Mom get Physical custody, wins on Best Interest Test

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Attorney Terry Bankert 4/10-11/09
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Today’s issues are hot "Off the Press" released by the Michigan Court of Appeals on 4/2/09.
Flint Divorce Attorney Terry Bankert has modified (consult an attorney before reliance,) this opinion for media presentation, written, radio and internet TV. Flint Divorce Lawyer Terry Bankert practices exclusively in Michigan Family Law. Www.DivorceLawGuy.com
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Issues:
MOM WANTS TO CHANGE CUSTODY
1.Custody; Whether the trial court properly granted the defendant-mother's motion for a change of physical custody of the parties' minor children; MCL 722.28; Mason v. Simmons; MCL 722.27(1)(c); Powery v. Wells; Schlender v. Schlender; Fletcher v. Fletcher; Berger v. Berger;
DID THE LOWER HANDLE THE BEST INTEREST FACTORS RIGHT?
2.Whether the trial court's findings as to several child custody factors were against the great weight of the evidence;
DAD NEEDED MORE TIME COURT SAID NO
3.Denial of the plaintiff-father's request for an adjournment; Soumis v. Soumis; MCR 2.503(C)(1) and (2);
THE POWER OF FREIND OF THE COURT
4.Admission of the FOC report over plaintiff's objection at the evidentiary hearing; Duperon v. Duperon
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/opinions/appeals/2009/031209/42134.pdf/opinions/appeals/2009/031209/42134.pdfS T A T E O F M I C H I G A N C O U R T O F A P P E A L S
CHRISTOPHER J. STARK, Plaintiff-Appellant, UNPUBLISHED
April 2, 2009, v No. 287314 ,Kent Circuit Court ,CYNTHIA L. STARK,
LC No. 99-005236-DM ,e-Journal Number: 42360
Defendant-Appellee.Before: Sawyer, P.J., and Zahra and Shapiro, JJ.
PER CURIAM.
Full article posted at http://terrybankert.blogspot.com/
COMPLETE ARTICLE AFTER CAPTION FOLLOWS
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Plaintiff Christopher Stark appeals as of right the trial court’s August 1, 2008 order,
which granted defendant Cynthia Stark’s motion for a change in physical custody of the parties’
two minor children. We affirm.
I. CHANGE OF CUSTODY, COURTS CANNOT ABUSE DISCRETION
Plaintiff first argues that the trial court abused its discretion in concluding that a change
in custody was in the children’s best interests.
A. WHAT IS THE STANDARD OF REVIEW
This Court must affirm a trial court’s custody order unless the trial court made factual
findings against the great weight of the evidence, committed a palpable abuse of discretion, or
made a clear legal error on a major issue. MCL 722.28; Mason v Simmons, 267 Mich App 188,
194; 704 NW2d 104 (2005).
CLEAR AND CONVINCING EVIDENCE NEEDED TO CHANGE CUSTODY
Modification of an established custodial environment requires clear
and convincing evidence that the change is in the best interest of the child. MCL 722.27(1)(c);
Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008).
THE COURT MUST USE THE BEST INTEREST FACTORS
The trial court must weigh the statutory best interest factors enumerated in MCL 722.23 and make a factual finding regarding each factor. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
" A [TRIAL]court’s ultimate finding regarding a particular factor is a factual finding that can be set aside if it is against the great weight of the evidence." Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
Therefore, a trial court’s findings "with respect to each factor regarding the best
interests of the child under MCL 722.23 should be affirmed unless the evidence clearly
preponderates in the opposite direction." Berger v Berger, 277 Mich App 700, 706; 747 NW2d
336 (2008).
B. Analysis
1ST QUESTION , WHERE IS THE CUSTODIAL ENVIRONMENT
In this case, the trial court found that a custodial environment existed with plaintiff and
properly weighed each of the best interest factors.
CLEAR AND CONVINCING EVIDENCE NEEDED
After weighing the best interest factors, the trial court found that a change was warranted by clear and convincing evidence. Specifically, the trial court found that factors (a), (b), (d), (e), (f), (h), (j), (k), and (l) favored defendant, that plaintiff was favored on factor (c), and that the parties were equal with regard to factor (g).
Plaintiff challenges the trial court’s findings of fact pertaining to factors (a), (b), (d), (e), (f), (h),
(j), (k), and (l) of the best interest factors, arguing that the findings were against the great weight
of the evidence.
FACTOR A
Factor (a) refers to "[t]he love, affection, and other emotional ties existing between the
parties involved and the child." MCL 722.23(a). The trial court found that plaintiff’s emotional
relationship with the children was severely damaged because of pornography found in the home,
excessive use of corporal punishment, and uneven treatment of the children. There was ample
evidence showing a strained emotional tie between plaintiff and the children. The parties’ son
was very angry with plaintiff and refused to see plaintiff because of plaintiff’s punishment
techniques and the perceived disparate treatment amongst the children. In addition, the parties’
daughter had unresolved fear and anxiety stemming from the pornography in plaintiff’s house
and his use of corporal punishment. Furthermore, plaintiff admitted that he had declined to take
the steps necessary to continue supervised visitation and strengthen the emotional tie. The
evidence does not clearly preponderate against the trial court’s finding that this factor favored
defendant.
