Friday, January 9, 2015
VICTEM OF DOMESTIC VIOLENCE STUCK WITH ANTENUPTIAL AGREEMENT
Wednesday, January 9, 2013
" I have one question for political leaders, when will you find the courage to stand up to the gun lobby?"[1]
http://www.cbsnews.com/8301-34222_162-57562795-10391739/biden-to-meet-with-nra/
Children are dying in the streets and in the school because we drank the Kool Aide of the gun industry. The " Responsible Gun Owners " ,when the NRA is neutered ,will lead the way to responsible gun reform.[trb]
"I have one question for political leaders, when will you find the courage to stand up to the gun lobby? Whose child has to die next?" [1]
-----
By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970
...Vice President Biden is scheduled to meet Wednesday with victims groups and gun-safety organizations....The meeting is to be part of a series of gatherings Biden is conducting this week at the White House aimed at building a consensus around proposals to curb gun violence following the horrific elementary school shooting in Newtown, Conn.[1]
It appears that the Republicans have been very effective in giving human qualities to inanimate objects. Corporations are labeled as people and given the right to contribute to political campaigns and manipulate national politics. We should follow this lead and assign legal human like responsibilities to an inanimate object that kills indiscriminately women,children,the elderly and the rest of us. Guns are killers. Guns must be removed from our common areas. Guns protectors like the NRA and other Gun coddlers are nothing more than co-conspirators to murder. Enough is enough. Bear all your arms in your home or in other highly regulated ways.Guns should be treated like any other serial killer. Guns do kill.[trb]
President Obama has indicated that he wants Congress to reestablish the ban on assault weapons, which expired in 2004, and limit the size of magazines and expand background checks, including closing the gun show loophole, which allows unlicensed sellers to sidestep checks.The task force is also expected to look at broader efforts that might include a national database and proposals that can be implemented without congressional approval.[1]
Biden has also been conferring with New York City Mayor Michael Bloomberg, who is a vocal advocate for gun regulation. His group, Mayors Against Illegal Guns, launched a TV ad Tuesday to pressure lawmakers to "stand up to the gun lobby."[1]
Giffords — came as the former congresswoman and her husband announced that they are forming a political action committee aimed at curbing gun violence. [2]
Giffords and Mark Kelly, a former astronaut, wrote in an op-ed published in USA Today that their Americans for Responsible Solutions initiative will raise money to support greater gun control efforts and take on the powerful gun lobby. [2]
“Achieving reforms to reduce gun violence and prevent mass shootings will mean matching gun lobbyists in their reach and resources,” the couple wrote, and they will “raise funds necessary to balance the influence of the gun lobby.”[2]
I predict at the end of the day after the positioning of responsible gun owners and those of us tired of being slaughtered law enforcement will be given more tools and non responsible gun possessors will face new sanctions. [trb]
One of the issues sure to come up in the Biden group's discussions is the role of the Bureau of Alcohol, Tobacco, Firearms and Explosives.[3]
The ATF is the primary enforcer of the nation's gun laws, but advocates and former ATF officials say the agency has been underfunded, understaffed and handcuffed in its abilities to go after gun crimes.[3]
I suggest
1.law enforcement will be allowed to profile vehicles to search for weapons and seize same. No open carry in a vehicle.[trb]
