DNA MAY PROVE YOU TO BE THE FATHER BUT DOES NOT GUARANTEE CONTACT WITH YOUR CHILD.

GOOD MORNING FLINT!






Date12/18/2011



By Flint Divorce Bankruptcy Attorney Terry Bankert. Downtown Flint Lawyer 235-1970 http://www.attorneybankert.com/

FLINT OR MICHIGAN FATHERS CHILD CUSTODY AND PARENTING TIME RIGHTS

Michigan Child Custody and Parenting time Law keeps Matt Dykema from seeing his young daughter and having child custody and parenting time, he cannot be the father that DNA says he is.[see 1]
http://goodmorningflint.blogspot.com/


FATHERS HAVE A VARIETY OF PRESSURES WHEN THEY TRY TO SEE THEIR CHILDREN

FOR INSTANCE - Kate Gosselin shares custody of her eight kids with their father Jon Gosselin . While a divorce can be messy, it is always encouraging when the parents find a new partner who is willing to, not only accept them, but also their children. Apparently Jon has found that and if a new report is to be believed, Kate is slightly jealous that her kids have taken so well to his girlfriend.[4]

IT JUST FEELS HORRIBLE AND UNFAIR THAT A CHIULD DOES NOT GET TO KNOW THEIR BIOLOGICAL FATHER IF HE STEPS FORWARD UNDER MICHIGAN LAW!


Good Morning Flint! is the daily blog of Flint Divorce lawyer Flint Bankruptcy Attorney Terry Ray Bankert 810-235-1970 If you have legal question call or contact through http://www.attorneybankert.com/

Under Flint Divorce and Michigan divorce and child custody Law today the current husband is presumed by the law to be the “father” of a child when the married party may not have had contact for years. Is that fair?

The Biological Flint or Michigan father can not even get his case heard in a Michigan Family Law Court. The plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). This requirement frequently creates a problem of standing if a man seeks to establish his paternity when the mother was married to another person during any part of the pregnancy.[2]

see here; http://goodmorningflint.blogspot.com/2011/12/did-you-know-that-if-dna-shows-you-to.html

WHAT IF DNA PROVES HE IS THE FATHER

A DNA test proves Matt Dykema is the girl's father, but the baby's mother was married to another man when the child was born. The two have since divorced.[1]

CHILD BORN IN THE MARRIAGE IS OF THE MARRIAGE

News articles say that A 1956 Michigan law says a child born during a marriage is a product of the marriage. Judges follow that law when deciding custody issues. It gives the ex-husband more rights than the biological father.[1]



More specifically the rights of a biologoical father not married to the mother to see the child do not exist in Michigan. The Child Custody Act of 1970, MCL 722.21 et seq., is no longer used to determine paternity. A putative father may not seek custody or parenting time under the Child Custody Act unless there is first an acknowledgment of paternity or an order of filiation under the Paternity Act. Hoshowski v Genaw, 230 Mich App 498, 584 NW2d 368 (1998); Afshar v Zamarron, 209 Mich App 86, 530 NW2d 490 (1995).[2]



DID YOU KNOW -In divorce proceedings, the general rule in Michigan is that the court does not have the power to litigate the rights of persons other than the husband and the wife. Yedinak v Yedinak, 383 Mich 409, 175 NW2d 706 (1970). In addition, the authority of the court is purely statutory, Flynn v Flynn, 367 Mich 625, 116 NW2d 907 (1962), and no statute provides for determination of the paternity of a third party as part of a divorce action, Pruitt v Pruitt, 90 Mich App 230, 282 NW2d 785 (1979). However, the court may determine the paternity of the husband during such a proceeding. Serafin v Serafin, 401 Mich 629, 258 NW2d 461 (1977); Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987). A court must have in personam jurisdiction over the husband to make a paternity determination pursuant to a divorce decree. Gonzales v Gonzales, 117 Mich App 110, 323 NW2d 614 (1982).[3]

MICHIGAN PRESUMES THE CHILD TO BE OF THE HUSBAND AND KEEPS ALLEGED BIOLOGICAL FATHERS OUT.

According to statute and caselaw, there is a strong presumption that any child conceived or born to a married couple before commencement of a suit for divorce is legitimate; this presumption may be rebutted only by clear and convincing evidence. Raleigh v Watkins, 97 Mich App 258, 293 NW2d 789 (1980); Johnson v Johnson, 93 Mich App 415, 286 NW2d 886 (1979). Michigan courts allow a husband and wife to testify regarding a child’s paternity. Serafin. [3]



A finding of fact in a divorce decree that a child was born of the parties’ marriage establishes the child’s paternity. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986). Once a child is determined to be a child of the marriage in a divorce judgment, the doctrine of res judicata bars relitigation of paternity, even if the issue was not contested in the divorce. In re Cook Estate, 155 Mich App 604, 400 NW2d 695 (1986). In Cook, a mother whose deceased child was declared to be a child of the marriage in the divorce judgment was barred from asserting in a subsequent proceeding that her former husband was not the child’s biological father. In Rucinski v Rucinski, 172 Mich App 20, 431 NW2d 241 (1988), a father’s attempt to deny paternity of a child born during a marriage that ended in divorce was barred by res judicata. Since he had not denied paternity during the divorce proceedings, the divorce judgment and support order constituted an adjudication of paternity.[3]

IN DYKEMA MOM THEN DIVORCED AFTER THE BIRTH, EX HUSBAND WILL NOT GIVE UP HIS RIGHTS.

