Wednesday, November 27, 2019
DID YOU KNOW.
MCL 722.27(1)(c) provides that in a custody dispute, a trial court, for the best interests of the child at the center of the dispute, may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.”
[Principle source e-journal #71713, Unpublished 11/14/19.No.349021. ]
But the court is not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c).
“These initial steps to changing custody— finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (quotation marks omitted).
The first step in the analysis is to determine whether the moving party has established proper cause or a change of circumstances by a preponderance of the evidence. Id. at 508-509.
In McRoberts v Ferguson, 322 Mich App 125, 131-132; 910 NW2d 721 (2017), this Court explained: Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.
In order to establish a change of circumstances, a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.
To constitute a change of circumstances under MCL 722.27(1)(c), the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. [Citations, quotation marks, and alterations omitted.]
With respect to the issue of “proper cause,” the criteria outlined in the statutory best
interest factors, MCL 722.23, “should be relied on by a trial court in deciding if a particular fact raised by a party is a ‘proper’ or ‘appropriate’ ground to revisit custody orders.” Vodvarka, 259 Mich App at 512.
In regard to “change of circumstances,” the relevance of facts presented should also “be gauged by the statutory best interest factors.” Id. at 514. “Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.” Corporan, 282 Mich App at 605.
In Vodvarka, 259 Mich App at 512, this Court, addressing the threshold issue, observed: Obviously, trial courts must make this factual determination case by case. Although these decisions will be based on the facts particular to each case, we do not suggest that an evidentiary hearing is necessary to resolve this initial question.
Often times, the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.
MCR 3.210(C)(8) provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.
It is clear to us, and was effectively accepted by the trial court, that if the allegations set forth in plaintiff’s motion to modify custody are true, they would easily establish a change of circumstances and proper cause for purposes of revisiting the issue of custody under the statutory best-interest factors.
But the trial court found it problematic that plaintiff had not submitted any statements, affidavits, reports, or other documentary evidence to support the allegations, let alone evidence that was current and relevant.
The motion to modify custody was not verified, nor did plaintiff supply her own affidavit. MCR 3.210(C)(8) allowed the trial court to require “an offer of proof or otherwise” in relation to deciding whether to order an evidentiary hearing.
Under the circumstances of the case and given the remarks made by the trial court when ruling on the motion, the court’s hesitation and resistance at giving any weight to the allegations in plaintiff’s motion was plainly driven by the four CPS investigations instigated by plaintiff that resulted in determinations that allegations of abuse by defendant could not be substantiated.
The lack of substantiation, again and again, could reasonably call into question plaintiff’s motives and credibility on all matters.
The trial court appeared more than open to further considering a motion to modify custody if plaintiff would come forward with supporting documentary evidence, explaining why the court took the unusual step of denying the motion without prejudice.
Indeed, the record and the CPS history support the trial court’s decision to deny the motion to modify custody simply on the-1970 basis that plaintiff did not provide supporting documentation on the threshold issue of change of circumstances or proper cause."
Presented here by Terry Bankert Flint Divorce Attorney 810-235-1970 FlintFamilyLaw.com
Saturday, November 23, 2019
MODIFICATION OF CHILD SUPPORT
In this economically hard time parents may need to modify their child support. Sometimes the original order called for no child support by agreement of the parties.
“ While it is true that a court can generally only modify orders for child support upon a showing of a change in circumstances justifying the modification, see MCL 552.17; Aussie v Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990), “[w]hen a court order does not provide for child support, such maintenance may later be provided by the court and does not depend upon a change of circumstances,” Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989).”
“When properly motioned for a change in child support the Court may deny the motion. The question then is has “...trial court correctly decided that it should not modify its previous child support order and that the parties should be held to their agreement that defendant not pay child support. MCL 552.605(3) states that a court is not prohibited “from entering a child support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.” (Emphasis added.)”
“ MCL 552.605(2) states: (2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519.”
“ The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:
(a) The child support amount determined by application of the child support formula.
(b) How the child support order deviates from the child support formula.
(c) The value of property or other support awarded instead of the payment of child support, if applicable.
(d) The reasons why application of the child support formula would be unjust or inappropriate in the case.”
“In Burba v Burba, 461 Mich 637, 644; 610 NW2d 873 (2000), our Supreme Court held that “the criteria [in MCL 552.605(2)(a)-(d)] for deviating from the formula are mandatory.” 4 The Burba Court emphasized that “[t]he importance the Legislature attached to courts carefully articulating these factors when deviating from the formula cannot be underestimated, for the Legislature prescribed their use when courts deviate from the formula in no less than eight different sections of the Michigan Compiled Laws.” Id. “To impress upon the courts the gravity of deviating from the formula, the Legislature has required them to meticulously set forth these factors when deviating.” Id. at 645-646. “
“Thus, as required by MCL 552.605(2), when deviating from the formula, the trial court fulfills its statutory duty only when the court has articulated its rationale in accordance with subsection 2(a) through (d).” Peterson, 272 Mich App at 517. “ [Source and Unpublished Michigan Court of Appeals,11/14/19, case e-journal, #71700 Ncheugium v Tegadjourfrom Saginaw Circuit Court.]
