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This article by Flint Divorce Lawyer Terry Bankert. Family Law Attorney Bankert practices exclusively in Family Law. The Bankerts Lynn ( office manager) and Terry
( Divorce Lawyer) are there for you when you call. You will be an important client.
The Michigan Court of Appeals on 4/21/09 released the following "unpublished opinion from a case out of the Delta Circuit Court.
Issues: Custody; Whether the trial court correctly concluded an established custodial environment did not exist with either party; MCL 722.28; Fletcher v. Fletcher; Rittershaus v. Rittershaus; Baker v. Baker; Hayes v. Hayes; Foskett v. Foskett; Bowers v. Bowers
The case LC No. 08-019370-DM had as parties Ballo v. Branstrom.
THE MICHIGAN COURT OF APPEALS TOLD THE JUDGE OF THE DELTA CIRCUIT COURT THEIR DECISION WAS WRONG.
The trial court's finding an established custodial environment did not exist with either party was against the great weight of the evidence.
DAD WAS RIGHT WHEN HE ARGUED HE SHOULD HAVE JOINT PHYSICAL CUSTODY
The defendant-father appealed the trial court's order granting him and the plaintiff-mother joint legal custody and plaintiff sole physical custody of the parties' minor children. The court concluded the trial court should have determined an established custodial environment existed with both parties.
WHEN DAD IS ACTIVELY INVOLVED IN THE CHILDS LIFE HE SHOULD GET JOINT PHYSICAL CUSTODY
The testimony showed since the children's birth both defendant and plaintiff had provided for their needs. The testimony also demonstrated the children had always looked to both defendant and plaintiff for discipline, guidance, the necessities of life, and parental comfort. There was no indication in the record any of this changed after the parties separated or at any time before the divorce hearing.
THE KIDS WERE NOT SHUFFLED BACK AND FORTH
While it is true repeated custodial changes can destroy a previously established custodial environment, unlike the children in Baker and Bowers the children in this case were not shuffled back and forth between multiple homes and various states, or subjected to multiple and repeated changes in custody.
THE CHILDRENS LIVES HAD INCLUDED QUALITY TIME WITH DAD AND IT SHOULD STAY THAT WAY
The children's time was simply split between two homes in the same state, one of which they had lived in since they were born. Further, the past exchanges of the children between the parties were "not so irregular or impromptu as to create uncertainty in the children's lives or destroy their expectations of permanency." Reversed and remanded.
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Showing posts with label #12 Modification of Custody and Parenting Time. Show all posts
Showing posts with label #12 Modification of Custody and Parenting Time. Show all posts
Tuesday, April 28, 2009
Wednesday, September 27, 2006
#12 Modification of Custody and Parenting Time.
By Attorney Terry Ray Bankert
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/
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
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/
Do you need help now? Call 810 235-1970 !
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/
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
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/
Do you need help now? Call 810 235-1970 !
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