specific individuals will be

discussed in greater detail below. A summary of the positions of City Manager, Mayor, and City

Council members under the proposed government-form change is as follows:[1]

City Manager

Appointed by and reports to the elected City CouncilPage

9 [1]  I agree. [trb]

o Chosen through a nationwide search

ICMA Credentialed Manager designation recommended

Responsible for hiring, firing, and managing all city staff including the City Treasurer,

Assessor, and all department heads (with the exception of the City Attorney and City

Clerk) [1] and Ombudsman, I agree [trb]

o Selects department heads based on education and relevant experience [1] I agree [trb]

o Conducts annual performance reviews of department heads

Recommends candidates for City Attorney and City Clerk

Delivers annual budget message.[1] I  do not agree.the City Manager should have no involvement in the selection process of these two positions. [trb]

Mayor

Full-time employee of the City of Flint (with appropriate fringe benefits)[1] I disagree [trb] No separation of powers no need for this position nor has there been one for  several years..[trb]

Runs city-wide as Mayor who will sit on the City Council

Acts as a policy leader and the ceremonial designee for the City of Flint

Sits as President of City Council, [1] Note the council is powerless it cannot appoint its own leadership.[trb]

Votes on council matters[1]The way this is configured it  relegates the Flint City Council to an advisory committee. Big business and big money can load up and deliver the election to a city wide mayoral candidate who appoints the committees for the council, and has a vote on the council. A council that cannot realistically ever fire the manager. Earley the EFM  phase City Manager has is making the City Manager in Flint politically bullet proof from the voters. Earley and Snyder serving Downtown have no plans to give up power. Powerful never does give up power we have to take it. [trb]

Delivers State of the City address annually

City Council

Part-time employees (without fringe benefits)[1]

o Not involved in day-to-day operations of City Hall[1]

Meets, deliberates potential policies, gathers information from citizens, and moves

forward on the passage of policies important to the city. [1] Who sets the budget if not the council. [trb]

Confirms appointments of City Manager, City Attorney and City Clerk by two-thirds

majority[1] This is a super majority. They cannot effectively remove those the hire.[trb

[4]

RECOMMENDATIONS OF THE FLINT BLUE RIBBON COMMITTEE [Manager Committee]

Long Term Sustainability- The Big Picture

HOW LOCAL DEMOCRACY SHOULD BE ORGANIZED.[TRB]

This first category of recommendations relates to reforms designed to move the City of

Flint toward long-term fiscal sustainability.[1]

Q:ARE WE ADOPTING CHARTER LANGUAGE TO FORCE IMPLEMENTATION OF THE FLINT MASTER PLAN?[TRB]

Form of Government

Under Flint’s current Charter, an elected council and mayor have responsibility for setting

policy. [1]  I agree, the Mayor has veto power. Will the Mayor in the hybrid system have veto power.[trb]

Under the current Charter  the Council sets the budget and the Mayor spends the tax money? [trb]

Under the strong-mayor form of government, the mayor also is charged with policy

implementation and managing the day-to-day operations through 21 appointees who serve at the

Mayor’s pleasure. [1] Within this alignment of personnel is the current position of City Administrator which was intended to be a city manager embedded into the Mayors office. The paradigms of good government and excellence in the management of local government were to be found here. [trb]

There are three challenges with this current system that contribute to

financial instability. They are: [1]

1. Reporting Structure: Once appointed, senior City officials, with the exception of the

Treasurer, Clerk, Assessor, and including the City Administrator (who has broad

responsibility for the daily oversight of a multi-million-dollar city budget) serve at the

pleasure of the Mayor and report only to the Council through the Mayor’s permission.[1] This was intended to remove the Mayors officials from the  influence of local politics by City Council meddling. What happened? Why will the same dynamic not affect the City Manager?[trb]

When the Mayor and Council do not have a smooth working relationship—which has

been often—the City Council may not have access to the timely information needed to

make effective policy choices and respond to changing economic realities.[1] The same dynamic  can happen in CIty Manager Cities. We should ask prior and current members of the Saginaw City Council.[trb]

 

While the Council does have the power to subpoena witnesses, including the City Administrator,

this is not an efficient way to obtain necessary information.[1] Yes it is, look at Congress.[trb]

