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Based upon S T A T E O F M I C H I G A N C O U R T O F A P E A L S,UNPUBLISHED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