Appellate court says Van Buren judge did not get the basics right!

THE JUDGE JUST CANNOT SAY MY REFEREE DID A GOOD JOB, THEN CHANGE CUSTODY!
Necessary optimization. Flint Divorce Lawyer Terry Bankert today reviews an order to change child custody. Terry Bankert Flint child custody attorney observes as does the Court of Appeals that judges cannot blindly accept the finding of a referee, especialy when custody of a child is changed. For more Flint Family Law attorney articles read the articles posted on the website of Flint Divorce attorney Terry Bankert.

Today’s , 4/4/09,Issues Released 3/26/09 Unpublished:

1.Custody; Fletcher v. Fletcher; Powery v. Wells; Order modifying parenting time; Whether the trial court properly affirmed the referee's decision to modify the established custodial environment based on a preponderance of the evidence; Vodvarka v. Grasmeyer; Terry v. Affum (On Remand);

2. The clear and convincing evidence standard; MCL 722.27(1)(c);

3.Consideration of the best interest factors required by MCL 722.23; Rivette v. Rose-Molina;

4.No contact order between the child and the defendant-mother's current husband
[This opinion has been modified for media presentation.Consult an attorney before you rely on its content.-Terry Bankert]

ejournal summary

The court reversed the trial court's order modifying parenting time and remanded the case because it was not clear whether the referee applied the correct burden of proof (clear and convincing evidence), the failure to definitively use the correct burden of proof constitutes clear legal error, and the trial court erred in failing to consider the best interest factors as required by MCL 722.23.

THE LOWER TRIAL COURT DID WHAT?

The trial court modified parenting time from week on/week off to the defendant-mother having custody every other weekend and entered a no contact order between her current husband and the child.

DAD SAYS I SHOWED CHANGE IN CIRCUMSTANCES!DID THE REFEREE USE THE RIGHT LAW?

While the plaintiff-father established by a preponderance of the evidence there had been a change in circumstances warranting modification of parenting time, it was not clear the referee or the trial court applied the correct burden of proof in determining whether to modify the existing custodial environment.

HIGH COURT TELLS THE JUDGE AND REFEREE TO DO IT RIGHT.

On remand, the referee and the trial court must review the record and determine if plaintiff proved modification of the custody order was in the child's best interest by clear and convincing evidence.

A BEST INTEREST ANALYSIS IN FAMILY LAW IS AS FUNDAMENTAL TO CHANGES IN CUSTODY AS AIR IS TO BREATHING.

Further, neither the referee nor the trial court referenced the statutory best interest factors in their orders. The referee recounted the findings of fact, and both the referee and the trial court summarily stated the custody modification was in the child's best interest because it was neither reasonable to expect, nor possible to ensure compliance, with defendant staying away from her husband every other week.

REFERRING 101 FAILED!

Because there was no reference to the best interest factors either by the referee in his recommendations and order or by the trial court in its order, a remand for findings on the best interest factors was required.

THE TRIAL COURT JUDGE SHOULD HAVE KNOWN BETTER

"A mere statement by the trial court that the referee's findings were in the best interests of the child is not a sufficient review of the best interest factors." Reversed and remanded.
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S 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
e-Journal Number: 42269,CHAD S. MAXAM, Plaintiff-Appellee,
UNPUBLISHED,March 26, 2009,v No. 280827,Van Buren Circuit Court
CRYSTAL A. NIEMI, f/k/a CRYSTAL A.SNYDER,
LC No. 02-049876-DC ,Defendant-Appellant., Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.,PER CURIAM.
- snippets of the full case follow, consult an attorney before you rely on this content there have been modifications-

In this child-custody dispute,... We reverse

and remand. This case has been decided without oral argument pursuant to MCR 7.214(E).

THERE WAS ABUSE OF DISCRETION

A custody decision is a discretionary ruling that is reviewed under an abuse of discretion
standard. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
...
Defendant argues the trial court abused its discretion when it affirmed the referee’s
decision to modify the established custodial environment based up a preponderance of the
evidence.