2. Illegally transport a weapon and the weapon is forfeited owner driver or passenge[trb]r.
3. Give police authority to search your home for ammunition and any weapon in it if an illegally transported gun is seized from a vehicle you are in or you own the vehicle.[trb]
4.Tax ammunition. If a bullet cost $5,000.00 gun violence would go down.(name the stand up comedian)[trb]
5.Make Flnt a very expensive city to transport a weapon illegally.[trb]
6. Politically take on the NRA. [trb]
Standing up to the gun lobby is seen by gun control advocates to mean not only banning assault-style weapons and high-capacity magazines, but restoring some teeth to the ATF.[3]
When gun safety advocates refer to the gun lobby, there are numerous organizations that promote less gun regulation, but the most powerful is the National Rifle Association, which has spent nearly $10 million since President Obama's inauguration on lobbying activity, according to the Center for Responsive Politics. That number doesn't include the more than $30 million the NRA's political action committee and the organization's affiliated political nonprofits spent to influence the 2012 presidential and congressional elections.[1]
The NRA has proposed placing armed guards in schools to clamp down on shootings. It's a proposal the president has rejected.[1]
A Face book friend said:James L. Smith And the responsible gun reform will lead to what? I'm not a gun owner or supporter, but I do know this. People who own guns responsibly already comply with the myriad of existing gun laws. Those that use guns illegally will not turn in their guns or respond to any other "responsible gun laws." It's like spanking all your children because you can't determine which one committed the offense. Sounds good, accomplishes nothing. What really needs to happen is that we address the issues of mental health and finally determine to house and treat people with mental illness. That will do more than any legislation about guns. But maybe lawyers want more laws so they will have more people to defend in court. I'm all for anything that will stop the violence, but when I see these knee jerk solutions they make no sense. I'm open to be changed.
We need an intense focused national debate on the issue of Gun Control.[trb]
-----
[source]
[trb] & CAP’S
Terry Bankert
[1]
http://www.cbsnews.com/8301-250_162-57562942/bidens-meetings-spotlight-gun-control-divide/
[2]
http://bostonglobe.com/news/nation/2013/01/09/giffords-kelly-launch-gun-control-lobbying-effort/ZCMZlyQYtxTkwr5RMofykL/story.html
[3]
http://www.npr.org/2013/01/08/168889491/gun-control-advocates-say-atfs-hands-have-been-tied
Wednesday, December 22, 2010
LAPEER FATHER DENIED CHANGE OF CUSTODY
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: [] v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: []v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010 Sphere: Related Content
LAPEER FATHER DENIED CHANGE OF CUSTODY
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010) Sphere: Related Content
Sunday, November 14, 2010
WHAT IS MARITAL PROPERTY IN A DIVORCE
WHAT IS MARITAL PROEPRTY.
Every thing of economic value to a marriage—tangible or intangible property, job skills, educational degrees, future entitlements—may be viewed in some sense as a property interest.
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
THE FOLLOWING IS A PARTIAL SHOPPING LIST OF WHAT ARE MARITAL ASSEST.
A. Assets Earned During the Marriage
Assets earned by a spouse during the marriage are part of the marital estate. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2003).
B. Post Filing Acquisitions
Property to be received even after the divorce is marital property if the property was earned during the marriage. McNamara at 183.
C. Retirement Plans
Vested and unvested interests in retirement plans are marital property. MCL 552.18(1)–(2). In fact, MCL 552.101(4) requires that each judgment of divorce shall determine all rights of the parties as to all retirement plans. The Michigan Supreme Court agreed when it adopted MCR 3.211(B)(2).
D. Marital Home Appreciation
Appreciation in a marital home is considered a part of the marital estate:
The sharing and maintenance of a marital home affords both spouses an interest in any increase in its value (whether by equity payments or appreciation) over the term of the marriage. Such amount is clearly part of the marital estate. However, the down payment, the equity built up before the parties’ marriage, and any appreciation that occurred before the parties’ marriage should have been considered defendant’s separate estate. Reeves at 495–496.
As held by Reeves, where one party makes a down payment on a home from premarital (i.e. separate) assets, that down payment should be returned to the contributing spouse upon divorce as his/her separate property. Nonetheless, seemingly contrary to this rule, the Court of Appeals recently in Cunningham v Cunningham, ___ Mich App ___, ___ NW2d ___ (Docket No. 285541, decided 7/13/10), held that the husband’s contribution of $90,000 from his premarital worker’s compensation award toward the down payment on the marital home was sufficiently “commingled” with the marital estate so as to lose its character as separate property.[7]
E. Worker’s Compensation Benefits and Awards
Worker’s compensation benefits and awards are considered marital property subject to division. Petrie v Petrie, 41 Mich App 80, 84; 199 NW2d 673 (1972) (affirmed appointment of FOC to collect worker’s compensation award to pay alimony and child support per JOD); Evans v Evans, 98 Mich App 328, 330; 296 NW2d 248 (1980) (workers’ compensation proceeds received during the course of the marriage considered marital property subject to division); Smith v Smith, 113 Mich App 148, 151; 317 NW2d 324 (1982) (“Since the Worker’s Disability Compensation Act was promulgated to assist both the worker and her spouse, the trial court did not err when it included the compensation as part of the marital assets.”); Lee v Lee, 191 Mich App 73, 80; 477 NW2d 429 (1991) (workers’ compensation benefits properly included in the marital estate); and Hagen v Hagen, 202 Mich App 254, 258–260; 508 NW2d 196 (1993) (division of payments on workers’ compensation claim for injury that occurred during the marriage found proper).