Matt Dykema and his attorney have requested the woman's ex-husband relinquish his rights but, so far, he has refused. It has Dykema and his Muskegon attorney Chris Houghtaling looking to Lansing for help -- and they might get it.[1]

BILL PENDING TO GIVE BIOLOGICAL FATHER RIGHTS

In December, the Michigan Senate unanimously approved four bills that would update the old law. It's the work of Senator Rick Jones, a Republican from Eaton Rapids. [1]

JUDGES TO HAVE MORE FLEXIBILITY

Jones says his legislation would allow judges more flexibility to hear and rule on cases like the one in Ottawa County, ultimately allowing them to make decisions based on what's best for the children.[1]

LEGISLATURE TO ARGUE ISSUE IN 2012

The House Judiciary Committee is expected to take up the bills in 2012. [1]

WHAT THE FATHER NEEDS IS AN ORDER OF PATERNITY

The stated purposes of the Michigan Paternity Act (Paternity Act), MCL 722.711 et seq., are to confer on circuit courts jurisdiction over proceedings to compel and provide support of children born out of wedlock; to prescribe the procedure for determining such liability; to authorize agreements for furnishing such support and to provide for enforcement; and to prescribe penalties for the violation of certain provisions of the Paternity Act. Most paternity actions in Michigan are brought under the Paternity Act. If paternity is not voluntarily established, the party seeking a finding of paternity must file suit in the family division of the circuit court. The mother, the alleged father, or the Department of Human Services (DHS) may bring the action. Genetic testing is available as a valuable and objective means of resolving paternity cases before trial. If a determination of paternity is made, the court must enter an order of filiation. The order of filiation must provide for the support of the child, reimbursement of the medical expenses incurred in the child’s birth, health care insurance coverage when it can be obtained at a reasonable cost, and support for the period before the order was entered.[2]

The purpose of the Paternity Act is to provide for support of children born out of wedlock. Van Laar v Rozema, 94 Mich App 619, 288 NW2d 667 (1980); Tuer v Niedoliwka, 92 Mich App 694, 285 NW2d 424 (1979); Smith v Robbins, 91 Mich App 284, 283 NW2d 725 (1979); Boyles v Brown, 69 Mich App 480, 245 NW2d 100 (1976). The act confers jurisdiction on the circuit courts to compel and provide support for children born out of wedlock, to set forth procedures to determine liability, to authorize agreements providing for support and enforcement of such agreements, and to prescribe penalties for violation of certain provisions of the act. MCL 722.711 et seq.[2]



722.714 Paternity proceeding; parties; venue; action not required; commencement of action; statute of limitations; initiating and conducting proceedings; utilization of child support formula; verification of complaint; charge; summons; default judgment; genetic paternity testing; next friend or guardian ad litem; rights of indigent defendant; order of filiation.


SOURCES THIS ARTICLE

[1]
http://www.wzzm13.com/news/article/190315/2/Biological-father-seeks-help-gaining-parental-rights

[2]

Michgian Family Law ch 21 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=21

llast updated 12/09/2011



[3]



http://www.legislature.mi.gov/(S(0sju2nu33jxa5145ihib0x55))/mileg.aspx?page=getobject&objectname=mcl-722-714






[4]



http://celebs.gather.com/viewArticle.action?articleId=281474980922294

FLINT CUSTODY LAWYER 810-235-1070 POSTS ,DAD HAD CUSTODIAL ENVIRONMENT OF CHILD BEFORE JAIL, AND AFTER JAIL HE MAY GET CUSTOY NOW.

Issues presented by Flint Divorce Lawyer Terry R. Bankert 810-235-1970:


1.Custody;

2.Whether an "established custodial environment" (ECE) existed with the plaintiff-father; MCL 722.27(1)(c); Berger v. Berger; An established custodial environment exists 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.
The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
considered. [MCL 722.27(1)©).]


“An established custodial environment is one of significant duration in which a parent provides
care, discipline, love, guidance, and attention that is appropriate to the age and individual needs
of the child.” Berger, 277 Mich App at 706. If an established custodial environment exists with
one parent or with both parents, a trial court may not change the custodial environment unless
there is clear and convincing evidence that a change in the custodial environment is in the child’s
best interests. MCL 722.27(1)(c); In re AP, 283 Mich App 574, 601-602; 770 NW2d 403
(2009). However, if no established custodial environment exists, the trial court may change
custody or enter a custody order if a preponderance of the evidence establishes that the change
serves the child’s best interests. Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345
(2009), aff’d 486 Mich 81 (2010).

3.Consideration of the reasons behind the custodial environment; Treutle v. Treutle;

Because an established custodial environment existed with plaintiff at the time of trial,
the trial court could only change the custodial environment if there was clear and convincing
evidence that such a change was in the children’s best interest. MCL 722.27(1)(c); In re AP, 283
Mich App at 601. The trial court’s use of the preponderance of the evidence standard,
appropriate only where there is no established custodial environment, Pierron, 282 Mich App at
245, was clear legal error. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).

4.Use of the preponderance of the evidence standard; In re AP; Pierron v. Pierron; Fletcher v. Fletcher;

5.The trial court's findings on statutory "best interest" factors (c) & (f); MCL 722.23; Corporan v. Henton

—SOURCE

CASE: Court: Michigan Court of Appeals (Unpublished 03/22/2011),Case Name: LXXXX (DAD PLAINTIFF)v. CXXXXXXX (MOM DEFENDANT), e-Journal Number: 48441,Judge(s): Per Curiam – Shapiro, Hoekstra, and Talbot No. 298058, DIVORCE Gladwin Circuit Court, LC No. 2009-004709-DS, Flint Divorce Attorney Terry R. Bankert 810-235-1970 comments CAP’S or citer [trb] See: http://www.attorneybankert.com/

—FACTS AND LAW

FACT SUMMARY OF THIS CASE :The court held that the trial court used the wrong standard in deciding the plaintiff-father's custody request because its finding that the children did not have anESTABLISHED CUSTODIAL ENVIRONMENT ( ECE) with him was against the great weight of the evidence. Thus, the court, MICHIGAN COURT OF APPEALS, reversed the GLADWIN trial court's order awarding plaintiff and the defendant-mother joint legal custody and defendant sole physical custody of the parties' children, and remanded.

