Monday, December 25, 2006


Posted here by:By Attorney Terry Ray Bankert 810 235-1970
cpsa 12/30/06

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and lawyers in Flint, Genesee County Michigan USA

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Date 12/25/06

Requirements for Marriage

The first requirements are falling in love, courtship and a personal commitment to sharing your lives together. Determining how you reach that decision is your right.

There are State requirements at the beginning. When you seek to marry you must first get a marraige license from the Genesee County Clerk located in the Genesee County Court House Downtown Flint.

You must to the county where one of you live or if you are from out of state you go to the county clerk in the county where the marraige will be performed. MCL 551.101

For minors over 16 but under 18 you must provide written consent of at least one parent or guardian of each minor.MCL 551.103 (1) There is a three day waiting period in all cases.

There is a requirement for HIV testing for each party. MCL 333.5119 (2) Times have changed
and you have a right to know.

Several persons for instance clergy and judges may marry you. MCL 551.7(1). No particular ceremony is required for the marraige to be valid. The parties simply declare, in the presence of the person solemnizing the marraige and two other witnesses that they take each other as man and wife. MCL 551.9.

Validity of Marriage

A marraige where it took place is valid everywhere, even those out of the country. A marraige that is bigamous, incestuous, or otherwise violates law of the state that it occurred in is invalid.
Common law marriages are invalid in Michigan as of 01/1/1957. But common law marriages recognized in another state are recognized in Michigan.

Secret marriages can be obtained when one of the parties is a minor or the parties request to keep the exact date of the marraige a secret. MCL 55.201

Once there is a celebration of marraige , a contract of marraige, capacity and everything else necessary for a valid marraige is presumed.

The seven year absence of a married party gives rise to a presumption of death.

If a person has been married to two different people the presumption favors the validity of the second marraige. Bigamy has to be proven.

Persons with disabilities; Incapacitated person.

Marriage is a civil contract and the parties must be capable in law of contracting. MCL 551.2 The children of such a marraige are legitimate. A court appointed next of friend may bring an action to annul the marraige on the grounds that a party was not capable of contacting. MCL 552.35

A court appointed guardian may consent to a wards marraige; a limited guardian may not consent is the ward is a minor. MCL 700.5206 (4).


In General this is a judges order that a valid marraige never took place. If this happens the court may still have to divide property and set rights of children.

An absolutely void marraige is one that is bigamous, the parties too closely related, and a person that lacks the capacity to enter a contract. Poor mental health and young of age are two common grounds for incapacity.

A marraige can be voided if either party is underage or force or fraud occurred. MCL 552.2

Common bases for fraud are:

1.For the purpose of emigrating to the United States

2.Falsely claiming a pregnancy.

3. Not tell a spouse that the other spouse could never bear children.

4. Under influence of drugs or alcohol.

5. Concealment of preference.

See generally
Michigan Family Law Benchbook Second Edition, Institute of Continuing Legal Education 2006

Posted here by:By Attorney Terry Ray Bankert 810 235-1970
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Tuesday, December 19, 2006


When parents of different faiths separate, how do courts decide whose religion the children will follow?

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By Attorney Terry Ray Bankert 810 235-1970
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When parents of different religions don't agree on whose religion the children will follow, how does a secular court?

With increasing numbers of interfaith marriages and high divorce rates, this topic is being argued in courtrooms across the country.

The results? Decisions that lack national uniformity, leaving religious parents at the mercy of a secular court's discretion.

The Rights of Church Parents vs. The Statutory Best Interests of the Child

When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, secular courts , with judges from a variety of religious backgrounds attempt to balance competing concerns, the rights of religious parents can be over looked.

On one hand, courts must protect an individual's First Amendment right to the free exercise of religion as well as a parent's right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child.

On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child. When one parent complains that the other parent's religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the parent's First Amendment and parenting rights by limiting that parent's religious activities.

The Law in Religion and Custody CasesBecause the United States Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law.

Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:

Actual or Substantial Harm.

The court will restrict a parent's First Amendment or parenting rights only if that parent's religious practices cause actual or substantial harm to the child.Risk of Harm. The court may restrict a parent's First Amendment or parenting rights if that parent's religious practices might harm the child in the future.No Harm Required.

The custodial parent's right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the non-custodial parent's religious activities, that's the end of it: The court will defer to the custodial parent's wishes.Finally, when deciding a dispute about religious upbringing, courts may consider any oral or written agreements that the couple previously made regarding this issue. However, again, how courts treat these agreements varies by state.Child Custody and Religion


Courts applying this standard will restrict a parent's religious activities only if the other parent proves that those activities cause substantial or actual harm to the child. This standard is used in many states, including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont and Washington.Some states, such as Maryland and Ohio, may use the term "actual harm" in one case and "substantial harm" in another, even when the facts are similar.

Other states treat actual harm and substantial harm as two separate standards. This may sound confusing, but in reality, the difference between the terms is minimal, and courts often use the language interchangeably. Just remember this: No matter what terminology these courts use, they all look for tangible evidence of harm to the child's physical or mental health. The cases discussed in this section provide examples of how courts following the actual or substantial harm standard may rule in various situations.

Keep in mind that these decisions do not have to be followed by courts in other states or, sometimes, in the same state that the decision came from. Munoz v. Munoz: Does exposure to two religions cause actual harm?

In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of Washington's highest court ruled that exposing children to two different religions is not harmful in and of itself, and therefore does not justify restricting a parent's religious activities. In Munoz, the divorce court awarded sole custody of the children to their Mormon mother. She sought to curtail her ex-husband, who was Catholic, from bringing their children to his church because she believed it confused the kids. However, she didn't produce any evidence that the exposure to Catholicism caused any physical or mental harm to the kids.

The Washington Supreme Court held that exposure to two religions does not automatically harm children. Because there was no evidence that the children were actually harmed, the court allowed the father to take the children to his church.Pater v. Pater: Are restrictive religious customs harmful? In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio's Supreme Court ruled that religious customs that restrict a child's social activities -- even if they separate him or her from peers or go against community standards -- are not enough to justify court intervention unless the practices harm the mental or physical health of the child.

In the Pater case, the child lived with her Jehovah's Witness mother after the parents split. A court later awarded custody to the Catholic father because of the mother's religious practices, including her refusal to celebrate holidays, associate with people outside the Jehovah's Witnesses faith, salute the flag or sing the national anthem. Ohio's highest court reversed the lower court's decision and granted custody to the mother.

The court held that the mother's religious activities -- which essentially barred her child from participating in many social and patriotic activities -- did not adversely affect the child's mental or physical health.Kendall v. Kendall: Physical acts and verbal threats justify court intervention.

In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), the highest court in Massachusetts ruled that a father's verbal threats and physical acts toward his children, which were designed to interfere with their Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights.

While the Kendalls were married, the Jewish mother and Catholic father agreed to raise their children according to the Jewish faith. The father later converted to a fundamentalist Christian faith. After Mrs. Kendall filed for divorce, the father threatened to cut off his 13-year-old son's Orthodox Jewish garments if he didn't tuck them into his pants and cut off his son's payes (the curls customarily worn by Orthodox Jewish males).

He also told his children that anyone outside the fundamentalist faith was "damned to go to hell where there will be 'weeping and gnashing of teeth.'" A court appointed doctor found that the father's actions caused mental and emotional harm to all three children. Based on this evidence, the divorce court barred the father from taking his children to church or shaving off his son's payes. It also barred him from sharing his religious beliefs, praying or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distress. The father appealed the divorce court's judgment. The Massachusetts Supreme Court agreed with the lower court and upheld the restrictions on the father's religious activities.


