TIGER WOODS JOINT CUSTODY & CASE WHERE DAD TRYS TO CHANGE IT

Child Custody Issues discussed by Flint Divorce Lawyer Terry Bankert:




TO PARENTS ORDER FOR CUSTODY AND KEEPING IT ARE CRITICAL

We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]



And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren

and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]





Divorce;

DID YOU KNOW:

Grounds for divorce.

“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]

HOW MANY TIMES IS THIS PART VIOLATED?

The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]





Child custody;



DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:

There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider

the age of the child,

the physical environment, and

the inclination of the custodian and the child as to the permanency of the relationship.

The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]



THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS



Best interests of the child.

The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.

The court must consider each factor and make findings on the record.

The factors need not have equal weight; the court determines the weight of each factor.[3]





Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]



MCL 722.28; Berger v. Berger; Brausch v. Brausch;



Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]



Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;

Vodvarka v. Grasmeyer [1]



SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:

1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;

2. Defendant now works three days a week; and

3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.

Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]



HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE



Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]



WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT

In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]



NO CHANGE OF CIRCUMSTANCES



Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]



POOR PRESENTATION ON FATHERS PART



We observe that plaintiff has abandoned this issue on appeal by failing to properly brief

it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]



DIVORCED WITH FOUR CHILDREN



The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]

MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING

The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]



DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE



He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]

STEP MOMMY GROWING DEMANDS?

Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]

DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO

Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]



OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING

The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]



THIS SHOULD BE ABOUT THE CHILDREN



Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]



DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM

His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]



It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]

Posted Here  5/11/10
Terry R. Bankert
http://attorneybankert.com/



See:



[1], from e-journal

Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM

e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher



[CAPITALIZATIONS and trb are Terry Bankerts comments]



[2] See [1] from the case



[3]

Michigan Family Law Benchbook



[4]

http://celebs.gather.com/viewArticle.action?articleId=281474978227525

GrandParent visitation

MEMORANDUM




GRANDPARENTS RIGHTS

5/11/2010



Grandparenting Time

Source Michigan Family Law Bench Book

A. When a Grandparent May Seek an Order



Legislation was passed in 2005 restating Grandparents rights . Under the amended statute, MCL 722.27b, a grandparent may seek grandparenting time for one of the following reasons. These elements are here restated in the form a question .



GRANDPARENTS NAME





YOUR CHILD



THE OTHER PARENT OF YOUR GRAND CHILD





THE NAME (S) OF GRAND CHILDREN.



1



2



3



4



(a) IS an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court?

[]NO

[]YES. [] COUNTY GENESEE [] COUNTY OTHER





(b) ARE the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; [] NO, []YES, WHAT COUNTY







(c) IS the child’s parent who is a child of the grandparents is deceased;[]NO[]YES







(d) HAVE the child’s parents have never been married, they are not residing in the same household, and paternity has been established;[]NO[]YES







(e) HAS legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; []NO[]YES, WHO







(f) HAS THE PRANDPARENTin the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.[]NO[]YES, EXPLAIN

MCL 722.27b(1).







The statute creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health.

WILL THE CHILDS PARENTS OPPOSE YOUR SEEKING GRANDPARENTING TIME?[]NO[]YES, WHY















To rebut the presumption, a grandparent must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.



WHY WOULD YOUR GRANDCHILDREN NOT SEEING YOU CAUSE HARM TO THEM? DESCRIBE,



















If the grandparent does not overcome the presumption, the court will dismiss the action. MCL 722.27b(4)(b). The court may also dismiss the action if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time. MCL 722.27b(5).

To ensure that the statute is not found unconstitutional, the legislature included an alternative burden of proof. If the current preponderance of the evidence test is successfully challenged in an appellate court, the statute will convert to a clear and convincing evidence test. MCL 722.27b(4)(c).

The statute survived an as-applied constitutional challenge in Keenan v Dawson, 275 Mich App 671, 739 NW2d 681 (2007) (trial court’s decision to award grandparenting time, which was based on evidence and in consideration of statutory presumption in favor of defendant’s decision, did not improperly interfere with defendant’s constitutional right to raise child as he sees fit). The statute also survived substantive due process, procedural due process, and equal protection claims in Brinkley v Brinkley, 277 Mich App 23, 742 NW2d 629 (2007) (grandparents have no fundamental constitutional right to relationship with their grandchildren, nor do grandchildren have fundamental right to maintain relationship with their grandparents against their parents’ wishes).