DOMESTIC CASE OVER VIEW

WHAT HAPPENS WHEN THE COURT FINDS THERE IS NO CUSTODIAL ENVIRONMENT?

The GLADWIN trial court found that an ECE did not exist with either party.

COURT REVIEWED TWO TIME PERIODS

The trial court divided its custodial environment analysis into two time periods -

BEFORE FATHERS INCARCERATION

(1) from 6/08 to 7/09, the period before plaintiff's incarceration when he, defendant, and the children primarily resided in one household and

AFTER FATHERS INCARCERATION

(2) from 7/09 to the time of trial, the period after plaintiff's incarceration when he and the children lived together and defendant lived in another city.



GLADWIN FOUND BEFORE INCARCERATION MOM HAD ECE

The trial court found an ECE existed with defendant before plaintiff's incarceration, and this ECE was extinguished after his incarceration.

DAD NEVER HAD ECE SO PREPONDERENCE USED

The trial court concluded that an ECE never existed with plaintiff and thus, used the preponderance of the evidence standard to determine the children's custody.

COURT RELIED ON THESE FCATS AS PRESENTED

As to time period (1), the court concluded that defendant's testimony was that both she and plaintiff provided the "day-to-day care" for the children. Plaintiff testified that he primarily took care of them, giving them baths, cooking them dinner, taking them to the doctor, doing their laundry, buying them clothes, and playing with them. Plaintiff testified that during the parties' August-February separation period, the children lived with him four to five days a week. Defendant indicated that during that period, she had the children every other day during the week and every other weekend.

COURT OF APPEALS VS GLADWIN COURT DIFFERENCE IN CONCLUSION

Based on the parties' testimony about time period (1), the MICHIGAN COURT OF APPEALS court held that the GLADWIN trial court's finding that an ECE existed with defendant but not with plaintiff was against the great weight of the evidence.

MICHIGABN COURT OF APPEALS RELIED ON THE FOLLOWING

As to time period (2), the testimony showed that plaintiff lived with the children and his mother while defendant lived in another city. Plaintiff testified that he had no problems raising the children in defendant's absence. He continued to cook for them, do their laundry, and get them ready for school. They participated in school and outdoor recreational activities together, and he took them to medical appointments. Defendant saw the children much less frequently than plaintiff during this period.

DAD HAD ECE EXCEPT DURING INCARCERATION

The court concluded that in making its findings as to time period (2), "the trial court improperly concerned itself with the reasons behind the custodial environment." Without considering the reasons behind the custodial environment, the court held that the evidence showed that an ECE existed with plaintiff. Except during his incarceration (when the children were primarily cared for by his mother), "plaintiff consistently provided the care, discipline, love, guidance, and attention that the children required."

---END FAMILY LAW DISCUSSION
If you have questions about bankruptcy see http://www.nojokebeingbroke.com/

DIVORCE FLINT ,GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970

DIVORCE FLINT ,GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970




TODAY THE KEYWORDS FOR A RESPONSIBLE DIVORCE ARE “HOW TO FILE FOR DIVORCE IN MICHIGAN”



FILING FOR A DIVORC E



Initial filings. §§1.7–1.10.

The initial filing for a divorce without children includes a summons, a complaint, filing fees, and a record of divorce or annulment (some counties require filing at the time of entry of the judgment).

GENESEE COUNTY IN FLINT FRIEND OF THE COURT GETS A COPY OF YOUR DIVORCE FILING

If there are minor children or a request for spousal support, a verified statement must be served on the other party and provided to the Friend of the Court.

KIDS IN DIVORCE

The initial filing for a divorce with minor children must also include information about custody proceedings and the names and birth dates of the minor children.

DIVORCING COMPLAINT

The complaint must include the following:

The statutory grounds for divorce, without further explanation.

The parties’ complete names and their names before marriage.

Residency information.

Whether a party is pregnant.

The required case caption language (see §1.8).

Whether there are minor children of the parties or minor children born during the marriage.

The complete names and birth dates of any minors involved in the action, including minor children of the parties and all children born during the marriage.

Whether there is property to be divided.

If a request for protection of property is made, facts sufficient to support the relief requested.

If spousal support is requested, a showing of the need for support and the other party’s ability to pay.

If there are minors or a request for child support, whether any Michigan court has continuing jurisdiction over the minor and, if so, the court and file number.

If custody of a minor is to be determined, the following must be included in the complaint or in an attached affidavit: (1) the child’s present address, (2) places where the child has lived within the last five years, (3) names and present addresses of persons with whom the child has lived during that period, (4) whether the party has participated in other litigation concerning the custody of the child in Michigan or elsewhere, (5) whether the party knows of a proceeding that could affect the current child custody proceeding, and (6) whether the party knows of a person who is not a party to the proceedings who has physical custody of the child or claims custody or parenting time rights.

Filing fees may be waived. Fees and costs must be waived or suspended for persons receiving public assistance and indigent persons. The judge may hold a hearing to determine if the person is indigent. If the affidavit of indigency is not disputed, the waiver is mandatory.



Service. §§1.13–1.15.

Service is as provided in the general rules for service, with a copy to the Friend of the Court if there are minor children, a party is pregnant, or support is requested.

If there is a nonresident defendant and jurisdiction is under the long-arm statute, service is made as on a resident defendant. If jurisdiction is acquired by personal service with an order for appearance and publication, specific proofs are required (see §1.13).

Requirements for alternative service—see §1.14.