In a handful of states, including Minnesota, Montana, North Carolina and Pennsylvania, courts have used a different legal standard to decide cases where religion and custody collide. In these courts, a parent seeking to curtail the other parent's religious activities need not demonstrate actual or substantial harm to the child, but only that there is a risk that the child might be harmed in the future. In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court applied this standard.

In this case, the parents agreed to raise their daughter Jewish, the father's religion. After separating, the mother began taking the child to Methodist services. The father opposed the child's Methodist training and sought custody. Because the little girl had identified as Jewish since age three, the court felt that exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well being. Based on its concern that the girl might suffer harm in the future, the court gave the father sole control over the child's religious education.

Munoz and MacLagan.

These two cases demonstrate how the application of a different legal standard to similar facts may result in a different outcome. Both the MacLagan and Munoz courts were presented with the same issue -- whether the court should restrict one parent's religious practices when a child is exposed to two different religions. The Munoz court (applying the actual harm standard) refused to restrict the father's activities because the children had not yet been harmed. In contrast, the MacLagan court (applying the risk of harm standard) did restrict the mother's religious activities because it felt the child might be adversely affected in the future. Because each court can rule as it sees fit according to its own state law, there is no way to prevent such disparate results in similar cases unless the U.S. Supreme Court takes up the issue down the line.


In a few states, including Arkansas and Wisconsin, courts do not apply the actual or substantial harm standard or the risk of harm standard. Instead, these courts use a simple rule: The parent with sole legal custody has exclusive control over the child's religious education. If a dispute arises over religious upbringing, the court will curtail the non-custodial parent's religious activities and enforce the custodial parent's desires.

These courts reason that interfering with the non-custodial parent's religious activities does not violate First Amendment rights because the restrictions apply only to the time period in which the parent is with the children. At all other times, the parent is free to practice his or her religion as he or she chooses. Because a majority of states award joint legal custody (unless it would harm the child to do so), this standard doesn't often come into play. Johns v. Johns: The legal custodian calls the shots.

In Johns v. Johns, 53 Asome pp. 90, 918 S.W. 2d 728 (1996), an Arkansas court deferred to the custodial parent's wishes. In this case, the father complained that the mother, who had legal and physical custody of the children, was preventing him from visiting with his kids. The mother said she was refusing visits because he didn't take the kids to church and Sunday school. The trial court ordered Mr. Johns to bring the kids to church. The father appealed. The appellate court agreed with the trial court, holding that because the mother was the custodial parent, her desire that the kids attend church each week was paramount. Zummo v. Zummo: When joint legal custody makes a difference. Parents who share joint legal custody of children are often in a better position to convince courts to honor the wishes of both parents.

A case in point: In Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990), the divorcing couple's dispute about the religious upbringing of their children was resolved by ordering the father to take the children to Jewish services (the mother's religion) and also allowing him to bring the children to Catholic services (his religion). The court believed that because the couple shared joint legal custody, they each had the right to instill religious beliefs in their kids.
Some States follow more than one standard.In some states, like Montana and Pennsylvania, one court will use the actual harm standard and another may use the risk of harm standard or the no harm required standard. Because the United States Supreme Court has not ruled in this area of the law, state courts do not have to adhere to any one standard unless the highest court in the state (usually called that state's Supreme Court) has adopted a standard.

Parenting Agreements Regarding Children And Religion

You might think you and your partner can avoid conflict by signing a contract or making a verbal agreement about how to handle the religious upbringing of your kids. There's only one problem:

If you can't stick to the agreement yourselves, a court won't necessarily enforce it for you. Most courts reject agreements about which religion the children will follow when their folks separate. Here are the reasons they commonly use:

The agreement is vague. Often, couples make these agreements informally, prior to marriage, without considering a future divorce or separation. As a result, the agreements are vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies and other church-affiliated programs) or whether the children will be permitted to attend the other parent's place of worship during special events.

The parties have different versions of the agreement. This is often a problem with oral agreements.

The parents may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.

The agreement is too old. Courts often hesitate to bind either parent to an agreement that was made many years in the past.Courts don't want to curtail First Amendment and parenting rights.

As previously mentioned, courts are loathe to tramp on an individual's First Amendment or parenting rights. Nor do courts want to get involved in ongoing supervision of parents' compliance with an agreement; this can look to courts like excessive government entanglement in private affairs.

Not all courts dismiss religious upbringing agreements, however.

For example, in September 1999, an Indiana court ruled that a divorce settlement's terms governing the religious upbringing of the children was binding on both parties. ( Wilson v. Wilson, Ind. App. 1999, 716 N.E. 2d 486.) The short of all this is that, if you enter into an agreement about the religious upbringing of your children, it stands the best chance of being enforced by a court if it is in writing, very detailed and no more than a couple of years old.

What Does This Mean For You?

Because each state court can rule according to its own law, and the states profiled in this article can reverse their positions at any time, you may be better off settling your differences outside the courtroom. If you must resort to the court system to resolve a dispute regarding your children's religious upbringing, keep in mind the following: You stand the best chance of obtaining a decision that allows you to remain active in your child's religious education if you already have either sole or joint legal custody.

Regardless of which legal standard your state court follows, using strong language or actions which offend the other parent may result in court restrictions on your religious activities or even cause a court to award sole custody of your children to your ex. If you are afraid that your child may be harmed by your ex's religious practices, consider taking your child to a health professional.

By doing so you'll either calm your concerns or have real evidence that may help you to renegotiate with your ex. Or, if all else fails, you can use the evidence in court.

Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971)
Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992)
Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997)
MacLagan v. Klein 123 N.C. App. 557, 473 S.E. 2d 778 (1996)
Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (1996)
Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990)
Wilson v. Wilson, Ind. App. 1999, 716 N.E. 2d 486

Posted here By Attorney Terry Ray Bankert
810 235-1970
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Friday, December 08, 2006


By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

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The case discussed here, cited below with the names of the children removed, with modification for lay readability, shows the impact of religious belief in divorce proceedings .


The parties were granted a default judgment of divorce dissolving the marriage entered on July 18, 1975. Plaintiff mother was awarded custody of the parties' three minor children . Defendant father was granted rights of reasonable visitation with the children and was ordered to make weekly child support payments through the office of the Friend of the Court.

In 1978, defendant asked the court to grant him custody of the children. After an evidentiary hearing, the court ordered that custody of the parties' son, be changed to defendant but that custody of the two girls remain in plaintiff. Reasonable visitation rights were granted to both parties. Defendant's obligation to make support payments for the son was cancelled.

On October 1, 1981, the court again modified the custody decree, ordering that custody of son return to plaintiff. Defendant was ordered to resume weekly support payments for the son and was granted visitation rights with him. Defendant appeals in propria persona.


On appeal defendant raises several challenges to the lower court action. His challenges are based on his belief that the court has interfered with his constitutionally protected right to the free exercise of his religious beliefs. US Const, Am I, applicable to the states through selective incorporation into the Due Process Clause of the Fourteenth Amendment. Gitlow v New York, 268 US 652; 45 S Ct 625; 69 L Ed 1138 (1925).

Defendant asks this Court (1) to declare that the state is powerless to dissolve the parties' ecclesiastical union; (2) to order joint custody of the children; (3) to order that the children be provided Christian education and religious training; and (4) to terminate defendant's legal obligation to contribute to the financial support of his children.


