IOSCO COUNTY SAYS MAN IS DAD EVEN WHEN DNA SAYS HE IS NOT?

CELEBRITY ISSUE SPOTTING AND A LITTLE “SEO”


***** Comments by Flint Divorce Attorney Terry R. Bankert *****

NO PRE NUP

TMZ reports that Larry King, who filed for divorce this week from his seventh wife, didn’t have a prenup agreement with Shawn King.[1]

FAULT

The two have been married for 13 years and have two young sons. Rumors are flying that Shawn, who is also suing for divorce, is ticked off because she thinks Larry had an affair with her sister.[1]

IRRECONCILABLE DIFFERENCES

In court they’ll call that irreconcilable difference.[1]

PROPERTY DISTRIBUTION

TMZ estimates Larry’s net worth at $144 million and says his current contract with CNN is worth $56 million over four years.[1]

California law entitles Shawn to a 50/50 split of all earnings accumulated during the marriage.[1]

FIRING DIVORCE LAWYER

Golfer Tiger Woods' wife Elin Nordegren has reportedly hired a new divorce lawyer. [2]

RECONCILIATION

Insiders are quoted as saying the former model , Elin Nordegren, is angry that Tiger returned to golf so soon after his cheating scandal and she snubbed the Masters. [3]

ENFORCEMENT OF COURT ORDERS

Rapper Nas can't wait to put his messy divorce from R&B singer Kelis firmly behind him so he can focus on his work and fatherhood……Nas was hauled into court on Monday, when a Los Angeles judge ordered him to hand over more than $290,000 in late child and spousal support payments, in addition to covering Kelis' legal and accounting bills.[4]
*****

THE BABY IS NOT MINE!

Flint Divorce Lawyer Terry Bankert comments on several Michigan Divorce Issues:

-Motion to revoke an acknowledgment of parentage; Sinicropi v. Mazurek (After Remand); MCL 722.1003; Bay County Prosecutor v. Nugent; MCL 722.1011(1); MCL 722.1011(2)(a); MCL 722.1011(3);

-Whether the equities supported revocation of the acknowledgment of parentage; Laches; Tray v. Whitney



See Generally Court: Michigan Court of Appeals (Unpublished),April 13, 2010, v No. 294998 ,Iosco Circuit Court Family Division, , LC No. 09-004751-DS,e-Journal Number: 45518.



The Iosco Circuit trial court got it wrong when the Judge denied the man’s motion to revoke his acknowledgment of parentage.

WHO DID THIS HAPPEN?

In 2003, plaintiff gave birth to a son (C). At the time, MOTHER plaintiff was living with male defendant. Believing C to be his biological son, the man and the mother executed an acknowledgment of parentage.

WOMEN SOMETIMES ARE CONFUSED ABOUT WHO THE FATHE IS

In September 2004, when the relationship between MOTHER and THE MALE defendant began to sour, defendant obtained a DNA test confirming he was not C's biological father.

AFTER SIGNING THE DOCUMENT SAYING HE WA THE FATHER HE THEN GOT A DNA TEST!

In spite of this, defendant remained with plaintiff and C. Approximately one year later, defendant broke off his relationship with plaintiff, moving out of the home.

HE STAYED WITH THE CHILD 1 YEAR, MOM WANTS CHILD SUPPORT HE WANTS OUT.

In January 2009, plaintiff sought child support.

THE DNA DOES NOT LIE

Relying on the DNA test results, male moved, pursuant to MCL 722.1011, to revoke the acknowledgment of parentage.

THERE IS A STATE LAW ALLOWING MEN TO INVALIDATE THE AFFIDAVIDIT OF PARENTAGE

There was no disagreement the acknowledgment of parentage was valid, the man’s motion for revocation was proper, the man sufficiently supported his motion by showing mistake of fact (one of the five enumerated grounds), and he proved by clear and convincing evidence C was not his biological son.

AFTER HE KNEW DID THE MAN STAY WITH THE CHILD TOO LONG? WWAS IT FAIR TO THE CHILD

The man and mother disputed, however, whether the equities supported revocation of the acknowledgment of parentage.

