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Court: Michigan Court of Appeals (Unpublished), 12/11/2007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

Stopping Domestic Violence

GOOD MORNING FLINT AND USA!
BY Terry Bankert 12/22/07
http://attorneybankert.com/
Summary posted to Flint Talk
Origional post to
http://terrybankert.blogspot.com/

Christmas is a horrible time for households that experience domestic violence.

A lone event of violence is a battery. Domestic violence is not just one event it is a pattern of physical, sexual, emotional, and/or financial abuse with the intent and result of establishing and maintaining control over an intimate partner.[DVBB1998]

Domestic violence can impact proceedings in all of Michigan courts..In whatever context it occurs domestic violence presents the court with unique safety concerns.[DVBB1998]

These safety concerns for the litigants arise from the intimate relationship of the victim and the perpetrator.
*A domestic violence perpetrator typically has unlimited access to the victim..they live together or have regular contact romantically or by the exercise of parenting time...known are the dailey routines and there is ready access to information about the victim and this persons whereabouts...
*[this happens]..by the exercise of a pattern of physical, social, psychological, and to economic control over the partners..Many abusers who perceive a loss of control over their partners will resort to physical violence to regain it..., the courts intervention have increase the potential for violence.
*Domestic violence occurs in the privacy of the home when the only witnesses re under the control of the abuser..see generally [DVBB1998]

In Flint/ Genesee County extreme cases of domestic violence, including homicides, could be put under the microscope by a special new team that would dissect the county's worst cases of family violence. [FJ12/23/07]

The YWCA of Flint is pushing to form a domestic violence fatalities review team five years after a state law allowed for creation of the groups. [FJ12/23/07]

400.1511 Interagency domestic violence fatality review team.
http://www.legislature.mi.gov/(S(wuizve2nvddfryfjo1chfufe))/mileg.aspx?page=getObject&objectName=mcl-400-1511
Sec. 11.
(1) The state or a county may establish an interagency domestic violence fatality review team..... The purpose of a team is to learn how to prevent domestic violence homicides and suicides by improving the response of individuals and agencies to domestic violence.
(2) The fatality review teams may review fatal and near-fatal incidents of domestic violence, including suicides. The review of a domestic violence incident may include a review of events leading up to the domestic violence incident, available community resources, current laws and policies, actions taken by the agencies and individuals related to the incident and the parties, and any other information considered relevant by the team....
(4) A fatality review team established under this section shall include, but is not limited to, the following:
(a) A health care professional with training and experience in responding to domestic violence.
(b) A medical examiner.
©) A prosecuting attorney or a designated assistant prosecuting attorney.
(d) A representative of a domestic violence shelter that receives funding from the Michigan domestic violence prevention and treatment board.
(e) A law enforcement officer.
Boosters of idea said the need may be stronger in Genesee County than anywhere else in Michigan because the rate of violence against women here has been among the highest in the state.[FJ12/23/07]

"There needs to be a better, more organized and focused approach to domestic violence " learning what the system has in place and where the gaps are," said Karen Folks, chief executive officer of the YWCA.[FJ12/23/07]

Folks said she has applied for funding for the review team from the Community Foundation of Greater Flint, and she and county Prosecutor David Leyton agree that something more is needed. A decision on the grant is expected next year. [FJ12/23/07]

The YWCA Safehouse, a shelter for women and their children, is used by about 600 women every year, and an analysis of district court records by The Flint Journal four years ago showed domestic assault is among the most common crimes in the county. [FJ12/23/07]

The same analysis showed cases were routinely dismissed and rarely went to trial here. [FJ12/23/07]

Folks said in her proposal that the team will identify patterns and trends in domestic violence-related fatalities, and identify risk factors and shortcomings in the system to improve future responses. [FJ12/23/07]

Leyton said he hasn't studied statistics on domestic violence cases countywide but believes family violence has been steady throughout the county.[FJ12/23/07]
The county prosecutor handles the most serious cases of domestic violence in Genesee Circuit Court and cases brought by Michigan State Police and the county sheriff. [FJ12/23/07]

"A lot of times (the cases) are accompanied by another crime," Leyton said. "Most homicides are the result of drugs or domestic violence. It's too common." [FJ12/23/07]

A 2002 state law allowed for the creation of county or multi-county death review teams to dig deeper into domestic violence fatalities, near fatalities and other serious incidents. [FJ12/23/07]

Folks said teams have been set up in Oakland and Macomb counties nearby. [FJ12/23/07]
Each year, intimate partner homicide happen in increasing numbers in our community. Mothers, fathers and children lose daughters, sons, mothers and fathers in unimaginable tragedy. The Macomb County Domestic Violence Fatality Review Team (MCDVFRT) concluded that more can be done to prevent domestic violence homicides. Domestic violence will end when communities say it will end and when complex, uncoordinated systems make homicide prevention a systemic priority.[MCCDV2006] see
MCL 400.1511


Domestic violence is a pattern of power and control in which one intimate partner seeks to dominate and control the other.

