Judge calls Trial a "B" movie!

Good Morning Flint!
By Terry Bankert
9/30/2009
　
Judge call trial a “B” movie.

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 The Michigan Court of Appeals issued an unpublished Opinion on 9/17/09 where it upheld the lower court ruling.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

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

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

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

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

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

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

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

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

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

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

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

(a) The love, affection, and other emotional ties existing between the parties
involved and the child.

(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home
or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child
custody dispute. [MCL 722.23.]

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

However, “[a] court need not give equal weight to all the factors, but may consider the relative weight of the factors as appropriate to the circumstances.” Id. at 184.
　
In this case rather than make a judgment regarding which parent was a better human being, the trial court determined that the children would be better off maintaining an equal relationship with both, and that this would provide the stability recommended by the doctors.

Therefore, the trial court awarded joint custody.

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

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

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

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

Posted here by
Terry Bankert
　

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MOM GETS TO MOVE 200 MILES, DAD DRIVE 12 HRS TO SEE HIS KIDS ON WEEKEND IN HIS HOME!

GOOD MORING FLINT!
9/28/09
by Terry Bankert
http://www.flintfamilylaw.com/

CAN YOU BELIVE THIS, DAD ACTIVE IN CHILDS LIFE CANNOT STOP MOM FROM MOVING 200 MILES AWAY!


Hot off the Press,
WHO YOU ELECTED TO BE A JUDGE DOES AFFECT YOUR LOVED ONES LIVES!

Flint Divorce Attorney Terry Bankert reviews a 9/17/09 unpublished opinion of the Michigan Court of Appeals. Flint Lawyer Terry Bankert practices Family Law in Genesee County Flint Michigan dealing often with the issues of change of domicile and custodial environment.

Here we discuss a case where Father Defendant appeals as is his right an order of a local court granting a motion for change of domicile , OVER 200 MILES,in favor of Mother Plaintiff.The local order permitted mother/plaintiff to move from Utica, Michigan to Wellston, Michigan with the parties’ minor child.

The Michigan Court of Appeals said the local court got it right.

HOW FAR IS MOM MOVING THE KIDS FROM DAD?

If Michigan were your left hand A move from Utica Michigan to Wellston Michigan would be from the base of your left thumb to the base of your little finger.This move by a Yahoo Map is 218.60 miles, A 3.34 hr drive.

To test for distance in court use a straight line.

To take his kids to his home for the weekend assuming dad is responsible for all driving he spends 12 hours in the car the kids would spend 6.

Think about it. If you were dad and had been active with your kids during and after school and regularly took them to visit with your family locally could you keep it up with this drive? The Michigan Court of Appeals would say YES!

What does common sense say?

If dad had been move acvtive in the childs life the outcome for him may have been different.

The local court also found that the mother and father had conducted themselves in a way in which the mother primarily had physical custody.　

Although testimony indicated that the child looked to father for his needs while inFathers care and there were periods of time where fathers time with the child was more than what was scheduled, father can point to no testimony establishing that the child also looked to him for guidance, discipline, and parental comfort on a day-to-day basis.

THE FATHER AND CHILD relationship does not have the characteristic of permanence and stability that is emblematic of an established custodial environment.

HERES A 10 DOLLAR WORD!

emblematicemblematical, #"/definition/symbolic"symbolic, # "/definition/symbolical"symbolicalserving as a visible symbol for something abstract; "a crown is emblematic of royalty"; "the spinning wheel was as symbolic of colonical Massachusetts as the codfish" emblematic, exemplary, typicbeing or serving as an illustration of a type; "the free discussion that is emblematic of democracy"; "an action exemplary of his conduct";　　

FAMILY LAW ISSUES

1.Change of minor child's domicile; MCL 722.31(4);

2.Whether the child had an established custodial environment with both parties; Foskett v. Foskett; Rittershaus v. Rittershaus; Mogle v. Scriver; MCL 722.27(1)(c); Baker v. Baker; MCL 722.28; Berger v. Berger; Phillips v. Jordan

MICHIGAN COURT OF APPEALSCourt: Michigan Court of Appeals (Unpublished),September 17, 2009,v No. 291045Macomb Circuit Court,LC No. 2002-002204-DS,Case Name: Avouris v. Rasa,e-Journal Number: 43790,Judge(s): Per Curiam - Sawyer, Cavanagh, and Hoekstra[This opinion has been modified for presentation-TRB 9/29/09]

THE LOCAL COURT GOT IT RIGHT ON CUSTODIAL ENVIRONMENT

The trial court's finding the parties' minor child's established custodial environment was solely with the plaintiff-mother was not against the great weight of the evidence, and it did not abuse its discretion in ruling a change of domicile within the state was warranted under MCL 722.31(4).