However, as held recently in Cunningham, supra, ___ Mich App at 14–15:
Because a spouse’s earnings are classified as marital property only between the beginning and end of the marriage, see Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986), we hold that worker’s compensation benefits are to be considered marital property only to the extent that they compensate for wages lost during the marriage, i.e., between the beginning and end of the marriage. Any compensation benefits awarded for time periods before the marriage or after its dissolution are akin to a party’s individual earnings and are to be considered separate property, as those earnings fall outside the beginning and end of the marriage.
F. Retention Bonuses
A “retention bonus” paid to the husband during the marriage was held not to be divisible marital property where it was subject to forfeiture unless the husband remained employed until a date after the divorce. Skelly v Skelly, 286 Mich App 578, 780 NW2d 368 (2009). Reasoning that this “retention bonus” would not really be earned until after the divorce, the Court of Appeals reversed the trial court’s classification of this asset as marital property.
Practice Tip: It is important to distinguish a Skelly-type retention bonus, which was payable for remaining employed post divorce, from nonvested or deferred benefits that are intended as compensation for services during the marriage, which are divisible, but will be paid post-divorce.
G. Stock Options
Stock options are divisible marital assets. Everett v Everett, 195 Mich App 50; 489 NW2d 111 (1992).
H. Employee Stock Ownership Plans
Employee stock ownership plans (ESOP’s) are divisible marital assets. Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991). Even unvested rights in a stock/annuity plan are divisible. Vollmer v Vollmer, 187 Mich App 688, 690; 468 NW2d 236 (1990).
I. Vacation and Sick Time
Employee benefits must always be considered when identifying assets comprising the marital estate. “Banked” vacation and sick time can be divisible marital assets. The key is whether the employee will receive payment for the accumulated time if not used before retirement. Lesko v Lesko, 184 Mich App 395, 401–402; 457 NW2d 695 (1990).
Practice Tip: The Lesko decision points out that while these employee benefits are divisible marital assets, it is error not to reduce the value of these assets by considering the tax consequences associated with the receipt of these taxable assets.
J. Advanced Degrees
Where an advanced degree is the end product of a concerted family effort, involving the mutual sacrifice, effort, and contribution of both spouses, there arises a “marital asset” subject to distribution, wherein the interest of the nonstudent spouse consists of an “equitable claim” regarding the degree. However, an evaluation of the equitable claim does not include valuing the degree. Instead, the focus of an award involving an advanced degree is not to reimburse the nonstudent spouse for loss of expectations over what the degree might potentially have produced, but to reimburse that spouse for unrewarded sacrifices, efforts, and contributions toward attainment of the degree on the ground that it would be equitable to do so in view of the fact that the spouse will not be sharing in the fruits of the degree. Postema v Postema, 189 Mich App 89; 471 NW2d 912 (1991).
Practice Tip: In the same case, the court held that a nursing degree was not an advanced degree subject to the nonstudent spouse’s equitable claim. Postema at 108, citing Sullivan v Sullivan, 175 Mich App 508, 512; 438 NW2d 309 (1989). The undergraduate degree in Sullivan was a Bachelor of Arts degree.
K. Health Insurance Refund
A participant on the SBM—FLS[8] listserv asked whether a (large) refund from the parties’ group health insurer for medical costs paid over the course of a year for the family constituted a marital asset. The question is more properly framed as how would the refund check be characterized if it is not considered a marital asset. The check is not “income” for support purposes, and it is not separate property to the employee-spouse for the same reason retirement benefits are not separate property. The check is clearly a marital asset.