IOSCO HELD THE MANS TOES TO THE FIRE

The Iosco Family Court based its bad decision on the judges opinion the equitable doctrine of laches, applies because of the man’s delay in attempting to revoke his acknowledgment of parentage this made revocation unfair.

MOM HAD TIME TO FIND THE BIOLOGICAL FATHER

The Iosco court's conclusion the man’s actions prevented mom from looking for C's biological father made little sense under the facts.

MOM COULD HAVE SOUGHT SUPPORT FROM THE REAL DAD

Just as defendant had known for four and a half years he was not C's biological father, so had the mother plaintiff. She was not prevented from seeking out the biological father, and she was not prevented from seeking support from defendant. It was unfortunate neither parent acted earlier.

THE IOSCO COURT SAID IT WAS OKAY FOR THE MAN TO LET THE CHILD THINK DADDY WAS NEAR!

However, the Iosco court held the man’s delay in attempting to revoke his acknowledgment of parentage was not unreasonable under the circumstances.

THE RELATIONSHIP HAD BEEN BROKEN OFF,

The man had no relationship with C for about three years prior to the initiation of the litigation, and mom acquiesced to the status quo for the same time period.



There was no reason to believe the mother relied on the acknowledgment of parentage during the time. Under these circumstances, revocation was the okay.. The Iosco trial court's denial of the motion to revoke acknowledgment of parentage was found to be wrong.



Because the Iosco court's judgment of filiation, and award of child support, was founded on the acknowledgment of parentage, the judgment was destroyed, and the case was sent back to Iosco County to get it right.

-
THE COURT OF APPEALS RULED :In equitable matters, we review a trial court’s factual findings for clear error, but “whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo.” Sinicropi v Mazurek (After Remand), 279 Mich App 455, 462; 760 NW2d

520 (2008).





THE COURT OF APPEALS RULED :When an unmarried woman gives birth to a child, that woman may join with a man in

completing an acknowledgment of parentage form, and if they do so, that man is considered the

natural father of the child, MCL 722.1003, and becomes a “legal parent” of the child, Bay Co

Prosecutor v Nugent, 276 Mich App 183, 188; 740 NW2d 678 (2007).



THE COURT OF APPEALS RULED :The man who signs an

acknowledgment of parentage may later file a claim to revoke the acknowledgment. MCL

722.1011(1). Such a claim may be made as a motion in an existing action for child support. Id.





THE COURT OF APPEALS RULED :The claim must be accompanied by an affidavit setting out facts supporting at least one of five

enumerated grounds for revocation, one of which is mistake of fact. MCL 722.1011(2)(a). If the

court finds the affidavit sufficient, the claimant has the burden of proving by clear and

convincing evidence (1) that the child is not his, and (2) “that, considering the equities of the

case, revocation of the acknowledgment is proper.” MCL 722.1011(3).

THE COURT OF APPEALS RULED :

Laches requires more than a

showing of a passage of time; “there must also have been a change of conditions which would

render it inequitable to enforce the claim, or a showing that the defendant was prejudiced by the

delay.” Tray v Whitney, 35 Mich App 529, 535; 192 NW2d 628 (1971).



THE COURT OF APPEALS RULED :It is truly unfortunate that neither parent acted earlier. Nonetheless, we conclude that defendant’s delay in attempting to revoke his acknowledgment of parentage was not

unreasonable under the circumstances. Defendant had no relationship with Colton for about

three years prior to the initiation of this litigation, and plaintiff acquiesced to that state of affairs

for the same time period. There is no reason to believe that plaintiff relied on the

acknowledgment of parentage during that time. Under these circumstances, revocation was the

proper result. Accordingly, we reverse.