In challenging the state's authority to declare a dissolution of the parties' marriage, defendant mischaracterizes the nature of the state action. The court's power extends only to dissolution of the parties' civil contract of marriage. MCL 551.2; MSA 25.2. The status of their ecclesiastical union has in no way been affected by the dissolution of their civil union. See Williams v Williams, 543 P2d 1401 (Okla, 1975), cert den 426 US 901; 96 S Ct 2220; 48 L Ed 2d 826 (1976).


With respect to the court's action concerning the parties' children, defendant challenges the state's right to determine that one parent shall have sole custody of them.

Defendant's sincere belief is that God owns all children and gives them to parents at conception.

For the state to alter this natural relationship by awarding sole custody to one parent constitutes, according to defendant, an impermissible burden on his constitutional right to exercise his religious convictions.

Defendant also argues that his religious liberty has been violated by the court's refusal to order plaintiff to continue the children's Christian education and training.

Defendant's honest belief is that Bible-based training and instruction must be an integral part of his children's daily lives.

Finally, defendant challenges the state's right to order him to provide financial support for his children while at the same time excluding him from full participation in their education and religious training.

According to defendant, both parents have the God-given right and responsibility to oversee their children's physical, educational, and religious needs. Defendant states that he is willing to continue to support his children financially but objects to the state's involvement in the matter of support.

The primacy of the First Amendment's guarantee of religious liberty is, of course, beyond debate. Also, well established is the corollary protection of the right of parents to direct the religious upbringing of their children. Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972).


When state action results in a denial of one's legitimate exercise of religious freedom, the state must show an overriding interest of the highest order to justify that action. Id."A state's interest is compelling when the end that it achieves is so vital to society that it essentially overrides the loss of the protected religious right." M I v A I, 107 Misc 2d 663; 435 NYS2d 928 (1981).

Even if a compelling secular interest is shown, the state will be permitted to intrude upon an individual's religious freedom only if alternative, nonintrusive means are not available. Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963).

In the instant case, both the sincerity of defendant's religious convictions and the burden placed on his exercise of those convictions by certain aspects of the operation of the child custody act are unquestionable. What is required, therefore, is a constitutional balancing test to determine if there is a compelling state interest to which defendant's full exercise of his religious convictions may be subordinated.

It is difficult to conceive of a more compelling or vital state interest than the welfare of minor children as it is affected by the dissolution of their parents’ civil marriage union. The care and protection of children has long been a matter of utmost state concern. The state has declared that all disputes concerning custody of children shall have preference over other civil actions and that the controlling consideration in such disputes shall be the best interests of the children. MCL 722.25; MSA 25.312(5). That the best interests of children are potentially threatened in a divorce situation cannot be gainsaid. Those best interests include inherent rights to proper and necessary support and custody and general well-being, and are matters to which the court's protective function most vitally applies. See MCL 722.24; MSA 25.312(4).


Defendant asks the Court to order joint custody of the parties' children. In order for joint custody to work, parents must be able to agree with each other on basic issues in child rearing—including health care, religion, education, day to day decision-making and discipline—and they must be willing to cooperate with each other in joint decision-making. Rolde v Rolde, 425 NE2d 388 (Mass App,1981).

If two equally capable parents whose marriage relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children. MCL 722.26a; MSA 25.312(6a).

The establishment of the right to custody in one parent does not constitute a determination of the unfitness of the noncustodial parent but is rather the result of the court's considered evaluation of several diverse factors relevant to the best interests of the children. MCL 722.23; MSA 25.312(3).

Under the circumstances of the instant case, an award of joint custody would be entirely inappropriate, and defendant does not suggest a permissible alternative to sole custody.

Obvious reasons for the breakdown of the parties' marriage relationship were their conflicting views on religion and the effect of their religious beliefs on their child-rearing preferences. It is precisely because the parties cannot agree on basic child-rearing issues that the court was obligated to determine sole custody. As noted in Hardisty v Hardisty, 439 A2d 307, 313-314 (Conn, 1981):

"The same irreconcilable differences that led to the breakdown of the marriage often spill over into significantly divergent views about child rearing. In order to minimize the disruptive impact of such conflicts upon the children of the marriage, custody may be awarded to one parent alone * * *." (Citations omitted.)


Because the state's interest in protecting the best interests of children is of paramount importance and because an award of joint custody would, in our judgment, be injurious to the children of the parties in this case, we decline to disturb the trial court's denial of joint custody.


In considering which of two parents shall be awarded custody of their children, the court must maintain its constitutionally mandated neutrality with respect to the merits of the religious beliefs of the parties. Once the purely secular decision of custody is made, the court may not interfere with the religious practices of either the custodial or noncustodial parent unless, of course, those practices threaten the children's well-being.

The court may not order the custodial parent to educate the children in a particular faith, just as the noncustodial parent's right to pursue his or her religious activities and to involve the children in those activities during legal visitation periods cannot be violated. See Hilley v Hilley, 405 So 2d 708 (Ala, 1981), Munoz v Munoz, 79 Wash 2d 810; 489 P2d 1133 (1971).

"The refusal to intervene in the absence of a showing of harm to the child reflects the protected nature of religious activities and expressions of belief, as well as the proscription against preferring one religion over another." In re Marriage of Murga, 103 Cal App 3d 498, 505; 163 Cal Rptr 79, 82 (1980).

In light of these fundamental First Amendment principles, the court properly declined to order that plaintiff continue the Christian training to which defendant wishes the children exposed. As defendant concedes, to grant his requested relief would be to entangle the court impermissibly in religious matters, the very transgression of which defendant now accuses the court.
The custody decree was based on the court's determination of the children's best interests. MCL 722.23; MSA 25.312(3). The decree was quite clearly not based on the court's consideration of the merits of the religious beliefs of the parties. The parties were given full opportunity to present evidence in support of their respective positions. Finding no abuse of discretion, clear legal error or inappropriate findings of fact, we affirm the trial court's custody determination. MCL 722.28; MSA 25.312(8).


Defendant's challenge to the state's involvement in the matter of his obligation to support his children financially is without merit. Defendant's religious beliefs do not prohibit him from contributing to the financial support of his children. Compare M I v A I, supra. On the contrary, defendant considers himself morally obligated to provide for his children's physical needs.

To the extent that defendant's attack on the order of support is based on his general aversion, on religious grounds, to the involvement of the state in matters affecting his relationship with his children, we find that the aforementioned vital interest of the state in the welfare of children is controlling.

The trial court's order returning custody of Kenneth to plaintiff, resuming weekly support payments for Kenneth, and granting defendant visitation rights is affirmed in all respects.

Fisher v Fisher118 Mich App 227, 324 NW2d 582
Submitted April 20, 1982, at Detroit.Decided July 19, 1982. Leave denied, 414 Mich 919.Docket No(s) 59552.Disposition: Affirmed.


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Thursday, November 30, 2006

I. Spousal Support, Michigan


By Attorney Terry Ray Bankert 810 235-1970
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The courts authority to award spousal support to either party is established by MCL 552.23 (1)

" Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and spo sal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case."

In other words, when the property award is insufficient to provide for the suitable support of a party and any children committed to his or her care, a court may award spousal support to that party after considering all the circumstances of that particular case.

Spousal support may be awarded on entry of a judgement of divorce or a separate maintenance action.MCL 552.23.

During the litigation in this case, a party, may request a temporary or interium order. MCL 552.13. The request is made by filing a verified motion. Notice and a hearing are required, and the order must state its effective date and wheterh its provisions may be modified retroactively by a subsequent orde. MCR 3.207 ©).