L. Employee Buyout
Another listserv participant inquired whether the proceeds of a General Motors 1-time employee buyout in the amount of $35,000.00 is a marital asset, where the employee-spouse has been working at GM for 28 years, and the marriage is only 6 years in duration. Once again, assuming the payout is not specifically deemed a replacement for future earnings, the check is clearly a marital asset. How the check is divided between the parties, in terms of the Sparks[9] factors, and coverture considerations (frequently utilized when dividing defined benefit plans under the deferred division method), is beyond the scope of this presentation
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
Thursday, June 3, 2010
Al Gore and Tipper Gore poster children for late stage divorce or separation by Flint Divorce Lawyer Terry Bankert 810-235-1970
Divorce Court headed Al Gore and his soon to be divorced wife Tipper Gore will soon be in their jurisdictions family court. These late stage baby boomer divorces are on the rise. Flint divorce attorney Terry Bankert a leading expert in Genesee County Michigan comments on Boomers and late stage divorce. For questions or immediate help contact Divorce Lawyer Terry Bankert 235-1970.
From the united States census the following data is forun on the divorcing seniot population.[2]
Year …..percentage of all adult identified as divorced persons …65 or older listed as divorced.
1990.…..9%……………………………….....................................5%………………………….
1995.…..9.1%………………………………..................................5.7%………………………..
2000.…..9.3%………………………………..................................6.7%………………………..
2005.…..9.7%………………………………..................................7.9%………………………..
There was no salacious sex scandal, no prostitution ring, no mysterious trip to Argentina.
Al and Tipper Gore are a famous political couple, but their split after 40 years of marriage apparently stemmed from a much simpler, more mundane cause, according to friends: They simply grew apart.[3]
And in that, experts say, they're no different from many Americans. Such late-marriage splits are much more common than we think.[3]
One probable factor could be the extreme stress of handling the empty nest syndrome together with post-retirement blues. These people had solely concentrated on their respective jobs and on being good parents to their children. In this process, they had forgotten to enjoy the company of each other. When left together in their old age, neither liked to spend time with the other. [1]
The population of divorced people over 65 has exploded in the past 15 years, and elder-law attorneys suspect money is at least partly to blame.[2]
The idea that money might be a factor in divorce isn't news. But instead of fighting over their money, these attorneys say, older people who divorce might be trying to preserve it.[2]
Al Gore may have a divorce attorney while Tipper Gore has her own Divorce lawyer. The Gores do have other options if the lived in Michigan. They can and probably will choose a private process where their possibly “collaborative law” legal counsel will forge a divorce judgment before a case is filed.
They may privately mediate instead of publicly litigating. Terry Bankert is a Flint based family Law mediator.
Al Gore and Tipper gore also have an option of not divorcing but entering into a separate maintenance agreement where they remain married but lead separate lives with their portion of the marital estate.
It's significant that Al and Tipper Gore married in 1970, notes Stephanie Coontz, author of "Marriage, A History," and professor of family studies at Evergreen State College in Olympia, Wash. Marriages in the late '60s and '70s are marked by higher divorce rates than those of later years, she says. Why? Partly because people still married very young. (Tipper Gore was 21 and Al Gore 22 when they wed.)[4]
The two are now 61 and 62, with decades of health, seemingly, ahead of them. "The idea used to be that by our sixties, life was pretty much over anyway," says Coontz. "But today, people who reach 65 are likely to have another 20 years ahead. So it makes the calculus of living in an unhappy marriage even harder to take."[3]
The Gores' announcement
Break-ups among long-term married couples -- who have invested 30, 40 or more years into a relationship -- is an uncommon phenomenon compared to the skyrocketing divorce rates among naive newlyweds or parents overwhelmed with children, marriage experts say. But the number of long-term relationships headed toward separation -- like the Gores -- is becoming more frequent with longer life spans and a growing acceptability of divorce, they say.[5]
"Staying in exactly the right relationship to one another is a very hard thing to maintain every decade," said Pepper Schwartz, professor of sociology at the University of Washington. "People think you only get closer over time, but that's not necessarily true."[5]
These late stage baby boomer divorces are on the rise. Why? What are the effects on women and men of late stage divorce.