Posted Here by

Terry R. Bankert

http://www.attorneybankert.com/


To find your county court house see,

http://www.dumpmyspouse.com/




Sources

[1]

http://www.kansascity.com/2010/04/16/1882240/stargazing-larry-vs-shawn-king.html


[2]

http://sify.com/news/tiger-woods-wife-switches-divorce-lawyer-news-international-keqtkfhcdga.html


[3]

http://www.timeslive.co.za/entertainment/article406695.ece/Imminent-divorce-for-Tiger-Woods


[4]

http://www.sfgate.com/cgi-bin/blogs/dailydish/detail?entry_id=61369

COURT DELAY CAUSES DAD TO LOSE CUSTODY

Flint Divorce Attorney comments on several Issues:

MOTION FOR CHANGE OF CUSTODY AND ISSUES OF ;

CUSTODIAL ENVIRONMENT

*Whether there was an established custodial environment with the defendant-mother; Phillips v. Jordan; McIntosh v. McIntosh; Harvey v. Harvey; Jack v. Jack;

BURDEN OF PROOF

*Whether after finding an established custodian environment existed with defendant alone the trial court used that finding to reverse the burden of proof on the change of custody motion; Fletcher v. Fletcher (After Remand); Vodvarka v. Grasmeyer;

CHANGE IN CIRCUMSTANCES

*Whether the trial court determined whether there was a change of circumstances and properly changed the custodial arrangement; The Child Custody Act


See generally Court: Michigan Court of Appeals (Unpublished 4/6/2010),Case Name: Spears v. Ziemba, e-Journal Number: 45467,Judge(s): Per Curiam – Wilder, O’Connell, and Talbot ,Wayne Circuit Court Family Division,LC No. 00-024757-CC

WAYNE COURT GOT IT RIGHT

The Wayne Circuit Court Family Division called the trial court properly found there was an established custodial environment with the defendant-mother, did not improperly shift the burden of proof, and granted her motion for change of custody.

THE PARENTS WERE NOT MARRIED

The parties met in 1998. They did not marry. Their only child, M, was born in 1999. Plaintiff commenced this action in 2000. A year or two later, the parties moved to Iowa with M. Later, plaintiff returned to Michigan. M remained in Iowa.

FIRST ORDER SOLE PHYSICAL CUSTODY TO DAD, THE PLAINTIFF

In November 2003, the trial court entered a consent judgment of custody, providing for joint legal custody, and granting sole physical custody of M to plaintiff.

MOM GOT A DETAILED PARENTING TIME PLAN

A detailed parenting time schedule was also set forth in the judgment.

DAD GETS A JOB OFFER AND MOVES, THE PARTY HAD JOINT LEGAL CUSTODY

In 2007, plaintiff received a job offer with a company located in South Carolina. Plaintiff accepted the job offer and during the time defendant was exercising her summer parenting time with M, plaintiff moved to South Carolina.

WAYNE COURT SAID NOW MOM HAD CUSTODIAL ENVIRONMENT

The trial court concluded there was an established custodial environment for M with defendant …

DAD HAD AN ORDER NOT TO REMOVE THE CHILKD FROM THE STATE AND HE MOVED

…because M had been living with defendant since the summer of 2007, pursuant to the trial court's order M not be removed from the state of Michigan after plaintiff moved to South Carolina.


WHY DID MOM HAVE THE CUSTODIAL ENVIRONMENT?

SCHOOL

The trial court noted under its prior order, M was enrolled in school in Michigan, …

LIVING WITH MOM

…had been with defendant for an appreciable time, and …

LOOKED TO MOM FOR GUIDANCE

…naturally looked to her for guidance, discipline, necessities of life, and parental comfort.

EMOTIONAL TIES

The trial court also found the emotional ties between M and defendant were stronger than those between the child and plaintiff.

DAD SAID THE COURT TOOK TOO LONG ON HIS MOTION AND IS PARTLY RESPONSIBLE FOR THE CHANGE IN THE CUSTODIAL ENVIRONMENT…DELAY!!!!!

While the court acknowledged plaintiff's valid complaint about the trial court's failure to act expeditiously on his motion to change domicile and on the motion to change custody by permitting a two year delay before bringing the matter to conclusion, nevertheless,….

TOO BAD FOR DAD SAYS THE COURT

…. on the record before the court, the trial court's finding there existed an established custodial environment with defendant was not against the great weight of the evidence.

IT WAS DADS DECISION TO MOVE, HE CAUSED THE CHANGE

The trial court's February 2008 order found a change of circumstances had occurred because plaintiff's relocation to South Carolina led to a change in the established custodial environment.