Pending entry of a temporary order, spousal support can be requested in an ex parte motion MCR 3.201 (B). An ex parte order requires a showing, set forth in a verified motion or affidavidit, that irreparable injury, loss, or damage will result from the delay required to give notice or that giving notice itself will rpecipitate adverse action before the temporary order can isue. MCR 3.207 (B).

Spousal support is determined on a case by case basis. There are computer programs that attorney have to assit in this calculation.

A recommended quick approach is:

1.find out each party’s weekly net income.

2.deduct from each paymemnts to protect marital assets, ( home, car etc..)

3.add together each party’s adjusted net income, divide by half, adjust by spousal support the partys income that is less than this half.

Following is a recent Michigan case on spousal support.

Deyo v Deyo474 Mich 952

December 15, 2005Docket No(s) 126795.Lower Court Docket No(s) 245210.

On November 10, 2005 the Court heard oral argument on the application for leave to appeal the May 25, 2004 judgment of the Court of Appeals.

On order of the Court, the application for leave to appeal is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals and REMAND this case to the Livingston Circuit Court for reconsideration of the property division portion of the judgment of divorce.

The Circuit Court properly recognized that invasion of the plaintiff's separate inherited property is permitted only if the court specifically determines that the defendant "contributed to the acquisition, improvement, or accumulation of the property[,]"MCL 552.401, or that defendant's award is insufficient for her suitable support and maintenance, MCL 552.23(1), see Dart v Dart, 460 Mich 573 (1999), and Reeves v Reeves, 226 Mich App 490 (1997).

However, the circuit court's finding was insufficient to support either statutory basis. If, upon reconsideration, the Livingston Circuit Court alters the property division, it may, if necessary, amend the spousal support award. The court may conduct additional proceedings or evidentiary hearings as it deems appropriate.

We do not retain jurisdiction.

CORRIGAN, J., dissents and states as follows:

I would deny leave to appeal.

The parties married in 1977 and remained married for 25 years before they divorced in 2001. During the marriage, plaintiff worked as a grave-digger and landscaper and made approximately $25,000 a year.

Defendant was primarily a homemaker during the marriage.
In 1994, plaintiff's father, Orville Quinney, became ill, and the parties began caring for him. In 1996, plaintiff's father moved into a new house with the parties, and plaintiff quit his job to care for his father full time.

Plaintiff was the conservator of his father's estate and apparently used those assets to substitute for his outside employment. Plaintiff's father died in 1997 and left a large inheritance 1 to plaintiff alone. The inheritance consisted primarily of securities, a bank account, and real estate in South Lyon, Howell, Warren, Roseville, and Milford.

The trial court agreed with plaintiff that some of the real estate and securities inherited by plaintiff had not been commingled with the marital estate and were part of plaintiff's separate estate. However, the court included this separate property in the marital estate for distribution purposes because the court believed that defendant's "assistance in /shared/asp/openText.asp?filePath=/mlo/michorder/M474A/O-126795.xml&pageNum=953 caring for [plaintiff's] father as well as her continuation in the strained marriage for so many years created a situation whereby she did contribute to the inherited estate."

The court awarded defendant the entire marital estate of $714,634 2 and half of a piece of plaintiff's inherited South Lyon property (the Eleven-Mile Road farm) worth $798,400. 3

The Court of Appeals affirmed in a split unpublished opinion per curiam. The majority concluded that the trial court did not clearly err in finding that the entire inherited estate should be included in the marital estate because defendant contributed to the acquisition of the inherited estate by assisting with the care of plaintiff's father.

I favor denying leave to appeal, first, because this case presents absolutely no issues of jurisprudential significance. The outcome of this case turns on its particular facts. The law regarding the division of inherited property in divorce proceedings has been thoroughly addressed by this Court. The only reason to interfere in the lower courts' rulings is to engage in error correction. Because I do not believe that the Court of Appeals decision is "clearly erroneous and will cause material injustice,"MCR 7.302(B)(5), this Court should deny leave to appeal.

Additionally, I believe that the trial court properly included the inherited assets in the marital estate for distribution purposes. First, plaintiff commingled the inherited property with the marital property. "[P]roperty received by a married party as an inheritance, but kept separate from marital property, is deemed to be separate property not subject to distribution." Dart v Dart, 460 Mich 573, 584-585 (1999) (emphasis added). "[T]he marital estate . . . include[s] the appreciation in value of the husband's separate assets that he actively managed during the marriage . . . ." Id. at 585 n 6.

Here, the parties used the inherited assets to make purchases to improve the marital estate. When plaintiff's father became ill, the parties used the father's money to purchase a new home, where the three of them lived together. After the father died, plaintiff recorded a deed transferring that house to defendant and him. The parties used inherited funds to buy another house next door, which they rented out. The parties also used inherited funds to remodel the marital home, to pay joint credit card debts, and to purchase fertilizer, a power washer, a truck, and lawn maintenance equipment for plaintiff's planned new business, as well as a car for their daughter. Plaintiff's use of the inherited assets in this manner shows that he treated certain of the inherited assets as marital property.

Second, the trial court correctly concluded that the inheritance should be included as part of the marital estate because defendant helped care for plaintiff's sick father.

A spouse's separate assets may be included in the marital estate if the award is "insufficient for the suitable support and maintenance" of the other party, MCL 552.23(1), or the other party [Page 954] "contributed to the acquisition, improvement, or accumulation of the property,"MCL 552.401. Reeves v Reeves, 226 Mich App 490, 494-495 (1997).

The parties decided not to put plaintiff's father in a nursing home because it was more economical to care for him themselves. Plaintiff quit his regular job to care for his father, became the conservator of his father's estate, and the parties supported themselves with plaintiff's father's money while he was alive.

Defendant was involved in caring for plaintiff's father, which included bringing him meals and making him comfortable. By helping with the care of plaintiff's father, defendant assisted in keeping him out of a nursing home. In Reeves, supra at 495, the Court of Appeals explained that a spouse's separate property can be invaded under these types of circumstances:

[I]n Hanaway v Hanaway, 208 Mich App 278, 294; 527 NW2d 792 (1995), this Court held that the defendant's inherited stock in a family-owned company was available for invasion because the plaintiff's handling of child-rearing and domestic duties had freed the defendant to concentrate on building up that company.

The Hanaway Court found that the defendant's stock had "appreciated because of defendant's efforts, facilitated by plaintiff's activities at home." Id. at 294.
Similarly here, defendant's efforts to care for plaintiff's father preserved the father's fortune by saving the costs associated with a nursing home. Additionally, the money saved by caring for plaintiff's father at home presumably accrued interest, allowing the estate to appreciate in value.

Thus, when plaintiff's father died, the inheritance was larger because of defendant's efforts. Defendant thus "contributed to the acquisition, improvement, or accumulation" of the inherited property under MCL 552.401.
WEAVER and KELLY, JJ., join the statement of CORRIGAN, J.


1 Plaintiff testified that the inheritance was worth $2,339,133.71 at the time of the divorce proceedings.

2 The inherited property that was jointly owned or comanaged by the parties was included in the $714,634 marital estate. Plaintiff agreed that this portion of the inheritance should be included in the marital estate.

3 Defendant's award totaled 36 percent of the total estate.

-----end case-----these facts may not apply to you,consult an attorney---

By Attorney Terry Ray Bankert 810 235-1970

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Saturday, November 18, 2006

Property division in divorce, marital home, pension etc...