DO MEDICAL INSURANCE AND GOVERNMENTAL RULE PROMOTE ELDER DIVORCE?
One article talks about an Ohio divorce.
Christine Crawford of Aurora, Ohio, started divorce proceedings after her husband's care for dementia consumed more than $100,000 of their savings.[2]
Crawford said she didn't want to divorce her husband, with whom she'd raised three children, but it was the only way to preserve what was left of their life savings.[2]
Emotional Well-Being [1]
When older people get divorced, its effects are varied on men and women. Older men are often dependants. They are more prone to sickness and their spouse nurtures them back to health. After divorce they are badly affected. They not only miss having a partner, they also lose a responsible caregiver. [1]
Divorced women, however, fare better for they feel freer. Having spent lots of time and energy taking care of their husbands, their post-divorce phase is marked with higher energy levels and more leisure time. [1]
Family and Social Relationships [1]
It is a generally held concept that old and divorced people are unable to extend the required support to their adult children. But, this belief presents only one side of the picture. Majority of the older divorced women had been working. After divorce and retirement they gain more time which they spend with their children. Divorced women are more close to their children. [1]
Only men tend to isolate themselves in the post-divorce period. [1]
Financial Problems [1]
Older women, however, face a major handicap after divorce. They are plagued with financial problems. In the pre-divorce period much of their financial needs were met by their husband. Divorce changes the picture. [1]
Trapped by aid-program rules
To understand why Crawford , mentioned above, faced such a wrenching decision, you need to understand some background:
Medicare, the government insurance program for people 65 and over, doesn't cover long nursing-home stays. [4]
But Medicaid, the federal health program for the poor that does cover such care, generally requires people to exhaust their financialresources before they can qualify for help.[4]
Elders who face the potentially devastating cost of nursing home care frequently look for assistance with “Medicaid planning”—the process by which assets may be sheltered in order to qualify for Medicaid assistance. [6]
When a married person applies for nursing home based Medicaid assistance, the assets of both husband and wife are considered resources. [6]
This is true regardless of how the assets are titled and regardless of whether there is a valid ante nuptial agreement in place.[6]
Unless they are both in the nursing home (in which case they are each treated individually).[6]
Accordingly, a divorce can be one method of “Medicaid planning”—but rarely the best.[6]
Medicaid rules allow much greater asset protections for married persons than single persons.[6]
To qualify, a single person can only have $2,000 of countable assets.[6]
A married couple can keep up to $100,000 of countable assets.[6]
In addition, assets in excess of the so-called “protected spousal amount” can be sheltered through special spousal trusts, or by court orders.[6]
In addition, it may be possible to protect the combined income of the spouse’s for the needs of the non-nursing home spouse.[6]
Divorce as a Medicaid planning option.[6]
Clearly, the most common cases in which divorce is considered as a planning option are second marriage cases, and especially those of short duration.[6]
The critical issue in these cases, in deciding whether divorce or remaining married will provide the “best result” will often be the extent to which the representatives of the two family groups can trust one another. This is the case because the best methods for protecting assets of a spouse in the nursing home involves transferring assets to the non-nursing home spouse, or into a trust for the benefit of the non-nursing home spouse, and giving that non-nursing home spouse the ability to redirect where those assets will go upon his/her death.[6]
Where the nursing home spouse is under age 65, the additional option of a “Medicaid Payback Special Needs Trust” provides another planning tool that can alleviate some of these issues in some cases[6]
When one spouse gets sick, many married couples face the uncomfortable prospect of having to "spend down" most of their assets to qualify for medicaid,leaving little for the healthy spouse to live on. [2]
Women have consistently earned lesser than men and had many career breaks for child rearing. Quite frequently, they draw no pension after retirement. In the UK just 13% of the women qualify for the basic state pension compared to 92% of the men (The pension amount in itself is too small to survive solely on.). Divorce in this age compounds financial problems for the women. [1]
If this disparity in pension levels continues, future older and divorced women will also be facing plenty of financial problems. [1]
Other causes of divorces
There are doubtless other contributing factors to the rise in the number of divorced folks over 65:
Some of the increase could simply be fallout from the overall rise in divorces. The older a woman is when her marriage dissolves, the less likely she is to remarry. By age 65, women outnumber men, and the disproportion rises as we age.
