By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html
Do you need help now? Call 810 235-1970 !
PARENTING TIME ENFORCEMENT
It is presumed that it is in the best interests of the child to have a strong relationship with both parents. The child has a right to this parenting time.
When there are court orders the non custodial parent has the same rights to parenting time that the custodial parent has to support. Each parent should expect the Friend of the Court and the Judge to cause these orders to be complied with. The Friend of the Court office works for you. Contact your case workers and ask for enforcement assistance.
Generally a parent has the right to reasonably visit or parent their children unless the court has modified that right. Grandparents have some rights to parenting time also. Usually if restricted parenting time will be based on the court finding it is in the Best interest of the Children. Parenting time varies from order to order because the circumstances of children differ. You have a right to ask for specific parenting time.
A parents right to contact with their children is a fundamental right protected by the 1st, 9th, and 14th amendment to the United States Constitution. We want parents to maintain strong relationships between parents and children so parenting time is ordered. An award of reasonable parenting time presumes that the parents in spite of personal differences are still capable of dealing with each other in a mature manner.
If there is possibility of problems the order should specify time , place and circumstances of the parenting time.
The general rule is that the duty to support children exists separately from the right to visit, those children.
Child support and parenting time orders are not for the parents. These orders are to enhance the needs of the children and to meet the emotional needs of the children. Both needs are equally important. Parenting time is not a purchased commodity.
In 722.27a Parenting time, the law says :
(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 a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time....
(3) A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health....
(6) The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent's intent to retain or conceal the child from the other parent.
(i) Any other relevant factors.
(7) Parenting time shall be granted in specific terms if requested by either party at any time.
In a case called Pickering 268 Mich App1 (2005) There were two minor children in a 5 year marraige. Mom was the primary care giver, dad was the primary wage earner and retired on disability. At a court hearing to clarity a judgement he asked the court verbally for specific parenting time which was denied with the explaination he was too late. The court of appeals ordered the lower court to enter a specific parenting time order because it can be asked for at any time.
(8) 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:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during parenting time.
(d) Requirements that the child be ready for parenting time at a specific time.
(e) Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of a third person or agency.
(g) Requirements that a party post a bond to assure compliance with a parenting time order.
(h) Requirements of reasonable notice when parenting time will not occur.
(i) Any other reasonable condition determined to be appropriate in the particular case.
(9) During the time a child is with a parent to whom parenting time has been awarded, that parent shall decide all routine matters concerning the child....
WHERE CAN YOU GO FOR HELP?
Prosecuting Attorney
Each county has a prosecuting attorney. The prosecuting attorney’s office can assist you with:
Obtaining a court order to establish paternity
Obtaining court orders for custody, support, and parenting time
Locating a parent
For referral to a prosecuting attorney for child support services, contact the support specialist in your local DHS office.
http://www.michiganprosecutor.org/PA-list.htm
Friend of the Court
The friend of the court’s office can assist you with:
Investigating and making recommendations regarding custody, parenting time, and support
Enforcing custody, parenting time, and support orders
Modifying custody, parenting time, and support orders
Registering Michigan orders in other states
Initiating income withholding orders, including interstate
Resolving collection problems
Providing alternative dispute resolution through mediation programs
Locating a parent
Most counties have their own friend of the court, but in some circuit courts, multiple counties participate in one friend of the court. You will find a phone listing for the friend of the court in the "Government" section of your phone directory, under County Government. For more information on the friends of the court, visit the Michigan Friend of the Court page on the Michigan Courts website at http://courts.michigan.gov/scao/services/focb/focb_over.htm
Because the friends of the court are based in the circuit courts, the Supreme Court’s State Court Administrative Office is also involved with program operations. You can visit the State Court Administrative Office page on the Michigan Courts website at http://www.courts.michigan.gov/scao/
In MCl552.601 the law also says:
1) If the office of the friend of the court determines that a procedure for resolving a parenting time dispute authorized under section 41 other than a civil contempt proceeding is unsuccessful in resolving a parenting time dispute, the office of the friend of the court shall commence a civil contempt proceeding to resolve a dispute concerning parenting time with a minor child by filing with the circuit court a petition for an order to show cause why either parent who has violated a parenting time order should not be held in contempt. The office of the friend of the court shall notify the parent who is the subject of the petition. The notice shall include at least all of the following:
(a) A list of each possible sanction if the parent is found in contempt.