A MOVE DISRUPTING PARENTING TIME COULD DISRUPT THE CUSTODIAL ENVIRONMENT

Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence. Sinicropi v Mazurek, 273 Mich App 149, 178;729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).

WAS THERE JOINT CUSTODY?

DID THE MOVE CHANGE THE CUSTODIAL ENVIRONMENT?

IF YES THEN MOM NEEDED TO SHOW BY CLEAR AND CONVINCING EVIDENCE .

“[T]he trial court is not required to consider the best-interest factors until it first determines thatthe [domicile] modification actually changes the children’s established custodial environment.”Rittershaus v Rittershaus, 273 Mich App 462, 470-471; 730 NW2d 262 (2007).

HERE MOM ONLY HAD TO MAKE HER CASE BY THE LOWER STANDARD OF PREPONDERANCE OF THE EVIDENCE.

Where the change in domicile will not affect the established custodial environment, the moving party has only “the burden of establishing by a preponderance of the evidence that the change in domicile is warranted.” Mogle v Scriver, 241 Mich App 192, 203; 614 NW2d 696 (2000).

DAD LOST THE JOINT CUSTODY ARGUMENT

The defendant-father argued the trial court should have required plaintiff to show the change in domicile was in the child's best interests by clear and convincing evidence because he had an established custodial environment with both parties, and challenged the trial court's findings on the factors in MCL 722.31(4)(a)-(c).

The parties in this case had joint custody of the child, but plaintiff, the child’s mother,had full physical custody.

The trial court found that an established custodial environment only existed with plaintiff. Defendant argues that this finding was against the great weight of the evidence.

He contends that the child had an established custodial environment with him as well,and because of this the trial court clearly erred by not requiring plaintiff to show by clear and convincing evidence that the change in domicile was in the child’s best interests.

This argument requires a review of whether the trial court’s finding that there was not an established custodial environment with defendant was against the great weight of the evidence.

MCL 722.27(1)(c) provides:

The custodial environment of a child is established if over an appreciable time thechild naturally looks to the custodian in that environment for guidance, discipline,the necessities of life, and parental comfort.

The age of the child, the physicalenvironment, and the inclination of the custodian and the child as to permanencyof the relationship shall also be considered.

Whether an established custodial environment exists is a question of fact. Foskett, supra at 8.

An established custodial environment can exist with both parents, even if the child’s primary residence is with one parent and the same parent provides most of the financial support for the child. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000).

Further, an established custodial environment is one of significant duration, both physical and psychological, “in which the relationship between the custodian and child is marked by security, stability and permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981)

Here the court looked for characteristic of permanence and stability that is emblematic of an established custodial environment. Mother plaintiff only needed to prove that the change in domicile was warranted by a preponderance of the evidence.　

In determining the child's established custodial environment was with plaintiff, the trial court noted he primarily lived with plaintiff and attended school from her home.

The trial court found while both parties participated in the child's school life and attended doctor's appointments, they conducted themselves in a way in which plaintiff primarily had physical custody.

While testimony indicated the child looked to defendant for his needs when he was in his care and there were periods where his time with the child was more than what was scheduled, defendant could not point to testimony showing the child also looked to him for discipline, guidance, and parental comfort on a day-to-day basis.

The court concluded their relationship did "not have the characteristic of permanence and stability that is emblematic of an established custodial environment."

When a parent petitions the court to change the legal residence of the child to alocation that is more than 100 miles from the child’s legal residence, the trial court must consider the following factors, set forth in MCL 722.31(4), before permitting the change:

(a) Whether the legal residence change has the capacity to improve the quality oflife for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or hertime under, a court order governing parenting time with the child, and whether theparent's plan to change the child's legal residence is inspired by that parent'sdesire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legalresidence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.

(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.

(e) Domestic violence, regardless of whether the violence was directed against orwitnessed by the child.　The court also held there was evidentiary support for the trial court's findings the move would have the capacity to improve the quality of life for the child and plaintiff, and defendant would be able to foster and preserve a relationship with him.

The trial court based its finding on MCL 722.31(4)(a) on plaintiff's planned marriage to her fiancé, who lived in the city to which she sought to change the child's domicile, and on her new employment, after she was unable to find suitable employment in the area where she currently lived.As to MCL 722.31(4)(b) and (c), the court concluded the evidence also supported the trial court's findings both parties had complied with the scheduling order and given their past cooperation related to parenting time, they would comply with the modified parenting time order.

The Michigan Court of Appeals Affirmed or agreed with the local court.

Posted here by Terry Bankert a Flint divorce lawyer. This case has been modified for presentation.9/28/09

http://www.attorneybankert.com/

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Thank You Michael Moore

Michael Moore has international recognition through his video art of causing us to relook and rethink the life swiring around us. Mr. Moore Thank You for bringing your new movie to Flint and giving the unemployed the opportunity to see it today for free. Best wishes and Thank You for what you do. Terry Bankert, 9/27/09

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