By Attorney Terry Ray Bankert 810 235-1970

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In Barger, Michigan Court of Appeals unpublished no 263020 from Monroe Circuit Court LC NO. 04-029627-DM

Issues: Divorce; Property distribution; Sparks v. Sparks; The trial court’s award to the plaintiff-wife half of the proceeds from the sale of the marital home; Korth v. Korth; Whether the defendant-husband was entitled to the equity in the home because it was his separate asset; Reeves v. Reeves; Award to the plaintiff of half of the defendant’s IRA pension; MCL 552.18(1); Magee v. Magee

Court: Michigan Court of Appeals (Unpublished)

Case Name: Barger v. Barger

e-Journal Number: 33807 [modified here for this venue by Terry Bankert]

Judge(s): Per Curiam – Fort Hood, Murray, and Donofrio

Concluding the trial court’s factual findings were not clearly erroneous and its division of the proceeds from the sale of the marital home and the defendant-husband’s IRA pension were fair and equitable, the court affirmed the judgment of divorce.

The parties were married for several years and the evidence showed each contributed to the family expenses during the marriage. While defendant entered into a land contract to buy the home before the parties married, they lived together in the home before and during the marriage and improved the property together.

Plaintiff took out a mortgage on the home in her name, using the proceeds to pay off the land contract and to make home repairs. Improvements were made to the patio, landscaping, kitchen, and other areas.

Plaintiff also contributed to the addition of an extra room to the home and an outside pool. Her contributions to the home more than likely increased its value.

The trial court properly determined the home was a marital asset and plaintiff was entitled to half its value. Defendant admitted he started the IRA when the parties first married and he contributed to it during the marriage. Plaintiff liquidated an $11,000 IRA she had during the marriage when defendant was unemployed and family finances were "tight."

Both parties worked for most of the marriage and contributed to the family finances. Defendant’s pension was clearly part of the marital estate, which entitled plaintiff to half of its value.

—end e journal— notes follow
-The conduct of the parties during the marriage may be relevant to the distribution of property. The trial court must consider all the relevant factors and not assign disproportionate weight to any circumstance. Sparks v Sparks 440 Mich 141, 158 , 485 NW2d 893 (1992)


1.duration of the marriage

2.contribution of the parties

3.age of the parties of the parties status of the parties

6.necessities of the parties

7.earning abilities

8.past relations and conduct of the parties

9. Principals of equity.

-The goal in distribution of marital assets is to reach an equitable distribution in light of all of the circumstances. Gates v Gates 256 Mich App 420, 423, 664 NW2d 231 (2003)

-The parties shared and maintained the marital home which gave both parties an interest in any increase in value during the course of the marriage. Korth v Korth 256 Mich App 286, 293-294, 662 NW2d 111 (2003)

- Pensions are considered part of the marital estate and may be distributed through a property division upon divorce. MCL 552.18 (1). Magee v Magee 218 Mich App 158, 164, 553 NW2d 363 (1996)

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Tuesday, November 14, 2006

#17 Domestic Violence.

By Attorney Terry Ray Bankert 810 235-1970
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What Is Domestic Violence?

Domestic violence is defined a pattern of behavior used to establish power and control over another person through fear and intimidation.

This is accomplished by:

physical violence
isolation from friends and family
verbal abuse( belittlement, taunting)
intimidation (destroying property, abusing pets, displaying firearms)
economic abuse ( controlling access to money,
preventing or interfering with employment)
coercion ( threatening to commit suicide or to report incidents to protective services)
use of the children ( harrassment during parenting time, threatening to kidnap the children)sexual abuse

Domestic violence occurs when one household member chooses to use a pattern of physical assaults, threats of violence and emotional abuse to maintain power and control over another.

All 50 states have statutes authorizing courts to issue orders of protection to domestic violence victems.

In Michigan, a victem of domestic violence may obtain a personal protection order (PPO) to enjoin abusive behavior. PPOs may enjoin specific actions such as assulting, attacking, beating, molesting, stalking, or wounding the petitioner. In addition they may be prohibited from entering specific premises usually including the petitioners home and place of employment.

They may also prohibit the removal of minor children from the legal custodian, purchasing or possessiong firearm and any other act that interferes with the petitioners personal liberty or that causes a reasonable apprehension of violence.

Knowing the definition of domestic violence can help you take action against it.

What kind of behavior is considered domestic violence?

Domestic violence can take a number of forms, including: physical behavior (slapping, punching, pulling hair or shoving) forced or coerced sexual acts or behavior (unwanted fondling or intercourse, or sexual jokes and insults) threats (threatening to hit, harm or use a weapon) psychological abuse (attacks on self-esteem, attempts to control or limit another person's behavior, repeated insults or interrogation) stalking (following a person, appearing at a person's home or workplace, making repeated phone calls or leaving written messages), or cyberstalking (repeated online action or email that causes substantial emotional distress).

Typically, many kinds of abuse go on at the same time in a household. Are PPO’s ( Personal Protection Orders) available only when the abuser is a spouse?No, the victim of an abusive live-in lover can obtain a PPO or emergency protective order.

In a few states, the victim of any adult relative, an abusive lover (non-live-in) or even a roommate can obtain such an order.

To learn about your state's rule, contact a local crisis intervention center, social service organization or battered women's shelter.

Domestic Violence: Taking ActionSuggestions to help you stop domestic violence.

If I leave, how can I make sure the abuser won't come near me again?

The most powerful legal tool for stopping domestic violence is the temporary restraining order (PPO).

A PPO is a decree issued by a court that requires the perpetrator to stop abusing you. The order may require, for example, that the perpetrator stay away from the family home, where you work or go to school, your children's school and other places you frequent (such as a particular church).

The order will also prohibit further acts of violence. In Genesee County MI go to the 2nd floor of the County Court House and The Genesee County Clerk has a special office to help you fill out a PPO.

Domestic Violence: Taking Action

In my community, judges don't issue PPO after 5 p.m. How can I get protection?Contact your local police department.How can I help my domestic violence case?

Many people go to court on their own to obtain a PPO. Some people go the very first time they are abused, while others wait until they can't live with it any longer -- sometimes for many years. What some fail to understand is that, despite the social awareness and sympathy surrounding domestic violence, the decision to grant a restraining order is based on law and legal process.

Because of this, there are steps you can take to increase your chances of succeeding in court. Police Reports. You should call the police if you feel threatened or have been a victim of violence. This is important for your physical safety, but it will also help your case in court.

The police must file a report documenting the incident whether you seek a restraining order or not. If you go to court for that particular episode or a future one, you get a copy of the report from the police station and take it to court. Photographs. Whether or not the police take pictures of any injuries, you should have a friend or family member do the same. (Police photos don't always make their way from the police file to the judge's courtroom in time for a restraining order hearing.) Ask your friend to take approximately ten pictures -- and be sure that she or he photographs your injuries from different angles, using both outdoor and indoor light. It's also important to photograph any property damage. Take pictures, for example, of any broken furniture, unhinged doors or holes in walls that resulted from the violence.

Domestic Violence: Taking Action

When you go to court dress as if you were going to a job interview. If this isn't an option for you, just be as neat and well-groomed as possible. Don't ever interrupt the judge while she is speaking.

This is the golden rule. No matter what she's saying, wait until she's through. Interrupting or arguing is a surefire way to prejudice that judge against you. When she's finished, you should politely ask permission to speak. Don't interrupt the opposing party. No matter what verbal concoction your opponent is spewing, he or she has the right to speak freely. Know that you will get your chance to explain or deny what's been said. Don't make faces of disgust or shake your head in disbelief during the proceedings. Also, try not to jump up and down if the judge decides in your favor. Very rarely does the decision rendered please everyone. It's best to adopt a professional demeanor and save the anger or celebration for private moments.

