MOTHER WINS CUSTODY OF A CHILD.
Flint Divorce attorney presents here several family law and divorce Issues on child custody decisions. here mother returned to Lebanon to pursue her education leaving the child with a non English speaking father who denied her parenting time when she returned. What was he thinking? Was this a culturally driven decision on his part?
1.Whether an established custodial environment (ECE) existed with both parties; Mogle v. Scriver; MCL 722.27(1)(c);
2.Effect of a custody order; Berger v. Berger;
3.The trial court's factual findings on the statutory "best interest" factors (MCL 722.23); Factors (b)-(d), (f), (k), and (j);
4."Hearsay"; Harmless error;
5.Whether there was sufficient evidence of a "change of circumstances" to warrant a change in the prior custody order; Brausch v. Brausch; Vodvarka v. Grasmeyer
This post reviews the decision of a Court: Michigan Court of Appeals (Unpublished 08-12-10)
Case Name: Hammouda v. Mourad
e-Journal Number: 46597
Lower County is Wayne Circuit Court ( Divorce Court ) no. 01-137186-DM
Judge(s): Per Curiam - Wilder, Cavanagh, and Saad
LOWER COURT GOT IT RIGHT
The Wayne County Divorce Court the trial court did not err in ruling that an ECE existed with both parties, its factual findings on the challenged best interest factors were not against the great weight of the evidence, and its ruling that there was a change of circumstances warranting an evidentiary hearing to reconsider the prior custody order was also not against the great weight of the evidence.
DID YOU KNOW!
A trial court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests. Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). A “custodial environment of a
child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). Courts should also consider “[t]he age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship[.]” Id.
Thus, the court the Michigan Court of Appeals affirmed the Wayne County Divorce trial court's order granting the plaintiff-mother's motion to change custody of the parties' minor child.
WHO HAD THE CUSTODIAL ENVIRONMENT? DAD SAYS HIM
The defendant-father argued that an ECE existed only with him due to the December 2006 order awarding him physical custody and because the child lived with him from December 2006 until the trial court entered its order changing custody in December 2009.
Defendant was awarded physical custody of the child in December 2006 only because plaintiff intended to live in Lebanon for a period of time to attend school. Plaintiff did not immediately seek to regain custody of the child when she returned from Lebanon because the child appeared to be doing fine and did not complain about living with defendant at that time.
WHAT IS IN THE ORDER DOES NOT CREATE THE CUSTODIAL ENVIRONMENT, ITS WHAT IS HAPPENING WITH THE CHILD THAT CREATS THIS ENVIRONMENT.
However, the court noted that a custody order, in and of itself, does not establish a custodial environment and an ECE may exist absent a custody order.
MOM REALLY HAD CUSTODY.
The record showed that the child looked to plaintiff for guidance and parental comfort.
The child had lived with plaintiff her entire life until plaintiff left the country in December 2006.
Thus, the record showed that plaintiff provided care, guidance, and love for the child over a significant period of time and that their relationship was characterized by permanence, security, and stability.
The court also rejected defendant's challenges to the trial court's findings on best interest factors (b)-(d), (f), (k), and (j), concluding, inter alia, that nothing in the record showed that plaintiff lacked the capacity or disposition to provide the child with clothing, food, shelter, or other material needs and that the evidence clearly showed that defendant was unwilling to encourage and facilitate a close relationship between the child and plaintiff.
THERE HAS TO BE A CHANGE IN CIRCUMSTANCES
The trial court also ruled that three factors constituted a change of circumstances -
(1) plaintiff's return to the U.S.,
(2) defendant's refusal to allow parenting time except on alternate weekends, and
(3) the child's failing grades and the fact that neither defendant nor his current wife was able to help the child with her schoolwork.
MOM’S RETURING TO THE COUNTRY WAS THE CHANGE!
The court concluded that plaintiff's return after a one-year absence and her desire to have a normal mother-daughter relationship with her child was a material change that occurred after entry of the December 2006 custody order …
FATHERS DENIAL TO MOM HER PARENTING TIME COST HIM CUSTODY.
and defendant's refusal to permit plaintiff to exercise parenting time could have significantly affected the child's well being.
UNDER DADS WATCH THE CHILDS GRADES DECLINED.
The child's decline in grades and school attendance was also a material change that occurred since the December 2006 order.
The record shows that, while living with defendant, the child did very poorly in school and received several failing grades. Defendant admitted that neither he nor his current wife, Iman, is able to help the child with her homework because they cannot read English. He also admitted that he hired a tutor to help the child after it was recommended that he do so three weeks before the evidentiary hearing and that, since then, her grades had improved.
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