FACTOR B
Factor (b) requires the trial court to consider "[t]he 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." MCL 722.23(b). The trial court found that
defendant had a greater disposition to fulfill this factor because the children harbored unresolved
fear and anger against plaintiff. The trial court recognized that plaintiff met this factor in the
past, but after a specific incident on August 28, plaintiff failed to provide the intervention
necessary for "healing and restoration of relationships." David Bosworth testified that the
children found more comfort with defendant despite spending the majority of their time with
plaintiff. In addition, both of the children had unresolved anger towards plaintiff, but he has
refused to exchange letters through the children’s therapist to repair the relationship.
Accordingly, the trial court’s finding that this factor favors defendant is not against the great
weight of the evidence.
FACTOR D
In regards to factor (d), "[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity," MCL 722.23(d), the trial court
found that defendant enjoyed custody of the children since the August 28 incident and was in a
stable relationship and environment for several years while plaintiff’s home was less stable
because of the use of corporal punishment and pornography in the home. Defendant testified
that she has lived with her boyfriend for four years and that they had recently purchased a house.
Plaintiff lived with his partner and had two other roommates until April 2008, and while in
plaintiff’s custody, the children were exposed to pornography and received excessive corporal
punishment. Accordingly, the trial court’s finding that this factor favors defendant is not against
the great weight of the evidence.
FACTOR E
As for factor (e), "[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes," MCL 722.23(e), the trial court found that defendant’s living situation
exhibited more permanence than plaintiff’s situation. Defendant testified that she was in a fouryear,
stable relationship with her boyfriend and that she planned to move into a house in August
2008. The new house was located in the children’s school district and would not result in a
change of school. Plaintiff lives in a four bedroom duplex with his partner. While in custody of
the children, plaintiff has had other partners and roommates living with him and has lived in a
number of different places, including defendant’s home. Therefore, the trial court’s
determination of this factor is consistent with the evidence on the record and was not against the
great weight of the evidence.
FACTOR F
Factor (f) "[t]he moral fitness of the parties involved," MCL 722.23(f), relates to the
parent-child relationship and the effect that any identified conduct at issue may have on that
relationship. Fletcher, supra at 887. Conduct relevant to this factor includes "verbal abuse,
drinking problems, driving record, physical or sexual abuse and other illegal or offensive
behaviors." Id. The trial court indicated that its primary concern on this factor was the
children’s exposure to pornography. Bosworth interviewed the children and determined that
they both had been exposed to inappropriate sexualized images and situations in plaintiff’s home.
Some of the sexual images were purposefully shown to the children by plaintiff and his partner.
Bosworth testified that exposure to sexual images and items caused the children to experience
anxiety and could be deleterious to their future development. Accordingly, the trial court’s
finding that this factor favors defendant is not against the great weight of the evidence.
The trial court found in favor of defendant with regard to factor (h), "[t]he home, school,
and community record of the child." MCL 722.23(h). The trial court commended plaintiff’s
efforts for establishing a foundation for the children’s educational successes; however, plaintiff’s
ongoing discipline regime was unhealthy and detrimental to the children’s development.
Bosworth testified that plaintiff’s discipline techniques were not suitable for someone with
special educational needs like the parties’ son. Plaintiff’s use of corporal punishment caused
both of the children to experience anxiety. Defendant on the other hand used a system of
privilege removal and timeouts, and the children were responsive to those techniques. Both of
the children found more comfort with defendant. Therefore, the trial court’s determination of
this factor is consistent with the evidence on the record and was not against the great weight of
the evidence.
FACTOR J
With regard to factor (j), "[t]he 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," MCL 722.23(j), the trial court found that defendant
attempted to facilitate a strong relationship between the children and plaintiff while plaintiff was
unwilling to accept criticism of his past mistakes and had terminated contact with the children.
Bosworth testified that the parties are often inappropriate in the comments they make concerning
the other party; however, plaintiff’s criticisms are more prolific. In addition, during the
supervised visitation, William Edwards testified that defendant encouraged the parties’ reluctant
son to visit with plaintiff. Conversely, plaintiff refused to bring the children’s Christmas
presents or video game equipment to the supervised parenting time because he felt their property
should stay at his home. In addition, plaintiff refused to take the steps necessary to continue
supervised visitation. Accordingly, the trial court’s finding that this factor favors defendant is
not against the great weight of the evidence.
FACTOR K
Factor (k) refers to "[d]omestic violence, regardless of whether the violence was directed
against or witnessed by the child." MCL 722.23(k). The trial court found that there was a long
history of domestic violence between the parties and that both parties bear the responsibility to
change their behavior; however, the trial court found that more recent events were dispositive on
this issue. Defendant admitted that she was arrested twice for domestic violence against plaintiff
in the past and previously used corporal punishment with the children. Plaintiff recently used
corporal punishment as a motivation for the parties’ son to behave properly in school and used it
when he threatened to slap the parties’ daughter after she used "the Lord’s name in vain." In
addition, plaintiff was arrested after the August 28 incident because the son had red marks on his
neck and chest. Furthermore, Edwards testified that he was primarily concerned about emotional
abuse that may be occurring between the children and plaintiff. The children were more
comfortable with defendant because of the corporal punishment and pornography issues at
plaintiff’s household. Therefore, the trial court’s determination of this factor is consistent with
the evidence on the record and was not against the great weight of the evidence.