Requirements when a spouse is in the armed services—see §1.16.



If you have family law/divorce question call for a free consultation Attorney Terry Bankert 235-1970 or reach him through http://www.attorneybankert.com/


FAMILY IN ECONOMIC DISTRESS try his informational site http://www.nojokebeingbroke.com/
 if you have bankruptcy questions.







Principal source

Michigan Family Law Benchbook ch 1 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=01
 (last updated 04/01/2011

FLINT DIVORCE ATTORNEY,FLINT DIVORCE LAWYER POST ON PROPERTY SETTLEMENT, Terry R. Bankert 810-235-1970

FLINT DIVORCE ATTORNEY,FLINT DIVORCE LAWYER POST ON PROPERTY SETTLEMENT, Terry R. Bankert 810-235-1970



MOM GETS PRIMARY PHYSICAL CUSTODY?



The APPELLATE court held that the DIVORCE trial court did not err in its division of the parties' real and personal property and its award of primary physical custody of the parties' child to the plaintiff-wife.



Issues PRESENTED HERE:

A.Divorce;

B.The trial court's findings of fact; McDougal v. McDougal; Draggoo v. Draggoo; Holmes v. Holmes;

C.Binding effect of property settlements reached through negotiations and agreement by the parties; Keyser v. Keyser;

D.Abandoned issue; MCR 7.212(C)(7); McIntosh v. McIntosh; Custody; Berger v. Berger; Stipulation; Dick v. Dick

__________________________________________/

SOURCE Court: Michigan Court of Appeals ,Case Name: TXXXXX v. TXXXXX,e-Journal Number: 48366,Judge(s): Per Curiam – Gleicher, Whitbeck, and Owens UNPUBLISHED March 15, 2011, No. 296949,Allegan Circuit Court, LC No. 07-042486-DM.

__________________________________________/



HUSBAND TELLS THE COURT YHEY DID NOT DO IT RIGHT



The defendant-husband challenged the trial court's disposition of the parties' personal and real property, arguing, inter alia, that the trial court failed to find and take into account when disposing of the martial property that plaintiff did not maintain the status quo and the trial court erred in giving plaintiff the property adjacent to the marital residence.

________________________________________/

This article posted by Flint Divorce Attorney Terry R. Bankert 810-235-1970. Article has been modified and written in SEO format. Posters comments in CAP or cited [trb]. Questions contact http://www.attorneybankert.com/


________________________________________/



DIVIDED PROPERTY SHOULD BE EQUAL!

He also contended that the trial court's division of marital personal property was not equal, and the trial court's disposition of the parties' personal property was erroneous because plaintiff's personal property appraisal was improper.

IT WAS AN AGREEMENT?

However, the parties stipulated on the record that they had reached a settlement regarding the division of their real and personal property.

PARTIES EACH HAD DIVORCE ATTORNEYS

Defendant was represented by counsel and indicated that he understood and agreed to the settlement.

DIVORCE COURT JUDGE INCORPORATRED THEIR AGREEMENT?

The trial court's judgment of divorce was consistent with the parties' agreement. Defendant did not allege, and the record did not indicate, the presence of fraud, duress, mutual mistake, or severe stress.

YOU CANNOT HAVE YOUR CAKE AND EAT IT TOO!

He could not stipulate to the division of property and now argue to the court that the ensuing property disposition was erroneous.



THE MICHIGAN COURT OF APPEALS SAID



“A party may not take a position in the trial court and subsequently seek redress in an

appellate court that is based on a position contrary to that taken in the trial court.” Holmes v Holmes, 281 Mich App 575, 587-588; 760 NW2d 300 (2008). Moreover, “[a] party cannot stipulate a matter and then argue on appeal that the resultant action was error.” Id. at 588. “[C]ourts are bound by property settlements reached through negotiations and agreement by parties to a divorce action, in the absence of fraud, duress, mutual mistake, or severe stress which prevented a party from understanding in a reasonable manner the nature and effect of the act in which she was engaged.” Keyser v Keyser, 182 Mich App 268, 269-270; 451 NW2d 587 (1990). “This rule applies whether the settlement is in writing . . . or . . . orally placed on the record and consented to by the parties, even though not yet formally entered as part of the divorce judgment by the lower court.” Id. at 270.



HUSBAND LOSES ARGUMENT

Affirmed.

-----END

If you have questions about divorce please contact Terry R. Bankert http://www.attorneybankert.com/

HUMBLED BY FINANCES MABEY BANKRUPTCY

Your BANKRUPTCY QUESTION will be personally answered by Flint Bankruptcy Lawyer Terry Bankert. Call 810-235-1970. Do you have questions about what will happen to your home, car and other property. Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com/

FLINT DIVORCE ATTORNEY AND CASE WHERE WIFE GETS MORE PROPERTY

Flint Divorce Attorney Terry Bankert ,810-235-1970 discusses several Issues: 1.Divorce;


2.The defendant-husband's claim that the property division was inequitable; Pickering v. Pickering; Reed v. Reed;

3.The factors in Sparks v. Sparks; Berger v. Berger; Thames v. Thames;

4Infidelity; Davey v. Davey;

4Dissipation of martial assets; Woodington v. Shokoohi



SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),

Case Name: S----- v. S-----, Livingston Circuit Court, LC No. 08-003892-DO

e-Journal Number: 48129,Judge(s): Per Curiam - Murphy, Murray, and Shapiro,

[Comments of Flint Divorce Lawyer Terry Bankert ALL CAPS or trb]



YOU HAVE A RIGHT TO APPEAL THE DECISION OF YOUR LOCAL DIVORCE COURT



A trial court’s factual findings will not be reversed unless they are found

to be clearly erroneous, meaning that, this Court is left with a definite and firm conviction that a mistake has been made. Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005).