Other financial factors can also discourage remarriage. A divorced person who receives social security based on an ex's work record could lose those benefits if he or she remarries. Affluent older people may be disinclined to marry if they're concerned about entangling their finances with another person's, or about the extra estate planning that would be necessary to ensure that their kids, rather than their potential new spouse or the spouse's kids, get any future inheritances.[2]
But many people, especially women, emerge from busy child-rearing years with time to re-evaluate their lives and their partners, said Barbara Waxman, an executive and life coach with San Francisco's Odyssey Group who has a master's degree in gerontology.[2]
Rising up to the Challenges Posed by Divorce [1]
Men and women cope differently with divorce. [1]
Work and Health Issues [1]
Women are healthier in the post-divorce period. Being the basic and primary caregivers all through their life, they know how to care well for themselves. They enjoy better health and live longer. [1]
Divorced men rarely know how to manage daily life. Generally, they are not as good as women at house work. They care neither for a notorious diet nor for the upkeep of cleanliness. Lack of nutritious diet coupled with the grief of divorce leaves them badly affected. [1]
Divorce and Loneliness [1]
Divorce leads older men to loneliness. Rather than forming fresh social contacts, they gravitate towards alcohol for relief. With deteriorating social life, substance abuse increases and soon damages their health. And this cycle of deterioration continues. [1]
Women are not lonely. In fact, their social life improves in the post-divorce period while it deteriorates for the men. [1]
Loneliness and Depression [1]
The loneliness these men experience is severe and leads them to depression. Studies indicate that the life span of men who are divorced in their late 50s is reduced by a decade. Divorce affects them so badly. Older divorced men are more prone to an early death compared to widowers. [1]
Aged and divorced women form support groups and help one another. This comradeship is lacking in men. Men rarely venture out and mix with other people. [1]
These differences in circumstances are partly responsible for older women turning divorce initiators. Men rarely initiate these proceedings in their old age. Women cope better with divorce, care for themselves well and are comparatively healthy. The only problem they face is in the financial realm. In other words, divorce in old age affects the emotional well-being of men and the financial well-being of women. [1]
Elder-law attorneys suspect that's among the reasons the proportion of people over 65 who list their marital status as "divorced" has risen nearly 60% since 1990, compared with an 8% rise in the proportion of divorced adults overall.[2]
The attorneys fear the trend may accelerate in coming years, at least in some states, because of changes in Medicaid laws that make it tougher to qualify.[2]
Other issues divorcing late stage baby boomers may have are ;Spousal support, Grandparents rights,
Guardianship, Minor children, Child custody, Child support, pension division, asset division, debt division and health care.
Posted here by baby Boomer attorney
Terry Bankert 1-810-235-1970
http://attorneybankert.com
Or http://dumpmyspouse.com
See:
[1]
http://www.articlecity.com/articles/relationships/article_1426.shtml
[2]
http://articles.moneycentral.msn.com/CollegeAndFamily/CaringForParents/ShouldGrandmaDivorceGrandpa.aspx
[3]
http://www.google.com/hostednews/ap/article/ALeqM5iPr5gSYc1Y_p9rJG0wkYWKADz_AQD9G3C1C82
[4]
http://www.sandiegoreader.com/news/2010/jun/02/cover/
[5]
http://www.cnn.com/2010/LIVING/06/02/al.gore.separation.40years.marriage/?hpt=Sbin
[6]
ICLE 5th Annual family Law Institute seminar “ When Senior Citizens seek Divorce” by Douglas G Chalgian, East Lansing MI 11/16/06 Presented