Factor (l) refers to "[a]ny other factor considered by the court to be relevant to a
particular child custody dispute." MCL 722.23(l). The trial court found that the parties’
daughter required special care because she was a victim of sexual abuse and that plaintiff did not
fully appreciate the situation and allowed the child to be exposed to pornography. Bosworth
testified that the child was intrigued by pornography and searched for pornographic images and
that plaintiff had not completely restricted access to the sexualized images and, in fact, had
shown some of them intentionally. Bosworth testified that the child was experiencing anxiety
because of her exposure to inappropriate adult images and that such exposure could cause further
deleterious effects. Accordingly, the trial court’s finding that this factor favors defendant is not
against the great weight of the evidence.
COURT PROPERLY CONSIDERED EACH FACTOR
Our review of the record indicates that the trial court properly considered each of the best
interest factors and made factual findings consistent with the record evidence. The majority of
the statutory factors weighed in favor of defendant and the great weight of the evidence
supported the challenged findings. Because the evidence did not clearly preponderate in the
opposite direction, and because the findings favored defendant, there is no basis on which to find
that the trial court abused its discretion in granting defendant sole custody of the children.
II. DAD WANTED ADJOURNMENT
Plaintiff next argues that the trial court erred in denying his request for an adjournment to
allow him more time to prepare for the hearing.
A. Standard of Review
This Court reviews a trial court’s decision on a motion for an adjournment for an abuse of
discretion. Soumis v Soumis, 218 Mich App 27, 32-33; 553 NW2d 619 (1996).
B. Analysis OF FATHERS REQUEST FOR ADJOURNMENT
An adjournment may be granted because of the unavailability of a witness or evidence,
but the motion "must be made as soon as possible after ascertaining the facts" and "only if the
court finds that the evidence is material and that diligent efforts have been made to produce the
witness or evidence." MCR 2.503(C)(1) and (2).
ADJOURNEMNT MUST BE FORE GOOD CAUSE
In addition, a motion for an adjournment must
be based on good cause, and a trial court may grant an adjournment to promote the cause of
justice. Soumis, supra at 32.
FATHER DID NOT ASK FOR THE ADJOURNMENT QUICK ENOUGH
Plaintiff’s claim that the trial court erred in refusing to grant his motion for an
adjournment is without merit because plaintiff’s motion for adjournment was not timely and was
not made for good cause.
FATHER WAS ILL AND WANTED ADJOURNMENT
Plaintiff moved for an adjournment three days before the hearing
because he was unable to reestablish supervised parenting time with the children and was unable
to communicate with his counsel preceding the hearing because of a prolonged illness. While we
do not question that plaintiff’s counsel suffered a prolonged illness before the hearing, the record
does not support that an adjournment was necessary. Counsel appeared in this matter on
February 20, 2008, and even without most of the month of May to prepare, he had more than two
months, including a full week before trial to prepare. Nothing in the record or in plaintiff’s
arguments on appeal indicates that certain witnesses or evidence was not presented because of
any lack of preparation. Further, plaintiff failed to articulate to the trial court, or to this Court,
how additional preparation would have benefited plaintiff. In addition, there was evidence that
plaintiff’s counsel was aware that Edwards suspended plaintiff’s supervised parenting time in
April 2008, and he discussed the matter with plaintiff. Plaintiff had ample time to address the
issue before the evidentiary hearing. Therefore, we conclude that plaintiff’s motion, made the
Friday before the hearing, was not only untimely, but was not made for good cause. The trial
court did not abuse its discretion in denying plaintiff’s motion.
III. THE POWERFUL FRIEND OF THE COURT REPORT
Plaintiff next argues that the trial court erred in admitting the Friend of the Court (FOC)
report over his objection at the evidentiary hearing.
A. Standard of Review
A trial court’s evidentiary decision is reviewed for an abuse of discretion. Waknin v
Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).
B. Analysis ENTERING INTO A TRIAL THE FRIEND OF THE COURT REPORT WITHOUT TESTIMONY?
We reject defendant’s contention that the trial court erred in admitting the FOC report at
the evidentiary hearing. In rendering its opinion, the trial court never referred to the FOC report
and did not rely on the report as the basis for its decision. The trial court based its opinion upon
competent evidence adduced at the hearing. The trial court’s modification of the custody order
was proper.
Affirmed.
/s/ David H. Sawyer
/s/ Brian K. Zahra
/s/ Douglas B. Shapiro
[Comments of Flint Lawyer Terry Bankert are found within Brackets or CAP Headlines. Spacing has been changed for readability-trb]
END ARTICLE
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