GOOD LUCK IF YOU TRY

A trial court’s dispositional ruling should be affirmed unless this Court is left with the firm conviction that the property division was inequitable. Pickering, 268 Mich App at 7.



HIGH COURT DECISION



The Michigan Court of Appeals held, inter alia, that an unequal division of marital property is not contrary to Michigan law as long as it is based on the appropriate criteria, the trial court properly determined the situation (after a 38-year marriage) did not warrant a 50-50 property division based on the property division factors, and the trial court did not err in awarding the plaintiff-wife $150,000 in alimony in gross.

The LIVINGSTON DIVORCE trial court used its equitable powers to mold relief according to the nature of the case and did what was necessary to accord complete equity and to resolve the controversy. The MICHGIAN COURT OF APPEALS concluded that reversal was not warranted as to the division of property.

HOW DOES A COURT MAKE A PROPERTY DIVISION?

In dividing the marital property, the trial court’s opinion here addressed the property division

factors set forth in Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).

The Sparks Court stated:

We hold that the following factors are to be considered wherever they are

relevant to the circumstances of the particular case: (1) duration of the marriage,

(2) contributions of the parties to the marital estate, (3) age of the parties, (4)

health of the parties, (5) life status of the parties, (6) necessities and circumstances

of the parties, (7) earning abilities of the parties, (8) past relations and conduct of

the parties, and (9) general principles of equity. There may even be additional

factors that are relevant to a particular case. For example, the court may choose to

consider the interruption of the personal career or education of either party. The

determination of relevant factors will vary depending on the facts and

circumstances of the case. [Id. (citation omitted).]



HUSBANDS ARGUMENT-WIFE CAN WORK!

On appeal the defendant-husband argued the trial court made factual findings that were unsupported by the record - particularly that the wife might be unable to work in the future due to poor health,

HUSBAND ARGUES WIFE EQUALLY RESPONSIBLE FOR BAD INVESTMENTS

the defendant should bear the sole responsibility for bad marital investments and (indirectly) the balance on the equity line of credit,

HUSBANDS ARGUMENT- INFIDELITY NOT A BIG DEAL

and the LIVINGSTON DIVORCE trial court placed an inordinate amount of weight on his infidelity in dividing the martial assets.



…defendant complains that the trial court placed an inordinate amount of emphasis

on his affair and ordered an inequitable property distribution to punish him. A circumstance "to be considered in the determination of property division is the fault or misconduct of a party." Davey v Davey, 106 Mich App 579, 581-582; 308 NW2d 468 (1981). However, “the trial court must consider all the relevant factors and not assign disproportionate weight to any one circumstance.” Sparks, 440 Mich at 158.

HUSBAND CONTINUED AFFAIR WHILE IN COUNSELING WITH WIFE

The trial court found defendant’s affair to be significant in relationship to assessing defendant’s credibility. It is undisputed that defendant lied to plaintiff

about the existence of the affair, misled her about the termination of the affair, and participated in counseling with plaintiff while still engaging in the affair.

WIFE GETS $150,000

The court noted that the disparity in the property division was essentially created by the award to the wife of $150,000 in alimony in gross, given that the trial court otherwise evenly divided, for the most part, the marital estate.

DID YOU KNOW?

Woodington v Shokoohi, 288 Mich App 352; __ NW2d __ (2010) (when a party has dissipated marital assets absent the fault of the other spouse, the value of the dissipated assets can be included in the marital estate).



WHAT IS ALIMONY IN GROSS

If alimony, now referred to as spousal support, is either a lump sum or a definite sum to be paid in installments, it is alimony in gross, which is not truly alimony intended for a spouse’s maintenance, but rather is in the nature of a division of property. Staple v Staple, 241 Mich App 562, 580; 616 NW2d 219 (2000).

NO VALUE IN MARITAL HOME

There was no equity and was indeed negative equity in the marital home awarded to the wife, where its appraised value was surpassed by the mortgage and the balance on the home equity line of credit, which the trial court ordered the wife to pay.

ALIMONY TO PAY OFF LINE OF CREDIT

It appeared from the record that the trial court ordered the husband to pay alimony in gross so that plaintiff could use the funds to pay off the balance due on the line of credit, which nearly equaled the amount of alimony.

LIVINGSTON COUNTY DIVORCE COURT GOT IT RIGHT

On the record presented at trial, and given all of the circumstances in the case, there was no inequity in the trial court's decision. Affirmed.

DIVORCE PROPERTY DIVISION CAN BE UNEQUAL

An unequal division of marital property is not contrary to Michigan law as long as it is

based on appropriate criteria. Washington v Washington, 283 Mich App 667, 673; 770 NW2d 908 (2009). Here, the property division favored plaintiff; however, the trial court assessed the relevant factors, and the record supported such findings. Moreover, "there is no Michigan statute or caselaw that precludes outright a substantial deviation from numerical equality in a property distribution award." Id. In this case, the trial determined that the situation did not warrant a 50- 50 property division based upon the property division factors. The trial court did not err in awarding plaintiff $150,000 in alimony in gross. The trial court used its equitable powers to mold relief according to the nature of the case and it did what was necessary to accord complete equity and to conclude the controversy. Cohen v Cohen, 125 Mich App 206, 211; 335 NW2d 661 (1983).



If you have question about Divorce, custody , child support or bankruptcy call Flint Attorney Terry Bankert 1-810-235-1970

http://www.attorneybankert.com/

1st Eve & ADAM then Flint Divorce by Terry Bankert 810-235-1970

Adam and Eve  were followed  by families where matrimony turned to acrimoney  For an Adam Divorce can be a difficult process, the same is do for Eve.  If you have made that tough decision contact Flint Divorce Lawyer Terry Banket. Even in the best of circumstances, tempers may run high, and every decision can seem to be more stressful than the last. It is only human to find yourself reacting emotionally at certain stages of a divorce, but it is important to remember that your actions throughout the process can affect your familial, emotional, and financial situation for years to come. Flint Divorce Lawyer says Following are some "do's and don'ts" for the divorce process.


