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 !
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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Court: Michigan Court of Appeals (Unpublished)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 !