(b) The right of the parent to a hearing on a proposed modification of parenting time if
requested within 21 days after the date of the notice, as provided in section 45.
(2) If the court finds that either parent has violated a parenting time order without good cause, the court shall find that parent in contempt and may do 1 or more of the following:
(a) Require additional terms and conditions consistent with the court's parenting time order.
(b) After notice to both parties and a hearing, if requested by a party, on a proposed modification of parenting time, modify the parenting time order to meet the best interests of the child.
(c) Order that makeup parenting time be provided for the wrongfully denied parent to take the place of wrongfully denied parenting time.
(d) Order the parent to pay a fine of not more than $100.00.
(e) Commit the parent to the county jail.
(f) Commit the parent to the county jail with the privilege of leaving the jail during the hours the court determines necessary, and under the supervision the court considers necessary, for the purpose of allowing the parent to go to and return from his or her place of employment.
(g) If the parent holds an occupational license, driver's license, or recreational or sporting
license, condition the suspension of the license, or any combination of the licenses, upon noncompliance with an order for makeup and ongoing parenting time.
(h) If available within the court's jurisdiction, order the parent to participate in a community corrections program established as provided in the community corrections act, 1988 PA 511, MCL 791.401 to 791.414.
(3) The court shall state on the record the reason the court is not ordering a sanction listed in subsection (2)(a) to (h). For the purpose of subsection (2), "good cause" includes, but is not limited to, consideration of the safety of a child or party who is governed by the parenting time order.
(4) A commitment under subsection (2)(e) or (f) shall not exceed 45 days for the first finding of contempt or 90 days for each subsequent finding of contempt. A parent committed under subsection (2)(e) or (f) shall be released if the court has reasonable cause to believe that the parent will comply with the parenting time order.
(5) If a parent fails to appear in response to an order to show cause, the court may issue a bench warrant requiring that the parent be brought before the court without unnecessary delay to show cause why the parent should not be held in contempt. Except for good cause shown on the record, the court shall further order the parent to pay the costs of the hearing, the issuance of the warrant, the arrest, and further hearings, which costs shall be transmitted to the county treasurer for distribution as provided in section 31.
(6) If the court finds that a party to a parenting time dispute has acted in bad faith, the court shall order the party to pay a sanction of not more than $250.00 for the first time the party is found to have acted in bad faith, not more than $500.00 for the second time, and not more than $1,000.00 for the third or a subsequent time. A sanction ordered under this subsection shall be deposited in the friend of the court fund created in section 2530 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2530, and shall be used to fund services that are not title IV-D services.
(7) A fine ordered under subsection (2), costs ordered under subsection (5), or a sanction ordered under subsection (6) becomes a judgment at the time they are ordered.
(8) If the court finds that a party to a parenting time dispute has acted in bad faith, the court shall order the party to pay the other party's costs.
*******
By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html
Do you need help now? Call 810 235-1970 !
Wednesday, October 25, 2006
Monday, October 23, 2006
#15 Paternity
By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html
Do you need help now? Call 810 235-1970 !
"Paternity" refers to the legal establishment of who is the father of a child. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.
In Michigan the paternity of a child may be established in several ways.
1. During a divorce the matter may be litigated.
2.When the parties are not married an action may be brought for custody and support.
3. Parents may sign an affidavit of parentage after a birth and father may file a notice of intent to claim paternity before a marriage. The State of Michigan may bring an action when mother receives public assistance.
The establishment of paternity under another states law has the same effect as a Michigan acknowledgement of parentage or order of filiation.