If the court finds that a grandparent has met the standard for rebutting the presumption, the court will consider whether it is in the best interests of the child to enter an order for grandparenting time. In determining the best interests of the child, the court will consider the ten factors set forth in MCL 722.27b(6).



The court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following:

DESCRIBE THE FOLLOWING

(a) The love, affection, and other emotional ties existing between the grandparent and the child.







(b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.









(c) The grandparent's moral fitness.









(d) The grandparent's mental and physical health.









(e) The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.









(f) The effect on the child of hostility between the grandparent and the parent of the child.









(g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.









(h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.









(i) Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated reason.









(j) Any other factor relevant to the physical and psychological well-being of the child.









The parent of a father who has never been married to the child’s mother may not seek an order for grandparenting time unless the father completes an acknowledgment of parentage, a court issues an order of filiation, or the father is determined to be the father by a court. MCL 722.27b(2). Further, the parent of a putative father may not seek grandparenting time unless the putative father has provided substantial and regular support or care in accordance with his ability to provide the support or care.



B. Procedure



HAVE YOU SOUGHT GRANDPARENTING TIME IN THE LAST TWO YEARS []NO[]YES, DESCRIBE





Under the grandparenting time statute, a grandparent may not file more than once every two years seeking a grandparenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).

A request for grandparenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3). The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b). The motion or complaint must be accompanied by an affidavit setting forth facts supporting the requested order. MCL 722.27b(4)(a).

The grandparent is obligated to give each person with legal custody of the grandchild notice of the motion or action. Parties with legal custody of the grandchild may file opposing affidavits. Id.

A party may request a hearing on the motion or complaint, or the court may order a hearing sua sponte. If a hearing is requested, the court must order it. At the hearing, any party submitting an affidavit or a counter affidavit must be “allowed an opportunity to be heard.” Id.

The statute directs that a “fit” parent’s decision to deny grandparenting time is presumed not to create a “substantial risk of harm to the child’s mental, physical, or emotional health.” To rebut this presumption, the grandparent seeking visitation must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time does create such a risk. If the grandparent cannot overcome the presumption, the request for visitation must be denied. MCL 722.27b(4)(b).

If the grandparent successfully rebuts the presumption that the parent’s denial of visitation does not create such a substantial risk, the court moves to the second step of the two-step process. Specifically, if the court finds that the grandparent has rebutted the presumption, it must then consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that this is the case, the court must enter an order for “reasonable grandparenting time.” MCL 722.27b(6).

Alternatively, if the grandparent overcomes the presumption, the court may refer the request for grandparenting time to domestic relations mediation, governed by MCR 3.216. If the matter is referred to Friend of the Court alternative dispute resolution, but the Friend of the Court is not able to reach a voluntary resolution within a “reasonable time,” the court itself must hold a best interests hearing. MCL 722.27b(7). The new law does not suggest any time line that would satisfy the reasonable time standard.

The court must make a record of its analysis and findings, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

C. Modification or Termination of a Grandparenting Time Order



MCL 722.27b provides that a court may not modify or terminate a grandparenting time order unless it finds by a preponderance of the evidence, on the basis of facts arising since the entry of the grandparenting time order or facts that were unknown before the order, that there has been a change of circumstances of the child or the child’s custodian and that modification or termination of the existing grandparenting time order is needed to avoid a substantial risk of harm to the mental, physical, or emotional health of the child. MCL 722.27b(11). The court must a make a record of its analysis and findings regarding whether an existing grandparent visitation order should be modified or terminated, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

A court may not prevent a parent from changing a child’s domicile solely to allow the exercise of grandparenting time. MCL 722.27b(9).

Absent a showing of good cause, a grandparent is barred from filing an action or motion for grandparenting time more than once every two years. However, if the court finds “good cause,” it may permit more than one motion or action within this two-year period. MCL 722.27b(8). The court must make a record of its analysis and findings regarding whether good cause to file a premature request for visitation exists, including the reasons for granting or denying the visitation request. MCL 722.27b(12).





Posted here

05/11/2010

Terry Bankert

http://www.attorneybankert.com/