THE DO's

DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

DO support your children through this process. It's even tougher on them than on you. Don't make them pick sides.

DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements.

DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

DO ask your attorney if anything doesn't make sense. Your attorney works for you, and should help you understand every part of the divorce process.

THE DON'Ts

DON'T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

DON'T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

DON'T "give away" property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

DON'T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

DON’T make wedding plans with your new significant other until your divorce is finalized.

A FEW OF THE ISSUES.

180 day residency in Michigan required of one of the parties.

Friend of the Court becomes involved if there are children or spousal support is requested.

Allegations In a divorce proceeding the only allegation of the grounds for divorce the statute permits is the no-fault grounds, i.e. " there ha been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likely hood that the marriage can be preserved.

Child Custody proceedings are often part of a divorce action but they may be initiated independent of a divorce proceedings. A married parent may independently commence an action for child support as long as there is no divorce or separate maintenance proceedings.

OTHER PARTIES Generally it is beyond the jurisdiction of the divorce court to adjudicate third- party rights regarding property. An example is a car loan with both names on it. One may be ordered to pay it in the divorce but both can be sued by the lien holder.

Filing and Serving the Divorce/Dissolution Petition

The divorce complaint is a legal document that is filed in court by a spouse who seeks a divorce. This complaint informs the court of the filing spouse's (called the "petitioner") desire to end the marriage, and its filing with the court signifies the initiation of the divorce process. Once the divorce/dissolution petition has been "served" on the petitioner's spouse, it also notifies him or her that the divorce process has begun.

Contents of the Divorce/Dissolution Petition: Information and Requests

A complaint typically contains the following information:

Identification of the spouses by name and address;

Date and place of marriage;

Identification of children of the marriage;

Acknowledgment that the petitioner and/or his or her spouse have lived in the state or county for a certain amount of time prior to filing the petition;

Grounds for divorce;

Declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation, and other issues related to divorce.

A divorce complaint should be as neutral a document as possible. Inflammatory language can

open up wounds that will never heal.



Do you need help now? Call 810 235-1970 !



By Attorney Terry Ray Bankert 810 235-1970

http://attorneybankert.com/


Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/

Courts must conduct a hearing before your childs custody is changed!

PARENTS YOU HAVE A RIGHT TO A BEST INTEREST HEARING EVERY TIME A COURT CHANGES CUSTODY OF YOUR CHILD.




Flint Divorce lawyer Terry R. Bankert discusses several domestic issues :

1-The trial court's dispositional order on remand providing that the minor child's "primary residence" would be with respondent-Reid (his father) subject to parenting time with respondent-Johnson (the mother) in accordance with a mediation agreement, any future issues of custody or parenting time would be decided in the domestic section of the family court, and terminating the trial court's jurisdiction over the child in the child protective proceeding;

2- Flint Divorce Attorney Terry R. Bankert also discusses Whether the trial court erred by failing to enter its order in the related paternity case as well as the child protective proceeding; In re AP;

3.Mediation in domestic relations cases;

4. MISC:MCR 3.216(H); Fran v. Fran; Effect of the parents' use of alternative dispute resolution on the trial court's authority and obligations under the Child Custody Act (CCA); Harvey v. Harvey; MCL 722.26a(1); Whether the case should be remanded to a different judge; Balata v. Balata



Based upon S T A T E O F M I C H I G A N C O U R T O F A P E A L S,UNPUBLISHED

January 20, 2011,In the Matter of B J, Minor. No. 296273,Wayne Circuit Court

Family Divisional No. 06-461948.e-Journal Number: 47937 CAPS and [tab] are from poster Terry R. Bankert Flint Family Law Attorney.



HIGH COURT TAKES PRIMARY RESIDENCE OF THE CHILD FROM FATHER



The MICHIGAN COURT OF APPEALS again vacated the WAYNE FAMILY trial court's dispositional order, which provided that the minor child's "primary residence" would be with respondent-Reid (his father), concluding that the order effectively awarded Reid custody but the trial court again did not consider the statutory best interest factors before changing custody.

FATHERS PHYSICAL CUSTODY HAD BEEN REVERESED

In a prior appeal (In re AP), the court vacated the trial court's May 2008 order entered in a child protective case, pursuant to which the trial court terminated its jurisdiction over the child and awarded Reid physical custody.

LOCAL COURT DID NOT CONDUCT A BEST INTEREST HEARING

The court held in AP that the trial court erred because it failed to ensure that its order was entered in a related paternity case between Reid and respondent-Johnson (pursuant to which Johnson was awarded physical custody) and because the trial court effectively decided the custody issue without considering the CCA's best interest factors.

ON SECOND TRY LOCAL COURT GIVES Dad primary residence

On remand, the trial court entered the December 2009 order at issue here. As an initial matter, the court agreed with Johnson that the trial court again erred by failing to enter its order in the related paternity case as well as the child protective proceeding. While the trial court stated that future issues as to custody and parenting time were to be submitted to the domestic section of the family court that decided the paternity case, since the December 2009 order effectively decided custody and parenting time issues, it was necessary that this order also be captioned with the appropriate paternity case name and number.

ONCE AGAIN THER COURT DID NOT CONDUCT A BEST INTEREST HEARING

Further, the court held that the December 2009 order was not entered in accordance with the court's decision in AP because the trial court again effectively decided custody issues without complying with the CCA's requirements and entry of the order resulted in a conflict with the original custody order entered in the paternity case. In accordance with the court's decision in AP, the trial court could not properly enter a custody award to Reid that would survive the termination of its jurisdiction unless its decision was made in compliance with the CCA.