Violence is only one tool that is used by the battering partner.

Other tools include using cultural privileges, emotional abuse, withholding money, using the children and using the legal system. Because the criminal and civil legal systems are designed to address one problem on a given day, the pattern of domestic violence is often difficult for one system to ascertain.

Determinations of patterns that demonstrate a high risk of lethality (increased violence, stalking, abuse of pets, threats to kill, and other factors) are counterintuitive to the way most criminal and civil matters are handled. So much of what occurs is geared toward gathering evidence toward prosecution of a particular crime rather than capturing the intricacies of power and control throughout a relationship that even successful arrest and prosecution does not guarantee victim safety.

Homicide prevention requires an integrated systemic interagency response to hold the assailant accountable and make it practical for the victim to become safe. [MCCDV2006]


The MCDVFRT determined that there are four key system responses that are critical to victim safety: Law enforcement response, criminal justice system response, civil justice response and the response of community and victims services. Although all of the recommendations of the MCDVFRT are important, the following recommendations were determined by the MCDVFRT to be of particular note:

Key law enforcement response recommendations:

• Provide ongoing, coordinated, uniform and county- wide trainings for law enforcement officers who are most often the first responders at a domestic violence scene.

• Development and implementation of countywide, uniform policies regarding investigation and pursuit of perpetrators who flee the scene of a domestic assault.
Key criminal Justice System recommendations:

• Train judges to recognize lethality indicators and respond accordingly in the issuance of personal protection orders.

• Work to end gaps between systems, including insuring that probation is aware of violations that have occurred in other jurisdictions.
Key Civil Justice System recommendations:

• End Macomb County’s practice of assigning domestic violence related felonies to the same judge that hears the divorce action to insure that criminal actions are not seen as a "bargaining chip" in divorce actions.

• Work toward the development of a supervised visitation center for the safety of children and families.
Key Community and Victim Services recommendations:

• Educate the community through public service campaigns on the seriousness of domestic violence particularly when the victim is attempting to leave the relationship.

• Increase domestic violence prevention education in the early years and beyond. [MCCDV2006]

It is our hope that this report will spur conversation and motivate this community to come together toward the common goal of building a safe community. We invite all community members to the table as the Macomb Community Domestic Violence Council works to implement these recommendations. [MCCDV2006]

The following are further recommendations after a review of the public records:
a) Train judges to recognize lethality indicators and respond accordingly in the issuance of a personal protection order.
b) Judges should not issue personal protection order renewals that become less specific over time, if the condition exists as it did at the time of the original petition or the existence of the personal protection order itself is the cause of the cessation of violence. Judges should enter subsequent orders that reflect the original level of threat.
c) Insure that Probation and/or the district court issuing a no contact bond is notified of personal protection order violations.
d) Train District Judges and Magistrates to recognize lethality in setting bond conditions.
e) Insure that domestic violence bond conditions are issued pursuant to MCL 756.6(b); MCL 764.15(e). Bond conditions that comply with this statute are entered in LEIN and convey a warrant-less arrest authority to law enforcement.
f) Insure that the court has a mechanism to enter bond conditions ordered pursuant MCL 756.6(b); MCL 764.15(e) into LEIN.
g) Notify prosecution of personal protection order violations and insure that the Prosecutor has ability to call witnesses.
h) Insure that Probation is aware of violations that have occurred in other courts, create an instant communication system between district court and circuit court/probation/batterer intervention.
I) Judges should strongly consider ordering convicted abusers only to batterer intervention programs that meet state standards and insure that court-sanctioned batterer intervention programs have a method of communicating with probation and the court system.
j) Educate probation on the difference between batterer intervention and anger management.
k) Keep domestic violence cases in district court to reduce the chance that it may become a "bargaining chip" in a family court custody/divorce proceeding.
l) Prosecutors should review the charge to determine if the underlying offense supports a higher charge. For example, where a victim is strangled or sexually assaulted, charge those crimes in addition to domestic violence.
m) Train Prosecutors and probation officers on domestic violence, particularly in recognition of lethality indicators.
n) Train Prosecutors to request sentencing in lieu of jail time, to accredited batterer intervention programs.
o) Train Prosecutors on the procedure for admission of other bad acts (404)(b), the effects of the confrontation clause and effective jury voir dire.
p) Issue witness, and particularly victim, subpoenas at least three days prior to a hearing date.
q) The Prosecutor’s office should continue the no drop policy regarding domestic violence cases. Whenever possible, prosecutors or victim services should call domestic violence victims before court date to assure attendance and alleviate their fears. The no drop/mandatory prosecution policy should be communicated to the police and courts. [MCCDV2006]

