Sunday, October 20, 2013

GRANDPARENT VISITATION STOPPED BY GUARDIAN WAS WRONG.Flint Divorce Attorney Terry Bankert 810-235-1970



#TERRY TALKS “Ideas worth sharing “


#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group WWW.terrytalks.com
DATE: 10/20/13
TIME:12:00 PM

Here the “Plaintiff alleges that the trial court erred by allowing defendant, the guardian, to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We  
(Michigan Court of Appeals) agree

Issues:

1. Motion for grandparent visitation (MCL 722.27b);

2. Whether the trial court properly allowed the intervening defendant (the guardian) to utilize the "fit parent presumption" of MCL 722.27b(4)(b) to deny grandparent visitation; Whitman v. City of Burton; In re Receivership of 11910 S. Francis Rd.; Johnson v. Recca; People v. Peltola; In re Hurd-Marvin Drain; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.; Miller-Davis Co. v. Ahrens Constr., Inc.;

3. MCL 722.27b(1)(e);

4. Whether the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b); MCL 700.5215;In re Beck; University Ctr., Inc. v. Ann Arbor Pub. Schs.; Hunter v. Hunter

COURTS INVOLVED

Court: Michigan Court of Appeals (Published)
FOR PUBLICATION,September 26, 2013 ,9:00 a.m. [2]
Case Name: Book-Gilbert v. Greenleaf ,No. 308755 ,[1]
PRINCIPAL SOURCE e-Journal Number: 55461
MICHIGAN COURT OF APPEALS Judge(s): Per Curiam – Fort Hood, Fitzgerald, and Ronayne Krause

THE LOCAL,LOWER,TRIAL  COURT  ERRED IN ALLOWING INTERVENING  GUARDIAN  TO STEP INTO A  FIT PARENTS  PRESUMPTION  WHEN DECIDING ON GRANDPARENT VISITATION.

The court held that the trial court erred by allowing intervening defendant-Tyndall (the guardian and relative of the minor child's deceased mother) to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation to intervening plaintiff-McCallister and by allowing a guardian to "step into the shoes" of a fit parent for purposes of MCL 722.27b(4)(b)."[1]

MICHIGAN COURT OF APPEALS REVERSES LOWER COURT/TRIAL COURT  ORDER  AND DENY’S THE GRANDPARENT MOTION FOR VISITATION

Thus, the court reversed the family court order [...AND...] denying plaintiff's (the minor child's paternal grandmother) motion for grandparent visitation, and remanded. "[1]

THE TRIAL COURT RELIED ON MCL 722.27b(4)9b)

The trial court held that MCL 722.27b(4)(b) provided that deference was to be given to the decision of a fit parent to deny grandparenting time, and it was presumed that the denial of parenting time "does not create a substantial risk of harm to the child's mental, physical, or emotional health.""[1]

THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT

It acknowledged that defendant was not a parent, but a guardian. Nonetheless, it held that defendant had the right to make decisions as a fit parent, the right to deny grandparenting time, and plaintiff failed to overcome the presumption."[1]

THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW

The court held that the trial court's holding was contrary to the plain language of MCL 722.27b(4)(b), which grants "fit parents" a presumption as to the denial of grandparenting time. The Legislature could have afforded a presumption to "custodians" or "guardians" of a grandchild, but did not include such language. "[1]

GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.

The court cannot read into a statute what the Legislature did not include, and permitting guardians or custodians to derive the benefit of the fit parent presumption would require it to rewrite the statute"[1]

Defendant contended that a guardianship encompasses parental responsibilities, and thus, the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b).[1]

The court held that despite the definition of guardian found in MCL 700.5215, there was no indication that the definition may be incorporated into the provisions of MCL 722.27b(4)(b).[1]

"The statutes fail to address the same subject matter, and they cannot be read in pari materia." More importantly, the court held that there are distinct differences between a natural parent and a guardian such that it would be inappropriate to read the term guardian into the text of the fit parent presumption of MCL 722.27b(4)(b) in the absence of a legislative provision.[1]

PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT

"Specifically, parents have a fundamental liberty interest in the care, custody, and control of their children.""[1]

"The presumption to a fit parent reflects the elevated status and rights a parent has to a minor child..[1]

" Further, a fit parent has a relationship to the grandparents "such that an informed decision may be made regarding the propriety of grandparent visitation. "[1]

On the contrary, a guardian or custodian of a grandchild may or may not have a relationship with the grandparent, and, in the absence of a relationship, could not make an informed decision regarding the risk of harm to a child during visitation."[1]

SOURCE
[1]
PRINCIPAL SOURCE e-Journal Number: 55461 Mostly the incited text
[2]
STATE OF MICHIGAN  COURT OF APPEALS ,ASHLEE BOOK-GILBERT,  Plaintiff,
andHEATHER MCCALLISTER,  Intervening-Plaintiff-Appellant,  FOR PUBLICATION
September 26, 2013 ,9:00 a.m. ,JERRY RYAN GREENLEAF Defendant,
And ANGELA TYNDALL, Guardian of XXXXX, Minor,  
Intervening-Defendant-Appellee.



[trb]
TERRY BANKERT comments are in BLOCK HEADLINE  or quoted [trb]



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Monday, January 28, 2013

Can you change a divorce judgement if the other side misrepresents a fact.? Yes but it is not easy.

GOOD MORNING FLINT! date: 01/29/13
-----
Can you change a divorce judgement if the other side misrepresents a fact.? Yes but it is not easy.
If you do not take an online credit counselingbefore  can you fiie for chapter 7 Bankruptcy? No.