If you have additional questions about Divorce, child support or other Family Court Issues Please call Terry R. Bankert Attorney, 810-235-1970
Monday, April 08, 2019
HOW TO CHANGE THE LEGAL RESIDENCE OF A CHILD AFTER DIVORCE.
Standard for Change of Legal Residence Motions
Presented here by Terry Bankert Flint / Genesee County MI Family Law Lawyer (810) 235-1970, www.attorneybankert.com.
§3.27 Where the court is called on to approve a change of legal residence over the other parent’s objection, MCL 722.31(4) lists five factors to be considered, with the directive that the court’s primary focus is on the child:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
MCL 722.31(4) only requires that a court consider each listed factor and does not require a statement of its factual findings and conclusions with each factor as long as they were considered adequately enough to facilitate appellate review under MCR 3.210(D)(1). Yachcik v Yachcik, 319 Mich App 24, 900 NW2d 113 (2017).[JBB 3.]
A court deciding a change of legal residence motion should first decide whether the movant has shown by a preponderance of the evidence that the change is warranted based on MCL 722.31(4). Rains v Rains, 301 Mich App 313, 326–327, 836 NW2d 709 (2013), criticized on other grounds by Grange Ins Co v Lawrence, 494 Mich 475, 835 NW2d 363 (2013).[JBB 3.]
If the movant meets this burden, the court must decide if an established custodial environment exists. 301 Mich App at 327. If the court finds that there is an established custodial environment, it must next decide whether the change of residence would alter that environment. Id. at 328. If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.” Id. Caselaw supports that all of these issues may be dealt with in one evidentiary hearing. See Rains; Iwanska v Nielsen, No 251396 (Mich Ct App Mar 23, 2004) (unpublished).[JBB 3.]
Presented here by Terry Bankert Flint / Genesee County MI Family Law Lawyer (810) 235-1970, www.attorneybankert.com.
Friday, April 05, 2019
Monday, March 18, 2019
FYI “Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons.”Source Michigan Family Law Benchbook, Ch 2 , Icle 2nd ED 2006
“ Separate maintenance may allow both parties to have continued health care coverage, but some employers and heath insurance providers treat an action for separate maintenance as a triggering event disqualifying a nonemployee spouse from continued health insurance coverage. This is not uniformly applied by either employers or health insurance providers.”
Presented here by Terry Bankert Flint Divorce attorney (810)-235-1970, www.attorneybankert.com
“An action for separate maintenance is filed in the same manner and on the same grounds as a divorce. MCL 552.7. Either the plaintiff or the defendant must have resided in the state for at least 180 days and in the county of filing for at least 10 days immediately preceding the filing of the complaint. MCL 552.7(1), .9(1). Both of these residency requirements are jurisdictional and must be met on the date of filing. If the requirements are not met, the action may be dismissed or the judgment set aside. Lewis v Lewis, 153 Mich App 164, 395 NW2d 44 (1986) (circuit court lacks jurisdiction in separate maintenance action if neither party met residency requirement before filing). See chapter 1 for a complete discussion of the procedural requirements for a divorce.”
“When the matter is concluded, the parties are still technically married, but the marital property may be divided, MCL 552.19, and the court may order support for a spouse who requires it, MCL 552.23(1).”
“A separate maintenance action will result in a divorce judgment if the defendant files a counterclaim for divorce and the statutory grounds are established. MCL 552.7(4)(b).”
“ If a party wishes to divorce after a final judgment has been issued in a separate maintenance action, the party should file an entirely new cause of action. Although many issues will already have been decided and are enforceable under the judgment, any remaining issues like dissolution of the marriage should occur under the new action.”
“In Kresnak v Kresnak, 190 Mich App 643, 476 NW2d 650 (1991), even though the husband died before the entry of the judgment, a property settlement agreement in a separate maintenance action was enforced where the parties had placed it on the record and it had been generally approved by the court. The general rule that the divorce court lacks jurisdiction to render a divorce after the death of one of the parties did not apply. The issue was not the severing of the relationship, but the enforcement of a contractually binding agreement. Id. at 649–650.”
“MCL 700.2801(1) of the Estates and Protected Individuals Code excludes an individual from surviving spouse status when that individual is divorced from the decedent or the marriage has been annulled. A decree of separation does not terminate the status of husband and wife and is not a divorce for purposes of MCL 700.2801(1). However, MCL 700.2801(2)(c) provides that a surviving spouse does not include “[a]n individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.” Although a judgment of separate maintenance does not terminate the status of husband and wife, it is a court proceeding “purporting to terminate all marital property rights.” But see §2.4(discussing same-sex marriage after Obergefell v Hodges, 576 US ___, 135 S Ct 2584 (2015)).”
“Unless it provides to the contrary, a waiver of “all rights” in the property or estate of a spouse or a complete property settlement entered into after the marriage
Posted by Terry Ray Bankert at 12:18 PM