Recommendations for the civil legal system are as follows:
a) Train for judges, prosecutors and the Friend of the Court on lethality/danger for domestic violence. New judges, prosecutors and the Friend of the Court employees should be trained not just in the dynamics of domestic violence and lethality assessment but as to the importance of cross systems integration to maximize safety as well as how a survivor experiences disparate systems.
b) Involve community in the development of a supervised visitation and exchange center staffed by professionals trained in assessing dangerousness, lethality and domestic violence.
c) Develop and train a pro bono panel and work toward funding a highly trained legal aid program for indigent domestic violence survivors. Work to include the Macomb County Bar Association and Young Lawyers and provide free training in exchange for pro bono commitment.
d) Recruit representatives from the Friend of the Court and Child Protective Services to become part of Macomb County Coordinated Community Response. Create a working group to address systemic gaps between Family Court and Child Protective Services.
e) Macomb County is the only county statewide that defines "family court" as one judge determining both the criminal and civil issues within one family. All other jurisdictions comply with the definition of MCL 600.102, which defines family court as one judge hearing the divorce and probate action (child protective services case). Because Prosecutors represent the interests of the State of Michigan and a prosecution has significant impact on the Defendant and community interests, involvement of a criminal proceeding concurrent with a family matter provides an appearance of impropriety. The concurrent prosecution of a criminal offense and a divorce proceeding encourages the negotiation of criminal offenses to resolve the family matter, shifting emphasis from crime and punishment and relegating offenses to a family sphere. It is the recommendation of this team that district court judges handle misdemeanor domestic violence cases, and felony actions be assigned to a different circuit court judge than the family court judge handling a pending custody or divorce action.
f) Provide judges, magistrates, referees and probation officers training on the difference between anger management and Batterer’s intervention. Provide probation with a list of Batterer Intervention Programs that meet
state standards.
g) Provide education for civil attorneys on warning signs and safety planning and differences between domestic violence and highly contentious divorces.
h) Provide training for Child Protective Services on the dynamics of domestic violence to insure that the non-offending parent is not being charged with controlling the behavior of the batterer.
I) Create and distribute for use by the Friend of the Court and Family Court a questionnaire to identify lethality based on the FBI’s identified risk factors.
j) Create and distribute model parenting time orders to maximize victim safety for cases involving domestic violence. [MCCDV2006]

"This is an epidemic social ill," she said. What's being talked about are the type of "discussions we have not had to this point" in this county. [FJ12/23/07]

Folks said she expects an answer on her proposal early in 2008 and said the proposed team would be structured like the county's Child Death Review Team, which reviews individual cases of childhood fatalities, looking for trends, patterns, and needed changes. [FJ12/23/07]

The team would include representatives of law enforcement, prosecutors and domestic violence service providers. [FJ12/23/07]

In Oakland County, the team has operated since 2002, according to Lisa Gorcyca, who heads the team. [FJ12/23/07]

"When we review a fatality we learn about (whether) there was prior abuse, had they been in the criminal justice system, and if they had, we make sure the system worked for these people," Gorcyca said. "We look for areas the system could improve on." [FJ12/23/07]

Posted here by
Terry Bankert
12/23/07
http://attorneybankert.com/

-CITED-
[FJ12/23/07]
Tackling domestic violence
Effort would form new review team
GENESEE COUNTY
THE FLINT JOURNAL FIRST EDITIONSunday, December 23, 2007
http://www.mlive.com/news/flintjournal/index.ssf?/base/news-48/1198389011225400.xml&coll=5
-
cite

[MCCDV2006]
Macomb County Domestic Violence Fatality Review Team 2006 Report
FOR MORE INFORMATION REGARDING THE
MACOMB COUNTY FATALITY REVIEW TEAM,
PLEASE FEEL FREE TO CONTACT:
HONORABLE JOSEPH OSTER
DISTRICT JUDGE, 40TH JUDICIAL DISTRICT COURT
22701 JEFFERSON AVENUE
SAINT CLAIR SHORES, MICHIGAN
[DVBB1998]
Domestic Violence Benchbook, Michigan Judicial Institute 1998