Domestic Violence: Taking Action

What should I do once I have a PPO?Register it with the police located in the communities in which the abuser has been ordered to stay away from you -- where you live, work, attend school or church and where you children go to school. Call the appropriate police stations for information about how to register your order.

What if the abuse continues even if I have a PPO?Obviously, a piece of paper cannot stop an enraged spouse or lover from acting violent, although many times it is all the deterrent the person needs. If the violence continues, contact the police. They can take immediate action and are far more willing to intervene when you have a PPO than when you don't. Of course, if you don't have a PPO or it has expired, you should also call the police , domestic violence is a crime and you don't have to have a PPO for the police to investigate.

The police should respond to your call by sending out officers. In the past, police officers were reluctant to arrest abusers, but this has changed in many communities where victims' support groups have worked with police departments to increase the number of arrests. You can press criminal charges at the police department, and ask for criminal prosecution. Documentation is crucial if you want to go this route.

Be sure to insist that the officer responding to your call makes an official report. Also, get the report's prospective number before the officer leaves the premises. If you do press charges, keep in mind that only the district attorney decides whether or not to prosecute. If you don't press charges, however, the chance is extremely low that the district attorney will pursue the matter.

Domestic Violence: Civil Liability Information to help you take legal action against your abuser. Can I sue the abuser for my injuries?Possibly.

When one person injures another in some way, that act is called a "tort." The person injured by the tort may sue the wrongdoer for damages. Legally, torts are known as civil (as opposed to criminal) wrongs. But some acts of domestic violence, such as battery, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. One now famous example of a civil case is Goldman v. Simpson, in which Ron Goldman's parents sued O.J. Simpson for their son's death. Because Mr. Simpson was acquitted in the criminal trial, the Goldmans sued for money damages in civil court and won.

Domestic violence refers to physical harm inflicted on one member of a household or family, by another member of the same household or family (usually between spouses).

Domestic violence (sometimes called "spousal abuse") usually involves repetitive physical and psychological abuse, and a "cycle of violence".

Specific crimes charged vary based on 1) severity of the victim's injuries, 2) whether a minor was present, and 3) whether a protective or restraining order was violated.

Domestic Violence
Q : Do protective orders actually protect the victim of domestic violence?
A : In many cases, yes. Studies have shown that issuing a protective order or arresting a person who commits an act of domestic violence does reduce future incidents of domestic violence.

When perpetrators of domestic violence see that the police and court system will treat domestic violence seriously, many persons who commit domestic violence may be deterred from future violence.

But orders of protection are not guarantees of protection or safety.

For some individuals with intense anger or rage, no court order will stop their violence, and a court order might even add to the rage. Newspapers periodically carry stories of women murdered by their husband or boyfriend despite numerous arrests and orders of protection.

The legal system cannot offer perfect protection, although it can reduce violence. Domestic Violence

Q : Where does one turn for help in cases of domestic violence?
A : In a crisis situation, a call to the police is a good place to start. Many people complain that police do not take accusations of domestic violence seriously.

That can be true in some circumstances, but on the whole, police are treating domestic violence situations more seriously, and police officers are receiving increased training on the subject.

The Genesee County Prosecutors office also may be able to offer some help. An increasing number of hospitals, crisis intervention programs, and social service agencies have programs to help victims of domestic violence. Agencies offering help in cases of domestic violence might be found in the Yellow Pages under "Domestic Violence Help," "Human Services Organizations," or "Crisis Intervention."

By Attorney Terry Ray Bankert 810 235-1970
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
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Monday, November 13, 2006

Mediation, Arbitration and Final Property Division

posted here By Attorney Terry Ray Bankert 810 235-1970

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Issues: Divorce; Property division;

The parties in this case have adult children in a 42 year marriage and a separate maintenance agreement had ben entered after 36 years. The Husband was 71 yrs old and a retired bricklayer. The wife never worked outside the home and was 56 yrs of age.

Here the court must divide marital property.

Generally , the division must be equitable, just, and reasonably fair under the circumstances. This generally means a 50/50 split. Any significant departure from congruence must clearly be explained.

The following factors should be considered.
The duration of the marriage.
The parties contribution to the marital estate.
The parties age.
The parties health.
The parties life status.
The parties necessities and circumstances.
The parties earning ability.
The parties past relations and conduct.
The general principles of equity.[fairness]
see Sparks at 440 Mich 141.

The parties had agreed to binding arbitration.

The parties may stipulate to binding arbitration by the Domestic Relations Arbitration Act. DRAA MCL 600.5070 et seq and MCR 3.602. Among other domestic relations issues arbitration may resolve real and personal property division, costs and fees, enforce ability of prenuptial and antenuptial agreements and the allocation of marital debt. MCL 600.5071

The award and any other orders issued by the arbitrator are enforceable in circuit court in the same manner as if the court had issued them MCL 600.5079 (1).

Here the issue was whether the trial court properly incorporated the arbitrator’s binding decision concerning the property division (adopted in the prior judgment of separate maintenance) into the divorce judgment.

Whether the trial court should have instead resolved the property settlement anew in the divorce judgment; Lentz v. Lentz; Keyser v. Keyser; Res judicata; Engemann v. Engemann; Spousal support; Moore v. Moore; Magee v. Magee; Kurz v. Kurz;

Whether the trial court was obligated by the arbitration award to impose a sanction for the plaintiff-husband’s attempt to conceal or dispose of a small portion of monies in a brokerage account; Binding effect of an arbitrator’s decision; MCR 3.602(1); Attorney’s fees; Reed v. Reed; Appellate fees and costs; MCR 3.206©)(1) and (2)(a); Reassignment of the case by the chief judge; Waiver; Doctrine of invited error

Court: Michigan Court of Appeals (Unpublished)

Case Name: Carl Lucio Vendittelli Plaintiff v.Wanda June Vendittelli Defendant
Lower Court Wayne County NO. 04-412147 DO

e-Journal Number: 33768 State Bar of Michigan Monday 11/13/06 this posting has modified 33768

Judge(s): Per Curiam – Borrello, Jansen, and Cooper

Under the reasoning of Lentz,271 MA 465,2006 because the parties clearly and unambiguously agreed to binding arbitration of the division of their marital property in a consent order for binding arbitration, the trial court did not err in incorporating the arbitrator’s decision concerning the property division (which was adopted in a prior judgment of separate maintenance) into the judgment of divorce rather than resolving the property distribution anew in the divorce judgment.

The parties’ agreement must be enforced as written, which rendered the property division in the arbitration award binding.

Like the separation agreement in Lentz,, the parties’ arbitration agreement was a contract. The public policy reasons favoring upholding a property agreement negotiated by parties seeking divorce or separate maintenance equally apply where the parties enter into an agreement to permit an arbitrator to resolve issues such as property distribution.

By agreeing to arbitration, the parties essentially consented in advance to the arbitrator’s distribution of their property.

There was no evidence of coercion, duress, or fraud and the defendant-wife did not argue there was coercion, duress, or fraud in the context of signing the consent order to arbitrate. Rejecting both parties’ arguments regarding the award of spousal support, the court further held the trial court’s award to the defendant of $600 monthly spousal support, together with its order plaintiff pay $220 a month for defendant’s health insurance, was equitable.

The judgment of divorce was affirmed. --end case-

Any contested issues in a divorce proceeding may be submitted to mediation. MCR 3.216 (C ) (2 ). This does not affect the Friend of the Court Mediation process. A domestic relations mediation action is referred to mediation through written stipulation, on a party's written motion, or the judges own order. MCR 3.216 (C ) (2).

