Wednesday, September 27, 2006

#12 Modification of Custody and Parenting Time.

By Attorney Terry Ray Bankert

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

Do you need help now? Call 810 235-1970 !

Date: 09/26/2006

Courts have the power to modify child custody arrangements to meet the needs of the child and to respond to changes in the parents' lives. When modifying an existing custody or parenting time order the court must consider each part of a state law referred to as the “ Best Interest of the child.”

Do not involve your child in this decision. Children want stability and do not want to become involved.

A child custody order is never set in stone, though it may often seem so. Until a proper basis for a change in custody is shown, called change in circumstances, a court has no authority to reconsider the best interest of the child , the basis for custody and parenting time orders .
A parent seeking to change custody through the court must show that the conditions have changed substantially since the last custody order. The change of circumstance usually involves something negative in the child's current environment--such as improper supervision, or harmful conflicts with the custodial parent or stepparent.

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 and parenting time orders.

A child's preference to live with the none custodial parent can be one of the basis for modifying custody, but the child's reasons must be well-based and not appear to be the result of coaching or bribery.

In one case, a father was trying to gain custody of his thirteen-year-old son. In the days before the custody hearing, the father presented his son with a series of gifts reminiscent of the song "The Twelve Days of Christmas". Among the acquisitions of the boy: a horse, two television sets, a minibike, a shotgun, a motorcycle, and a private telephone. The father did not gain custody.
In addition to showing a change in circumstances, the parent seeking a change of custody must show that he or she can provide a better environment for the child than the child's current environment.

Under what circumstances can custody and visitation orders be changed in the state where they were obtained?

After a final decree of divorce or other order establishing custody and visitation is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") can be made without court approval. However, if one parent later reneges on the agreement, the other person may not be able to enforce it. Thus, it is generally advisable to obtain a court's approval of stipulated modifications. Courts will usually approve modification agreements unless it appears that they are not in the best interests of the child.

If a parent wants to change an existing court order and the other parent won't agree to the change, the parent wanting a change must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability and helps prevent the court from having to deal with frequent and repetitive modification requests.

What qualifies as a substantial change in circumstances?

Here are some examples:

Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If the parents can't reach an agreement, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.

Change in lifestyle. A parent can obtain a change in a custody or visitation orders if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a non custodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously.

If parents voluntarily wish to change custody or the visitation schedule , they may do so without having to prove special factors such as endangerment or a change in circumstances. Parents may change custody and visitation without obtaining a court order, but if the parent receiving custody or more visitation wants to make the modification "official"--thus making it more difficult for the other parent to go back to the old system--it is best to obtain a court order modifying custody and visitation.

In addition, an informal change of custody will not necessarily stop a parent's support obligation--only a court order can provide certainty of that.

Do not talk to you children about you court actions. Seeking a change of custody sole for the benefit of reducing child support seldom works.

A case called Killingbeck v Killingbeck 269 Mich App 132 (12/6/2005) is the most recent law on changes in custody and parenting time.

Before an evidentiary hearing is held, a the parent who wants the change t must first establish a change in circumstances.

In order to establish a change of circumstances, it must be proved 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. MCL 722.27(1)©). 5 As stated in Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003):

The requirement that a party seeking a change in custody first establish proper cause or a change of circumstances emanates from the Child Custody Act, MCL 722.21 et seq. Specifically, MCL 722.27(1)©) provides that if a child custody dispute has arisen from another action in the circuit court, the court may "[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . ." On the basis of this language, this Court held in Dehring v Dehring, 220 Mich App 163, 165; 559 NW2d 59 (1996), quoting Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994), that if the movant does not establish proper cause or change in circumstances, then the court is precluded from holding a child custody hearing:

"The plain and ordinary language used in MCL 722.27(1)(c); MSA 25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors." [Emphasis added.]

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." Heid v AAASulewski (After Remand), 209 Mich App 587, 593; 532 NW2d 205 (1995). See also Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001) (recognizing the Legislature's intent in enacting the Child Custody Act was to prevent the removal of children from established custodial environments "'except in the most compelling cases,'" quoting Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 [1981]). The movant, of course, has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists before the trial court can consider whether an established custodial environment exists (thus establishing the burden of proof) and conduct a review of the best interest factors. Dehring, supra.

By Attorney Terry Ray Bankert

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

Do you need help now? Call 810 235-1970 !

Sunday, September 24, 2006

#11 Child Support Basics


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 !

When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the "non-custodial" parent (the parent with whom the child does not live) to pay a certain portion of his or her income as child support. This is not the only scenario in which child support might arise. Less frequently, when neither parent has custody, the court may order them to pay child support to a third party who cares for their child.

No matter what situation gives rise to the need for child support, it might help to think of the legal right to child support as being possessed by a child (which it technically is), for his or her proper care and upbringing, regardless of who actually receives child support payments.

The Government's Role in Child Support

Because in the United States nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents. The Genesee County Friend of the Court is charged with this responsibility in our county.

Frequently, the agency , the state, and court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.

Child Support Orders

Child support orders are issued by the family court, which bases the amount of the support on the state child support guidelines. These guidelines establish the amount of support that must be paid, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children.

The court can deviate from the guidelines if there are significant reasons for doing so. The fact that the custodial parent has a high income does not itself justify deviation from the guidelines, because under the law children have the right to benefit from both parents' incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income, or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.

Unmarried Parents and Child Support

In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's "paternity" of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the "putative" (or alleged) father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue a child support order in a manner similar to that in a divorce situation.

Interstate Moves and Child Support

When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the mechanisms by which a support order issued in one state can by enforced by the courts of another state.

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