By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970

DIVORCE
Issue:

Motion for relief from a FOC judgment; MCR 2.612(C)(1)(c); Rose v. Rose; "Misrepresentation";Titan Ins. Co. v. Hyten;

An action or conduct as a representation; M&D, Inc. v. W.B. McConkey; Requirement that a party's reliance on a misrepresentation be "reasonable";

Court: Michigan Court of Appeals (Unpublished) 12/18/12
No. 302389,Manistee Circuit Court,, LC No. 02-011013-DM
Case Name: Niell v. Schmoke
e-Journal Number: 53532
Judge(s): Per Curiam – Hoekstra, Borrello, and Boonstra

This Court reviews for an abuse of discretion a trial court’s decision to grant or deny
relief from judgment. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 404; 651 NW2d
756 (2002). An abuse of discretion occurs when the trial court selects an outcome that falls
outside the range of principled outcomes.Ewald v Ewald, 292 Mich App 706, 725; 810 NW2d
396 (2011). Further, this Court reviews a trial court’s findings of fact for clear error.
McNamara v Horner , 249 Mich App 177, 182; 642 NW2d 385 (2002). The trial court’s findings of fact are clearly erroneous if, after review of the entire record, this Court is left with the definite and firm conviction that a mistake was made.Id. at 182-183.

Holding that the trial court erred in modifying the FOC judgment on the basis of an alleged misrepresentation by the plaintiff-ex-wife, the court vacated the trial court's order granting the defendant-ex-husband's motion under MCR 2.612(C)(1)(c) for relief from the judgment.

THE TRIAL COURT ERRED IN GRANTING DEFENDANT RELIEF FROM
JUDGMENT BASED ON MISREPRESENTATION
MCR 2.612(C) provides in relevant part:
(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.
A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice.Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See alsoRose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).

A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice. Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See also Rose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).


However, the court remanded the case for further factual development to determine whether defendant may be entitled to relief from the judgment on other grounds. The dispute involved a provision in the parties' consent judgment of divorce as to the payment of uninsured medical expenses for their children.

The elements of misrepresentation are:
(1) That [a party] made a material representation; (2) that it was false; (3) that
when he made it he knew that it was false, or made it recklessly, without any
knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by [the other party]; (5) that [the other
party] acted in reliance upon it; and (6) that he thereby suffered injury. Each of
these facts must be proved with a reasonable degree of certainty, and all of them
must be found to exist; the absence of any one of them is fatal to recovery. [
TitanIns Co v Hyten , 491 Mich 547, 555; 817 NW2d 562 (2012) (internal citations
omitted)].

BANKRUPTCY

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: Case No. 12-66018

KEEGAN LEE MALLOCH, pro se, Chapter 7

Debtor. Judge Thomas J. Tucker

/
ORDER DISMISSING CASE

On November 29, 2012, Debtor filed a voluntary petition for relief under Chapter 7,
commencing this case. On December 4, 2012, Debtor filed a “Certificate of Counseling”
(Docket # 14), which states that on December 3, 2012, Debtor received “an individual [or group] briefing that complied with the provisions of 11 U.S.C. §§ 109(h) and 111.”

Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1). That
provision provides in relevant part, that
an individual may not be a debtor under this title unless such
individual has, during the 180-day period ending on the date of
filing the petition by such individual, received from an approved
nonprofit budget and credit counseling agency described in section
111(a) an individual or group briefing (including a briefing
conducted by telephone or on the Internet) that outlined the
opportunities for available credit counseling and assisted such
individual in performing a related budget analysis.

Debtor only received a credit counseling briefing four days after filing the bankruptcy petition.
With exceptions not applicable here, 11 U.S.C. § 109(h)(1) requires a debtor to obtain a credit
counseling briefing on or before the date of filing the bankruptcy petition.
Accordingly,
IT IS ORDERED that this case is dismissed.
.
Signed on December 18, 2012

Sunday, January 27, 2013

Can dad get custody after mom attempts suicide, domestic violence, mental illness?

GOOD MORNING FLINT! date 01/27/13

HYPOTHETICAL NOT CONCERNING A CURRENT OR PREVIOUS CLIENT.

Ex Spouse has a history of mental illness, four suicide attempts and is diagnosed as bipolar.

By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970

Spouse has an arrest for domestic violence with witnesses. She moved multiple times, for a total of 92 miles away. She quit her job in order to move. She was granted custody and refused husbands parenting time. Can husband get custody of his children?

The beginning point or foundation for this analysis concerns the underlying most recent order and the question What is new. I will presume the mental illness, suicide attempts and bipolar diagnosis existed before the last order. New is the domestic violence, multiple moves, 92 mile move and refusing parenting time. A petition for a change of custody on these facts would not be frivolous. Pull together as much of a record of events as your can and hire an attorney.

The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).

“A trial court may not modify or amend its previous custody judgment or orders so as to
change the established custodial environment “unless there is presented clear and convincing
evidence that it is in the best interest of the child.” MCL 722.27(1)(c). To determine the child’s
best interests, the lower court must consider the eleven factors set forth in MCL 722.23.
Bowers v Bowers , 190 Mich App 51, 54-55; 475 NW2d 394 (1991). It must expressly evaluate each
factor and state its reasons for granting or denying the custody request on the record.
Dailey v Kloenhamer , 291 Mich App 660, 667; 811 NW2d 501 (2011).” see Evan v Dickinson , Montcalm Circuit COurt 95-000895-DP, Michigan Court of Appeals 12/12/12 unpublished.