If the parties request and the mediator agrees, the mediator may provide a written recommendation for settlement of any isues that remain unresolved at the end of mediation. MCR 3.216 (A) (2).

Each party must agree in writing before mediation to pay the mediator and it can be expense.
Domestic mediation is done by one mediator usually appointed by the court. A session is scheduled within a reasonable time. Each side before the mediation will provide a summary of the case.
-the facts and circumstances of the case
-the issues in dispute
-a description of the marital assets and their estimated value
-the partiers income and expenses
-a proposed settlement
-documentary evidence

Mediation is a negotiated settlement by the mediator. Arbitration is a final decision with the arbitrator stepping into the shoes of the judge. Arbitration is:
-binding and the right of appeal is limited
-arbitrators power and duties outlined in written agreement
-the cout will enforce the arbitrators decisions
-the parties may have attorneies
-the parties pay for the arbitrator.

Arbitration is governed by DRAA MCL 600.5070

Posted here By Attorney Terry Ray Bankert 810 235-1970

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Wednesday, October 25, 2006

#16 Parenting time enforcement.

By Attorney Terry Ray Bankert 810 235-1970

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It is presumed that it is in the best interests of the child to have a strong relationship with both parents. The child has a right to this parenting time.

When there are court orders the non custodial parent has the same rights to parenting time that the custodial parent has to support. Each parent should expect the Friend of the Court and the Judge to cause these orders to be complied with. The Friend of the Court office works for you. Contact your case workers and ask for enforcement assistance.

Generally a parent has the right to reasonably visit or parent their children unless the court has modified that right. Grandparents have some rights to parenting time also. Usually if restricted parenting time will be based on the court finding it is in the Best interest of the Children. Parenting time varies from order to order because the circumstances of children differ. You have a right to ask for specific parenting time.

A parents right to contact with their children is a fundamental right protected by the 1st, 9th, and 14th amendment to the United States Constitution. We want parents to maintain strong relationships between parents and children so parenting time is ordered. An award of reasonable parenting time presumes that the parents in spite of personal differences are still capable of dealing with each other in a mature manner.

If there is possibility of problems the order should specify time , place and circumstances of the parenting time.

The general rule is that the duty to support children exists separately from the right to visit, those children.

Child support and parenting time orders are not for the parents. These orders are to enhance the needs of the children and to meet the emotional needs of the children. Both needs are equally important. Parenting time is not a purchased commodity.

In 722.27a Parenting time, the law says :

(1) Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Except as otherwise provided in this section, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time....

(3) A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child's physical, mental, or emotional health....

(6) The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:

(a) The existence of any special circumstances or needs of the child.

(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

(c) The reasonable likelihood of abuse or neglect of the child during parenting time.

(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.

(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

(g) Whether a parent has frequently failed to exercise reasonable parenting time.

(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent's intent to retain or conceal the child from the other parent.

(i) Any other relevant factors.

(7) Parenting time shall be granted in specific terms if requested by either party at any time.
In a case called Pickering 268 Mich App1 (2005) There were two minor children in a 5 year marraige. Mom was the primary care giver, dad was the primary wage earner and retired on disability. At a court hearing to clarity a judgement he asked the court verbally for specific parenting time which was denied with the explaination he was too late. The court of appeals ordered the lower court to enter a specific parenting time order because it can be asked for at any time.

(8) A parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent, including 1 or more of the following:

(a) Division of the responsibility to transport the child.

(b) Division of the cost of transporting the child.

(c) Restrictions on the presence of third persons during parenting time.

(d) Requirements that the child be ready for parenting time at a specific time.

(e) Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.

(f) Requirements that parenting time occur in the presence of a third person or agency.

(g) Requirements that a party post a bond to assure compliance with a parenting time order.

(h) Requirements of reasonable notice when parenting time will not occur.

(i) Any other reasonable condition determined to be appropriate in the particular case.

(9) During the time a child is with a parent to whom parenting time has been awarded, that parent shall decide all routine matters concerning the child....


Prosecuting Attorney

Each county has a prosecuting attorney. The prosecuting attorney’s office can assist you with:
Obtaining a court order to establish paternity
Obtaining court orders for custody, support, and parenting time

Locating a parent

For referral to a prosecuting attorney for child support services, contact the support specialist in your local DHS office.

Friend of the Court

The friend of the court’s office can assist you with:

Investigating and making recommendations regarding custody, parenting time, and support

Enforcing custody, parenting time, and support orders

Modifying custody, parenting time, and support orders

Registering Michigan orders in other states

Initiating income withholding orders, including interstate

Resolving collection problems

Providing alternative dispute resolution through mediation programs

Locating a parent

Most counties have their own friend of the court, but in some circuit courts, multiple counties participate in one friend of the court. You will find a phone listing for the friend of the court in the "Government" section of your phone directory, under County Government. For more information on the friends of the court, visit the Michigan Friend of the Court page on the Michigan Courts website at

Because the friends of the court are based in the circuit courts, the Supreme Court’s State Court Administrative Office is also involved with program operations. You can visit the State Court Administrative Office page on the Michigan Courts website at

In MCl552.601 the law also says:

1) If the office of the friend of the court determines that a procedure for resolving a parenting time dispute authorized under section 41 other than a civil contempt proceeding is unsuccessful in resolving a parenting time dispute, the office of the friend of the court shall commence a civil contempt proceeding to resolve a dispute concerning parenting time with a minor child by filing with the circuit court a petition for an order to show cause why either parent who has violated a parenting time order should not be held in contempt. The office of the friend of the court shall notify the parent who is the subject of the petition. The notice shall include at least all of the following:

(a) A list of each possible sanction if the parent is found in contempt.

(b) The right of the parent to a hearing on a proposed modification of parenting time if
requested within 21 days after the date of the notice, as provided in section 45.

(2) If the court finds that either parent has violated a parenting time order without good cause, the court shall find that parent in contempt and may do 1 or more of the following:

(a) Require additional terms and conditions consistent with the court's parenting time order.

(b) After notice to both parties and a hearing, if requested by a party, on a proposed modification of parenting time, modify the parenting time order to meet the best interests of the child.

(c) Order that makeup parenting time be provided for the wrongfully denied parent to take the place of wrongfully denied parenting time.

(d) Order the parent to pay a fine of not more than $100.00.

(e) Commit the parent to the county jail.

(f) Commit the parent to the county jail with the privilege of leaving the jail during the hours the court determines necessary, and under the supervision the court considers necessary, for the purpose of allowing the parent to go to and return from his or her place of employment.

(g) If the parent holds an occupational license, driver's license, or recreational or sporting
license, condition the suspension of the license, or any combination of the licenses, upon noncompliance with an order for makeup and ongoing parenting time.

(h) If available within the court's jurisdiction, order the parent to participate in a community corrections program established as provided in the community corrections act, 1988 PA 511, MCL 791.401 to 791.414.

(3) The court shall state on the record the reason the court is not ordering a sanction listed in subsection (2)(a) to (h). For the purpose of subsection (2), "good cause" includes, but is not limited to, consideration of the safety of a child or party who is governed by the parenting time order.

(4) A commitment under subsection (2)(e) or (f) shall not exceed 45 days for the first finding of contempt or 90 days for each subsequent finding of contempt. A parent committed under subsection (2)(e) or (f) shall be released if the court has reasonable cause to believe that the parent will comply with the parenting time order.

