Monday, April 08, 2019

Changing childs legal Residence.


Standard for Change of Legal Residence Motions
Presented here by Terry Bankert  Flint / Genesee County MI Family Law Lawyer (810) 235-1970,

§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,

Friday, April 05, 2019


Daily internet new from Flint MI USA

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,

“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