THE COURT USED A MEDIATION REPORT THAT DID NOT RECOMMEND ON CUSTODY ISSUE

The court also noted that while the December 2009 order was allegedly based on a mediation agreement, that agreement only addressed parenting time, not custody.

PRIMARY RESIDENCE EFFECTIVELY GAVE DAD CUSTODY WITHOUT A HEARING

The order establishing Reid's home as the child's "primary residence" subject to a parenting time schedule for Johnson led to a custody arrangement where Reid was effectively awarded physical custody of the child, contrary to the custody order in the original paternity case, but without the prior custody order ever being modified and without entry of an order formally awarding Reid custody. Vacated [ENDED ORDER] and remanded [SENT BACK TO COURT TO GET IT RIGHT].

===

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,UNPUBLISHED

January 20, 2011,In the Matter of B J, Minor. No. 296273,Wayne Circuit Court

Family Division,LC No. 06-461948.

NOTES





JUDGES MUST COMPLY WITH THE CHILD CUSTODY ACT CCA

This Court held that the juvenile court erred because it failed to

ensure that its order was entered in a related paternity action between respondents Johnson and

Reid, pursuant to which Johnson had been awarded physical custody of the child, and because

the juvenile court also effectively decided the issue of custody without considering the statutory

best interest factors in the Child Custody Act (CCA), MCL 722.23.



MEDIATION RULES

Mediation in domestic relations actions is governed by MCR 3.216. MCR 3.216(H) provides, in pertinent

part:

(5) The mediator shall discuss with the parties and counsel, if any, the

facts and issues involved. The mediation will continue until a settlement is

reached, the mediator determines that a settlement is not likely to be reached, the

end of the first mediation session, or until a time agreed to by the parties.

(6) Within 7 days of the completion of mediation, the mediator shall so

advise the court, stating only the date of completion of the process, who

participated in the mediation, whether settlement was reached, and whether

further ADR proceedings are contemplated. If an evaluation will be made under

subrule (I), the mediator may delay reporting to the court until completion of the

evaluation process.

(7) If a settlement is reached as a result of the mediation, to be binding,

the terms of that settlement must be reduced to a signed writing by the parties or

acknowledged by the parties on an audio or video recording. After a settlement

has been reached, the parties shall take steps necessary to enter judgment as in the

case of other settlements.

DOMESTIC MEDIATION IS DIFFERENT

Domestic relations mediation under MCR 3.216 differs from binding mediation in other civil

actions because mediation under MCR 3.216 is not binding, but is subject to acceptance or

rejection by the parties. Frain v Frain, 213 Mich App 509, 511; 540 NW2d 741 (1995).

ALTERNATIVE DISPUTE RESOLUTIUON MUST STILL FOLLOW THE LAW

It is well established that parents’ utilization of alternative dispute resolution does not

deprive the court of its authority and obligations under the Child Custody Act. In Harvey v

Harvey, 470 Mich 186; 680 NW2d 835 (2004), our Supreme Court held that parties cannot

stipulate to restrict a trial court’s authority to decide a custody issue.

THE CHILD CUSTODY ACT IS MENT TO GUIDE DECISION MAKING IIN CUSTODY DISPUTES.

The Court Stated:The Child Custody Act is a comprehensive statutory scheme for resolving

custody disputes. Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).

With it, the Legislature sought to “promote the best interests and welfare of

children.” Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 (1994).



CCA APPLIES IN ALL CUSTODY DECISIONS

The act applies to all custody disputes and vests the circuit court with continuing

jurisdiction. MCL 722.26.

CHILD BEST INTEREST CONTROL

The act makes clear that the best interests of the child control the

resolution of a custody dispute between parents, as gauged by the factors set forth

at MCL 722.23. MCL 722.25(1). It places an affirmative obligation on the

circuit court to “declare the child’s inherent rights and establish the rights and

duties as to the child’s custody, support, and parenting time in accordance with

this act” whenever the court is required to adjudicate an action “involving dispute

of a minor child’s custody.” MCL 722.24(1); Van, supra at 328.



THE COURTS HAVE A DUTY TO CONDUCT A BEST INTEREST HEARING

Taken together these statutory provisions impose on the trial court the duty to ensure that the

resolution of any custody dispute is in the best interests of the child. [Harvey, 470

Mich at 191-192.]



THE COURT WANTS PARENTS TO REACH AGREEMENT BUT THE COURT HAS A DUTY.

We recognize that parents sometimes reach agreements regarding custody

and visitation matters either informally through direct negotiations or through

mediation procedures made available by dispute resolution organizations. Our

decision does not restrict the ability of parties to address disputes through

alternative dispute resolution processes. We hold only that the statutory “best

interests” factors control whenever a court enters an order affecting child custody.

An initial agreement between the parties cannot relieve the court of its statutory

responsibility to ensure that its adjudication of custody disputes is in a child's best

interests.

MEDIATION AGREEMENTS ARE NOT ENFORCEABLE WITHOUT COURT ORDER

Likewise, parties must understand that a child custody determination

resulting from alternative dispute resolution processes is not enforceable absent a

court order. [Id. at 187-188 n 2.]

JUDGES REQUIRED TO MAKE SURE REFEREE CONDUCT A HEARING

See also Rivette v Rose-Molina, 278 Mich App 327, 330-333; 750 NW2d 603 (2008) (holding

that a Friend of the Court referee must consider the best interest factors in making a custody

recommendation, and the trial court must satisfy itself that the best interest factors were

considered or make its own findings regarding the factors).