(5) If a parent fails to appear in response to an order to show cause, the court may issue a bench warrant requiring that the parent be brought before the court without unnecessary delay to show cause why the parent should not be held in contempt. Except for good cause shown on the record, the court shall further order the parent to pay the costs of the hearing, the issuance of the warrant, the arrest, and further hearings, which costs shall be transmitted to the county treasurer for distribution as provided in section 31.

(6) If the court finds that a party to a parenting time dispute has acted in bad faith, the court shall order the party to pay a sanction of not more than $250.00 for the first time the party is found to have acted in bad faith, not more than $500.00 for the second time, and not more than $1,000.00 for the third or a subsequent time. A sanction ordered under this subsection shall be deposited in the friend of the court fund created in section 2530 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2530, and shall be used to fund services that are not title IV-D services.

(7) A fine ordered under subsection (2), costs ordered under subsection (5), or a sanction ordered under subsection (6) becomes a judgment at the time they are ordered.

(8) If the court finds that a party to a parenting time dispute has acted in bad faith, the court shall order the party to pay the other party's costs.

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

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Monday, October 23, 2006

#15 Paternity

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.

Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

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"Paternity" refers to the legal establishment of who is the father of a child. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.

In Michigan the paternity of a child may be established in several ways.
1. During a divorce the matter may be litigated.
2.When the parties are not married an action may be brought for custody and support.
3. Parents may sign an affidavit of parentage after a birth and father may file a notice of intent to claim paternity before a marriage. The State of Michigan may bring an action when mother receives public assistance.

The establishment of paternity under another states law has the same effect as a Michigan acknowledgement of parentage or order of filiation.

Putative fathers [dads not legally recognized yet] may not seek custody under the Child Custody Act of 1970 withour a prior acknowledgement of paternity or order of filiation. Dads cannot legally protect their rights to see their kids until this is done.

In a divorce action, the court has no authority to determine the paternity of a third party, although it may determine the husbands paternity rights if the court has jurisdiction. A finding of fact in a divorce decree that a child was born of the marraige bars relitigation of paternity even if the isue was not contested.

Paternity Actions in Court

An action to establish paternity is a civil proceeding properly filed in the Genesee County Family court. When the court finds the man to be the father of a child in question it orders what is called an order of filiation. A man with limited income has the right to counsel in a paternity action. If the court orders a test and the man does not comply the court can enter a default judgement against the man. Either party may demand a jury trial in a paternity action. If the court finds the man to be the father of the child an order of filiation is entered. Attorney fees, court costs may be awarded in paternity cases.

DNA Testing and Paternity

In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child's genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father's paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.

Establishing Paternity

DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or "alleged") father in a paternity action that is the basis for child support collection may require proof that he is the child's father before he consents to payment of support. In other cases, the mother may contest the putative father's paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.

Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child's mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

In a recent case called Barnes v Jendevine , 475 Mich 696 (7/26/2006) a dad asked the court to determine that he was the dad of a child where he had an affidavit of parentage and his name was on the childs birth certificate but the child was conceived before mom finalized her divorce. The court concluded that the child was born or conceived during a marriage and there was no court decision that the child was not of the marriage. Dad therefore did not have a right to go to court to seek paternity and parenting time.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
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Thursday, October 19, 2006

The court must adequately explain the factual basis of a custody decision.

By Attorney Terry Ray Bankert 810 235-1970
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
Do you need help now? Call 810 235-1970 !
"We provide Personal Family Law services, including Divorce, Secret Divorce Planning, Child Support Parenting Time and other economic domestic issues at Terry Ray Bankert P.C. Additionally we offer Child Support Collection and Post Judgement enforcement to get you what you deserve. We excel at Criminal Defense, Bankruptcy, Defense in Child Protective Proceeding and Probate services. Get prepared with our Book’s, Tapes, Videos, CD’s, Bloog’s,Webb sites, Seminars and Personalized Case Planning where we keep you 100% informed! LET US BE YOUR ATTORNEY"call me, Terry Bankert at 810-235-1970!

Issues: Divorce; Appeal from divorce judgment awarding the defendant-father sole legal and physical custody of the parties’ two minor children;

Whether the trial court should have made findings regarding the plaintiff-mother’s request for joint custody;

Whether the trial court adequately explained the factual basis for its finding there was no established custodial environment; MCL 722.27(1)©); Baker v. Baker;

Whether the trial court made findings regarding statutory best interest factor (j); Whether the trial court’s findings regarding best interest factors ©), (f), (h), (I), and (k) were contrary to the great weight of the evidence; Parenting time awarded to plaintiff; MCL 722.27a(1); Amount of child support; Whether the case should be assigned to a different judge on remand; Bayati v. Bayati

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hayes v. Hayes , No. 269819, Maniatee Circuit Court, Family Division, LC No 05-01196-DM.
e-Journal Number: 33455
Judge(s): Per Curiam – Sawyer, Wilder, and Servitto

Since the trial court failed to make findings regarding the plaintiff-mother’s request for joint custody and findings related to best interest factor (j), the court remanded to the trial court for reconsideration of its custody decision and consideration of the issue of joint custody. The parties stipulated to an interim joint custody order alternating custody each week. Later, the trial court granted plaintiff’s ex parte motion for full custody, but reinstated the interim order pending the outcome of a custody hearing.

Plaintiff sought joint custody and defendant sought full custody. The trial court found the children did not have an established custodial environment with either parent and applied the preponderance of the evidence standard to determine custody. The trial court awarded defendant both legal and physical custody and awarded plaintiff parenting time. The trial court did not make any finding as to best interest factor (j)—the willingness of the parties to facilitate and encourage the children’s relationship with the other parent, and did not address plaintiff’s request for joint custody.

MCL 722.26a requires the trial court to consider a parent’s request for joint custody. The trial court called its custody decision " a close call," and held the children’s preferences were the deciding factor.

All custody orders on appeal must be upheld unless against the evidence, palpable abuse of discretion or clear error. MCL 722.28, Mixon v Mixon 273 MA 159: 162, 602 NW2 406 (1999)


[1]Did the trial Court adequately set forth findings of fact as required by statute. Questions of law are reviewed de novo nu the court. Buba v Buba after remand.
, 461 M 637, 647, 610 NW2 873,[2] The moving party must show change of circumstances. MCL 722.27 Mason v Simmons, 267 MA 188, 195, 704 NW2 104, 2005

[3]Deciding custodial environment is a question of fact 2000 to be resolved by a best interest analysis. Foskett v Foskett, 247 MA 1 , 6 , 634 NW2 363, 2001. The trial court must make a finding Mcl 722.27

[4] The custodial environment of a child is established over an appreciable time the child naturally looks to the custodian in that environment for;
a. Guidelines
b. Discipline
c. necessities of life
d. parental comfort
see MCL 722.27

[5] The existence of a custodial environment depends upon custodial relationships of significant duration in which the parent provides the children with.
A. parental care
b. Disipline
c love
d. guidance
f. physical security
g. psychological security
h. stability
see Baker v Baker 411 M 576, 519-580, 309 NW2 532, 1981

The trial court erroneously failed to make findings regarding best interest factor (j). Considering the fact the trial court found the parties equal on most factors and its acknowledgment it was a close case, the court held the error was not harmless. There was conflicting evidence on this factor and it was relevant to the joint custody issue. On remand, the trial court is to explicitly state its findings and conclusions as to factor (j). Reversed and remanded.

By Attorney Terry Ray Bankert 810 235-1970
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
Do you need help now?
Call 810 235-1970 !