Putative fathers [dads not legally recognized yet] may not seek custody under the Child Custody Act of 1970 withour a prior acknowledgement of paternity or order of filiation. Dads cannot legally protect their rights to see their kids until this is done.
In a divorce action, the court has no authority to determine the paternity of a third party, although it may determine the husbands paternity rights if the court has jurisdiction. A finding of fact in a divorce decree that a child was born of the marraige bars relitigation of paternity even if the isue was not contested.
Paternity Actions in Court
An action to establish paternity is a civil proceeding properly filed in the Genesee County Family court. When the court finds the man to be the father of a child in question it orders what is called an order of filiation. A man with limited income has the right to counsel in a paternity action. If the court orders a test and the man does not comply the court can enter a default judgement against the man. Either party may demand a jury trial in a paternity action. If the court finds the man to be the father of the child an order of filiation is entered. Attorney fees, court costs may be awarded in paternity cases.
DNA Testing and Paternity
In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child's genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father's paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.
Establishing Paternity
DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or "alleged") father in a paternity action that is the basis for child support collection may require proof that he is the child's father before he consents to payment of support. In other cases, the mother may contest the putative father's paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.
Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child's mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.
In a recent case called Barnes v Jendevine , 475 Mich 696 (7/26/2006) a dad asked the court to determine that he was the dad of a child where he had an affidavit of parentage and his name was on the childs birth certificate but the child was conceived before mom finalized her divorce. The court concluded that the child was born or conceived during a marriage and there was no court decision that the child was not of the marriage. Dad therefore did not have a right to go to court to seek paternity and parenting time.
Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer
By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USAhttp://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.htmlDo you need help now?
Call 810 235-1970 !
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html
Do you need help now? Call 810 235-1970 !
"Paternity" refers to the legal establishment of who is the father of a child. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.
In Michigan the paternity of a child may be established in several ways.
1. During a divorce the matter may be litigated.
2.When the parties are not married an action may be brought for custody and support.
3. Parents may sign an affidavit of parentage after a birth and father may file a notice of intent to claim paternity before a marriage. The State of Michigan may bring an action when mother receives public assistance.
The establishment of paternity under another states law has the same effect as a Michigan acknowledgement of parentage or order of filiation.
Putative fathers [dads not legally recognized yet] may not seek custody under the Child Custody Act of 1970 withour a prior acknowledgement of paternity or order of filiation. Dads cannot legally protect their rights to see their kids until this is done.
In a divorce action, the court has no authority to determine the paternity of a third party, although it may determine the husbands paternity rights if the court has jurisdiction. A finding of fact in a divorce decree that a child was born of the marraige bars relitigation of paternity even if the isue was not contested.
Paternity Actions in Court
An action to establish paternity is a civil proceeding properly filed in the Genesee County Family court. When the court finds the man to be the father of a child in question it orders what is called an order of filiation. A man with limited income has the right to counsel in a paternity action. If the court orders a test and the man does not comply the court can enter a default judgement against the man. Either party may demand a jury trial in a paternity action. If the court finds the man to be the father of the child an order of filiation is entered. Attorney fees, court costs may be awarded in paternity cases.
DNA Testing and Paternity
In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child's genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father's paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.
Establishing Paternity
DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or "alleged") father in a paternity action that is the basis for child support collection may require proof that he is the child's father before he consents to payment of support. In other cases, the mother may contest the putative father's paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.
Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child's mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.
In a recent case called Barnes v Jendevine , 475 Mich 696 (7/26/2006) a dad asked the court to determine that he was the dad of a child where he had an affidavit of parentage and his name was on the childs birth certificate but the child was conceived before mom finalized her divorce. The court concluded that the child was born or conceived during a marriage and there was no court decision that the child was not of the marriage. Dad therefore did not have a right to go to court to seek paternity and parenting time.
Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer
By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.http://terrybankert.blogspot.com/
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USAhttp://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.htmlDo you need help now?
Call 810 235-1970 !
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