YOU HAVE A RIGHT TO ASK FOR JOINT CUSTODY

Further, in accordance with MCL 722.26a(1), the court must consider an award of joint custody if requested by either parent.1



Post here by

Terry R. Bankert

Flint Family Law Attorney

http://www.attorneybankert.com/

FLINT DIVORCE LAWYER,ATTORNEY, TERRY BANKERT presents case where dad wins appeal!

FATHER WINS appeal as of right the trial court’s order adopting a recommendation by the Friend of the Court that there had been no material change in circumstances to warrant an evidentiary hearing on a request for a change in custody. The order OVERTURNED was not the result of findings on the best interest factors1 and there was no hearing on those factors.[trb]






Flint Divorce Attorney,( Lawyer ), Terry Bankert ,810-235-1970,who handles divorce , child custody and support cases discusses several Issues:

1-The defendant-father's challenge to the trial court's adoption of the FOC recommendation that there had been no material change in circumstances to warrant an evidentiary hearing on a request for change in custody;

2-McIntosh v. McIntosh;

3-The Child Custody Act (CCA); MCL 722.27(1)(c);

4-Whether the custody order at issue was a "temporary" order and could be modified on "proper cause shown or a change of circumstances";

5-Foskett v. Foskett; Vodvarka v. Grasmeyer;

6-"Temporary" custody orders are the exception to the rule that the trial court must hold an evidentiary hearing;

7-Thompson v. Thompson; Phillips v. Jordan



This presentation based on Michigan Court of Appeals (Unpublished 12/28/2010), e-Journal Number: 47755,Judge(s): Per Curiam - Murphy, Meter, and Shapiro, No. 294733,Macomb Circuit Court Family Division, LC No. 2002-005932-DS. CAP headlines or cites [trb] by Terry Bankert with the article altered for SEO.





The MICHIGAN COURT OF APPEALS held that the MACOMB CIRCUIT COURT must conduct an evidentiary hearing on the "best interest factors" and after evaluating all of the best interest factors, determine custody based upon the best interests of the child. Reversed and remanded. On remand, because an original finding concerning best interests was never issued, the parties are not precluded from offering evidence that originated prior to the entry of the interim order, but may use evidence occurring from any time.



AFTER A FINAL ORDER TO CHANGE CUSTODY REQUIRED A CHANGE IN CIRCUMSTANCES



The defendant-father appealed the trial court's order adopting the FOC recommendation that there had been no material change in circumstances warranting an evidentiary hearing on a request for a change in custody.



COURT CALLED AN INTERIUM ORDER FINAL



The trial court entered a consent judgment of support which stated that it was a "final judgment," and "resolved the last pending claim and close[d] this case."



INTERIUM IS INTERIUM NOT FINAL



Despite the "final judgment" language, the order did not contain an order of permanent custody. Instead, it contained only what was termed an "interim" provision as to custody, which provided that the plaintiff-mother "shall have sole legal and physical custody of said minor child(ren) until further order of the court."

The order also included parenting time for defendant.



THERE WAS NO TRIAL LIKE HEARING



The order was not the result of findings on the best interest factors and there was no hearing on those factors.



CHANGE IN CIRCUMSTANCES REQUIRED TO CHANGE A CUSTODY ORDER



“MCL 722.27(1)(c) provides for modification of a custody order on ‘proper cause shown’



or ‘[a] change of circumstances.’” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001), quoting MCL 722.27(1)(c) (alteration in Foskett).



WITH OUT PROVING CHANGE ,ORDER STANDS



“On the basis of this language . . . if the movant does not establish proper cause or change in circumstances, then the court is precluded from holding a child custody hearing.” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).



TEMPORARY ORDERS ARE THE EXEPTION



However, temporary custody orders are the exception to this rule. Thompson v Thompson, 261 Mich App 353, 357; 683 NW2d 250 (2004). “By definition, a temporary custody agreement is only a temporary order pending further proceedings.” Id. That is, a temporary custody order is not an original or initial order. Id. at 361-62. Therefore, this type of order is outside the scope of the Child Custody Act. MCL 722.27(1)(c). As such, a defendantmay not be denied a full evidentiary hearing just because he or she has stipulated to “temporary custody.” Thompson, 261 Mich App at 357.



EVEN WITH STIPULATIUONS THE COURT MUST HAVE A HEARING



Although defendant stipulated to the temporary order, this does not absolve the trial court of the requirement of determining the best interests of the children prior to entering a permanent order. See id. at 359 (holding that although a trial court will enforce temporary custody agreements, “parties cannot conclusively agree regarding child custody”).



JUDGE CANNOT BLINDLY ACCEPT STIPULATIONS



A trial court is not permitted to “blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000).



DAD SAID HE DID NOT HAVE TO SHOW A CHANGE IN CIRCUMSTANCES



Defendant contended because the custody order was a temporary custody order, he was not required to show proper cause or a change of circumstances before the trial court could consider a change in custody pursuant to the CCA, and hold an evidentiary hearing on the best interest factors.



The court noted "By definition, a temporary custody agreement is only a temporary order pending further proceedings." Thus, this type of order is outside the scope of the CCA.



A TRIAL LIKE EVIDENTIARY HEARING IS REQUIRED



As such, a defendant may not be denied a full evidentiary hearing just because he or she has stipulated to "temporary custody."



JUST BECAUSE THE PARTIES AGREE DOES NOT RELIEVE THE JUDGE OF HIS DUTY



Although defendant stipulated to the temporary order, this did not absolve the trial court of the requirement of determining the best interests of the children before entering a permanent order.



THE JUDGE MUST DETERMINE WHAT IS IS IN A CHILDS BEST INTEREST



A trial court is not permitted to "blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child."



Presented here by



Terry Bankert



http://www.attorneybankert.com/