PROPER CAUSE.CHANGE CIRCUMSTANCE, PREPONDERENCE OF EVIDENCE

The trial court may modify or amend a prior parenting time order only for proper cause
shown or because of a change of circumstances. The party seeking the change in parenting time
must prove the change in circumstances by a preponderance of the evidence. Vodvarka v
Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003); Terry v Affum (On Remand), 237
Mich App 522, 534-535; 603 NW2d 788 (1999).

IF CHANGE PROVEN, CUSTODIAL ENVIRONMENT THEN CLEAR AND CONVINCING

If a change of circumstances is proven, the trial court must then determine if there is an established custodial environment. If there is, the party seeking to modify the custody order must demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra at 528; Foskett
v Foskett, 247 Mich App 1, 5-6; 634 NW2d 363 (2001); LaFleche v Ybarra, 242 Mich App 692,
695-696; 619 NW2d 738 (2000).

MOM’S LONG TERM BOYFRIEND IS A SEX OFFENDER

In the instant case, plaintiff established by a preponderance of the evidence that there had
been a change in circumstances warranting modification of parenting time. Vodvarka, supra;
Terry, supra. Plaintiff discovered in April 2006 that defendant’s long-term boyfriend (now
husband) was a registered sex offender. Defendant had knowledge of her husband’s criminal
background for many years but never informed plaintiff of this information.

BUT HE WAS ONLY A MODERATE RISK

Dr. Lemmen, a forensic psychiatrist, testified the husband was at a moderate risk to re-offend. Lemmen stated a CSC sub-specialist would be most qualified to make a risk of recidivism determination.
...
THERE WAS A JOINT CUSTODIAL ENVIRONMENT THE CHANGE IN PARENTING WOULD CHANGE THE CUSTODY

Next, the referee determined, and neither party disputes, there was an established
custodial environment prior to the instant action. Plaintiff’s requested modification from week
on/week off to defendant having custody every other weekend (and no contact between the child and defendant’s husband) would result in a change in the established custodial environment.

Because of this, plaintiff was required to demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra; Foskett, supra;
LaFleche, supra.

JUST WHAT BURDEN DID THE REFEREE USE

It is not clear on the record whether the referee in fact applied the correct burden of proof
(clear and convincing evidence) in the determination of whether to modify the existing custodial
environment. The referee noted the appropriate burden, with case citation, in the initial
recommendation and order. However, he mistakenly stated the "preponderance of the evidence" standard in the second recommendation following remand, and did so without case citation.

JUST WHAT BURDEN DID THE JUDGE USE?

Similarly, the trial court failed to indicate which standard it applied when accepting the referee’s
recommendations. Rather, it just found the referee’s recommendations were appropriate and in
the child’s best interests.

CLEAR ERROR ON THE PART OF JUDGE

The failure to definitively use the correct burden of proof constitutes
clear legal error. Powery, supra.

THEY SENT IT BACK AND TOLD THEM TO DO IT RIGHT

On remand, the referee and trial court must review the record
and determine whether plaintiff proved modification of the custody order was in the child’s best
interest by clear and convincing evidence.

JUST HOW DID A FAMILY COURT JUDGE FORGET ABOUT THE BEST INTERESTS

Furthermore, we also find the trial court erred by failing to consider the best interest
factors required by MCL 722.23. Neither the referee nor the trial court referenced the statutory
best interest factors in their orders. Rather, the referee recounted the findings of fact and the
referee and trial court both summarily stated the custody modification was in the child’s best
interest because it was neither reasonable to expect, nor possible to ensure compliance, with
defendant staying away from her husband every other week.

THEY SENT IT BACK AND TOLD THE JUDGE TO DO IT RIGHT

Because there was no reference on the record by either the referee in his recommendations and order, or by the trial court in its order, to the best interest factors, a remand for such findings is required. Rivette v Rose-Molina, 278 Mich App 327, 329-333; 750 NW2d 603 (2008). A mere statement by the trial court that the referee’s findings were in the best interests of the child is not a sufficient review of the best interest factors.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Michael J. Cavanagh
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
Posted here by Terry Bankert