GMF 12/28/07

GOOD MORNING FLINT!
By Terry Bankert
12/28/07
http://attorneybankert.com/



Posted to Flint Talk
and Terry Ray Bankert P.C.
http://terrybankert.blogspot.com/

This the substance of a Michigan Court of Appeals case modified for media presentation. Do not rely on this without consulting the original document.http://www.michbar.org/e-journal/121807.html#6 -trb
Issues:

A .Custody; Modification of a prior out-of-state custody order regarding the plaintiff-father’s two minor children; MCL 722.27;

B. Whether a change of circumstances was established; Vodvarka v. Grasmeyer; Remand for an evidentiary hearing on the children’s best interests; Heltzel v. Heltzel; Mason v. Simmons; C.
Court: Michigan Court of Appeals (Unpublished), 12/11/2007
Case Name: Yv. Y

Ingham Circuit Court, NO.07-000663-DC

e-Journal Number: 37869 State Bar of Michigan electronic Journal.
see:http://www.michbar.org/e-journal/121807.html#6

Judge(s): Per Curiam – Davis, Murphy, and Servitto

The Michigan Court of Appeals court reversed the Ingham County Circuit Court’s order dismissing the plaintiff-father’s complaint to modify a prior out-of-state custody order regarding his two minor children, concluding a change of circumstances was established and he was entitled to remand for an evidentiary hearing on the children’s best interests. Dad had cleaned himself up from a significant drug abuse history.

3RD PARTY CUSTODY PARENTING TIME

Defendant was plaintiff’s sister. In March 2001, a Minnesota family court entered an order finding the children were in need of protection or services, plaintiff requested the defendant take custody of them, and he would not be able to care for them in the foreseeable future due to chemical dependency issues. This would have been a child protectives services action that could have ended with a termination of his parental rights.

MOM DECEASED

The children’s mother was deceased. The order gave defendant legal and physical custody of the children, and provided plaintiff with the right of reasonable visitation under supervised conditions. Plaintiff relocated to Michigan to be closer to the children and to exercise visitation.

DAD TRIED TO CHANGE CUSTODY FROM SISTER.

He unsuccessfully filed a petition to change custody in the Michigan trial court in February 2006. In March 2007, he filed a new complaint for custody. The trial court found a failure to show proper cause or a change of circumstances. Plaintiff asserted he had overcome his chemical dependency problems, and the trial court apparently accepted this claim. Plaintiff’s chemical dependency was the main reason for the proceedings in Minnesota and his request for defendant to take custody of the children.

Y has issues See:http://www.michbar.org/e-journal/121807.html#6

Thus, his "actions, efforts, and success in overcoming the dependency and becoming clean and sober" constituted a "significant change of circumstances, satisfying the threshold under MCL 722.27(1)©)." Under the circumstances, plaintiff’s sobriety was relevant to the children’s best interests. Directing the trial court on remand to follow and apply Heltzel, the court also deemed it appropriate to reassign the case to a different judge to preserve the appearance of justice. Reversed and remanded for an evidentiary hearing on the children’s best interests before a different judge.

DAD 5 YEARS SOBER!

Plaintiff, who claimed that he was drug and alcohol free since his release from a chemical dependency program. he had been clean and sober for five years.

LOWER COURT SAID SISTER COULD KEEP THE CHILDREN.

The trial court issuing an order that there "is no material change in circumstance
nor proper cause to establish a reason to have an evidentiary hearing to decide the best interestsfactors after six (6) years of custody as a result of plaintiff’s abandonment of the children to defendant."

DAD TRIED TO ARGUE PARENTAL PRESUMPTION BUT COULD NOT.

The court also ruled that the parental presumption under MCL 722.25(1) did not
apply and was not implicated, given that plaintiff failed to show proper cause or a change of
circumstances.

DAD HAD CLEANED HIMSELF UP AND COULD HAVE PARENTING TIME

The trial court did award plaintiff unsupervised parenting time, commenting that "nobody appears to have any problems with his ability to provide visitation or care overnight."

HOW ARE LOWER COURT DECISIONS ANALYZED

Findings of fact in custody cases are reviewed under the great weight of the evidence
standard, discretionary decisions such as custody dispositions are reviewed for an abuse of
discretion, and questions of law are reviewed for clear legal error. MCL 722.28; Thompson v
Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004), quoting Phillips v Jordan, 241 Mich
App 17, 20; 614 NW2d 183 (2000).

LAW OF CHANGE IN CUSTODY

MCL 722.27 provides (1) If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following, AND ©) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . . The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the child. [Emphasis added.]

THE CHANGE MUST OCCUR AFTER THE ENTRY OF THE LAST ORDER

A change of circumstances is established by proving that "since the entry of the last
custody order, the conditions surrounding custody of the child, which have or could have a
significant effect on the child’s well-being, have materially changed." Vodvarka v Grasmeyer,
259 Mich App 499, 513; 675 NW2d 847 (2003) (emphasis in original). Something more than
normal life changes that occur during a child’s life must be shown. Id.

PREPONDERANCE OF THE EVIDENCE

Proper cause is shown by proving by a preponderance of the evidence that an appropriate ground for legal action to be taken by the trial court exists. Id. at 512.

PREPONDERANCE
Defenition. Evidence which ig greater in weight or more convincing than the evidence that is offered in opposition to it. Evidence that shows at a whole that the fact sough to be proved is more probable than not. (Blacks Law Dictionary 5th edition)

"The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well being." Id.

NO PREPONDERANCE NO HEARING

If proper cause or a change of circumstances is not established, the court is precluded from holding a child custody hearing to determine the child’s best interests. Id. at 508.

A PARENT CLEANING THEMSELVES UP IS ENOUGH.

To rule otherwise would permanently close the door to custody relative to parents who have earnestly straightened out their lives after earlier parental failures. Accordingly, plaintiff is entitled to an evidentiary hearing on the best interests of the
children.

A PARENTS FUNDAMENTAL LIBERTY INTERESTS

The comprehensive scheme set forth in the Child Custody Act permits
consideration of both the natural parent's fundamental liberty right to raise a child
and a child's need for stability in determining the ultimate issue of the child's best
interests. When the statutory presumption in favor of parental custody and the
presumption in favor of the established custodial environment conflict, due
process requires that the presumption remain in favor of custody with the parent
in the absence of a showing of parental unfitness. Heltzel, supra at 23-24, 27-28.

THE SISTER COULD HAVE REBUTTED THE PARENTAL PRESUMPTION

The best interests of the child are presumed to be served by granting custody to
the parent, and that presumption must be weighed heavily in favor of the parent.
To rebut the presumption, the third party must show by clear and convincing
evidence that the best interests of the child require maintaining the established
custodial environment. Id.

DAD GOT HIS HEARING ORDERED! Results unknown!

This article from
see http://www.michbar.org/e-journal/121807.html#6
CAP HEADLINES ATTRIBUTED TO Terry Bankert

Posted here by
Terry Bankert
http://attorneybankert.com/
Note that Y's counsel contacted me threatening a number of actions toward me affecting my free speech liberties. The case is public information. I am not a journalist as much as I welcome a fight I will give this appeasment replacing his name with "Y "to him. Why, cost benefit analysis and I do not know what happened at the final hearing. -trb 5/26/08