Accordingly, the trial court did not fail to find the requisite change in circumstances warranting consideration anew of the custodial arrangement. Affirmed.

TIMELINE

The parties met in 1998.

They did not marry.

One childborn in 1999

Plaintiff commenced this action ,custody,in 2000.

A year or two later, the parties and child moved toIowa

Later, mom returned to Michigan.

The child remained with her father in Iowa.

November 2003, the Wayne Court entered a consent judgment of custody, providing for

joint legal custody, and granting sole physical custody of child to dad.

A detailed parenting time schedule was also set forth in the judgment for mom.

2007, dad received a job offer with a company located in South Carolina.

DAD accepted the job offer and during the time Mom defendant was exercising her summer parenting time with the child dad moved to South Carolina.

DAD TOOK THE JOB AND FILED A SPEEDY MOTION, THIS WAS HIS ONLY OPTION

June 28, 2007, dad filed a motion to change domicile in theWayne County Family Court.

The Court procedure caused dads motion to be referred to the circuit court’s Family Evaluation, Mediation and Counseling unit (FEMC), for investigation and recommendation on the motion to change domicile.

THE COURT PROCESS DRAGGED ON FOR 30 DAYS

Now 30 days have elapsed, the summer is ending Dad already had sole custody being exercised is a satte other than Michigan he just wanted to move to a different state with the child.

COURT TELLS DAD YOUR CHILD WILL STAY IN SCHOOL IN MICHIGAN

My read is that the Wayne Court punished father for moving without a court review. When the FEMC recommendation was still pending in August 2007, the Wayne Family Court trial court judge ruled that the child would remain in Michigan and attend school pending a hearing on the motion. This I my opinion was a court caused change in custodial environment.

AT 60 DAYS A PSYCHOLOGIST SAYS THE CHILD SHOULD GO WITH DAD

In September 2007, a psychologist for FEMC recommended granting the request to change domicile.

THE WAYNE COURT WAS IN NO HURRY NO HEARING GRANTED UNTILL SIX MONTHS AFTER THE FILING OF DADS MOTION

The trial court, however, did not hold an evidentiary hearing on the motion to

change domicile until January 2008, and following the hearing …

THE JUDGE WAS STILL IN NO HURRY

…he took the matter under advisement.

MOM WOKE UP AND FILED HER OWN MOTION TO CHANGE CUSTODY, THE JUDGE BY DELAY HAD GIVEN HER A GIFT OF OPPORTUNITY


Before the January 2008 evidentiary hearing, in December 2007, defendant had filed a
motion for change of custody.

THE COURT DENIED THE FATHERS REQUEST TO CHANGE THE CHILDS DOMICILE FROM ONE STATE TO ANOTHER. THE CHILD HAD NOT BEEN LIVING IN MICHIGAN

In February 2008, the trial court denied the motion to change domicile.

CATCH 22 APPLIED HERE . BY SUBMITING TO THE COURT WHEN NO CHANGE OF CIRCUMSTANCES EXISTED THE COURTS OWN DELAY WAS FOUND TO HAVE CREATED A CHANGE IN CIRCUMSTANCES. THE HIGHER COURT SAID OKAY.

The trial court also held that an evidentiary hearing was required on the motion to

change custody because there had been a change in the established custodial environment due to plaintiff’s relocation and the child having remained in Michigan, and thus, there had also been a change in circumstances.

DAD APPEALED LATE

In April 2008, plaintiff filed a delayed application for leave to appeal in this Court from

the trial court’s August 2007 order denying the motion to change domicile. This Court denied the delayed application for leave, Spears v Ziemba, unpublished order of the Court of Appeals, entered June 26, 2008 (Docket No. 284967), stating in part:

In light of plaintiff’s failure to appeal the February 11, 2008[,] opinion and

order denying his motion to change the child’s domicile and his failure to remain

in Iowa, the delayed application for leave to appeal is DENIED for failure to

persuade the Court of the need for immediate appellate review.

THE WAYNE COURTS HEARING ON MOMS REQUEST MUST HAVE BEEN FAULTY. WHY?

However, the matter is REMANDED to the trial court to promptly conduct a hearing on

defendant’s motion to change custody.