2. Qualifications: There are no qualifications in the Charter that are required to serve as

any of the Mayoral appointees.[1] We relied on the City Council to keep the CIty Administrator professional which all councils failed .[trb]

Few of the appointees chosen since the current Charter was adopted in 1974 had the training and expertise in municipal finances that would have enabled them to foresee and respond to changes in Flint’s finances or manage the complicated budgeting and compliance procedures that must be in place. [1] Obviously none of them did.[trb]

On More than one occasion, mayors have appointed political friends or campaign managers to this key  position despite not having the skills needed to carry out the job. [1]

On every occasion the City Council did not demand professionalism in this position. Charters are pieces of paper is Flint Citizens that breath life into our local government.[trb]

3. Information: Because the City Administrator, department heads, and other mayoral

appointees serve solely at the pleasure of the Mayor, they may overlook financial

information or performance inadequacies that would be politically inconvenient. [1] 

City manager that survive by simple majority will suffer the same pressure. Managers like the hybrid with the protection of a super majority may adopt their friends agenda like Uptown for instance and cannot realistically  be removed. The Ombudsman's could not be removed except by super majority but that office had a fixed term. Possibly this hybrid  model must stand a simple majority confidence vote every four years. If they fail they are gone.[trb]

Naturally, employees may feel pressured to downplay sobering information or risk losing

their jobs. This prevents the public and City decision-makers from accurately

understanding the City’s financial position and making timely, informed choices.[1]

Flint has had a manager for a half dozen years or so an emergency manager to be specific. How effective have these managers been?[trb]

As such, we recommend that the City of Flint’s form of government be changed from the

current strong-mayor form of government, in which the mayor is ultimately responsible for the

day-to-day management of City Hall, to a hybrid form of government in which the Mayor is a

voting member of City Council; a City Manager appoints department heads and manages City

operations. [1]

I agree we should have a traditional City Manager but not this ill defined hybrid.[trb]

This will encourage greater collaboration between the Mayor and the City Council

and separate policy development (which is the purview of elected officials) and implementation

(to be carried out by a professional, competent, and trained staff). [1]

Nonsense. The Mayor without budget expenditure control and personnel that report to him will be ineffective , just like the incumbent is today. What is being described is a President of the City Council  being called Mayor with ceremonial responsibilities.[trb

Such a structure will enable the government to be run efficiently and effectively[1]. More will be required.[trb]

The Mayor would sit as the President of the City Council, voting on council matters, and

act as policy leader and ceremonial designee for the City of Flint. Rather than being selected by

City Council from among their members as is the case in many council-manager governments, [1] (This is a good system[trb]).....

we recommend a hybrid in which the Mayor runs for and is elected to that position by voters.

While the Mayor may have public events, meetings, and other duties that require attention

throughout the day, the rest of the Council will have a role that does not require involvement in

day-to-day operations.[1] I disagree [trb]

The City Council members’ responsibilities will be to meet, carefully

deliberate potential policies, gather information from citizens, and move forward on the passage

of policies important to the city.[1] I agree. [trb]

We recommend that the Mayor be a full-time employee of the  City of Flint (with appropriate fringe benefits) and Council members be part-time employees (without fringe benefits).[1]

I disagree.   The Mayor and council should receive  no compensation. The Council President /Mayor should receive a per diem for  City related travel and each member encouraged to attend meetings of state and national Municipal Government Associations. [trb

The Local Officials Compensation Commission is advised to consider

appropriate compensation for the roles of the elected officials. Council members’ compensation

should not be so high as to eclipse a desire for public service as the chief motivation for running

for the position. [1] pg 10

I disagree this body should be disbanded and no compensation offered to elected officials in Flint. [trb]

What do you think? Will you be active in the future charter revisions activities. Several of us are organizing and meeting. If you would like to participate let us know. terry@attorneybankert.com

Sincerely

Terry Bankert

Source,

[1]

http://www.cityofflint.com/FinancialMgr/2014/IMAGES/BRC%20Final%20Report%20071714.pdf

cited as [1]

[trb]

Most comments of Terry Bankert are cited as [trb] Please share this article.

see http://occupyflintlegal.wordpress.com/

[2]

http://www.mlive.com/news/flint/index.ssf/2014/07/flint_residents_expected_to_ma.html

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