EATON COUNTY CHILD CUSTODY JUDGE TOLD TO DO IT OVER.Comments by Flint Divorce Lawyer Terry Bankert, 235-1970

　
The Eaton County Divorce Court, Family Division, 1999 Child Custody dispute and order granting joint legal custody was done wrong because there was not a child custody change in circumstances determination hearing. Flint Divorce Attorney Terry Bankert, a subscriber to Dump My Spouse . Com, reviews this issue. If you need information on you child custody, child support or divorce call 1-810-235-1970 , Divorce Lawyer Terry Bankert or see the link below.

CHILD CUSTODY DECISIONS ARE HARD ON CHILDREN, PARENTS AND SOMETIMES THE LAWYERS.

DO NOT THINK YOU ARE ALONE. Another chapter in the bitter child custody battle between NBA star Dwayne Wade and his wife played out in a Chicago court room Friday with Mrs. Wade firing her ninth attorney. [3] ANOTHER ON BITES THE DUST
The FAMILY COURT trial had been set to get under way June 7, but at a hearing Friday, Cook County Circuit Judge Marya Nega , DIVORCE AND CHILD CUSTODY,granted what she described as a final postponement after allowing Mrs. Wade to dismiss her most recent lawyer. [3]

NOW BACK TO MICHIGAN
　
The State of Michigan Court of Appeals in the case concerning FATHER JOHN E. WILBER,
Plaintiff/Counter-Defendant- appellant and MOTHER Skye D. Carter Defendant /counter-Plaintiff-Appell in an UNPUBLISHED DECISION ,May 20, 2010,v No. 293804 DECIDED ON THE ORDERS OF A LOCAL COURT. The child custody case was from Eaton Circuit Court. That courts case number is LC No. 99-000882-DP. The information that follows is altered for this media presentation. The original case can be found at cite [1]

In this EATON COUNTY CHILD CUSTODY custody dispute, p FATHER plaintiff appeals an order granting joint legal custody of the parties’ minor child (DOB 4/20/99).

THE EATON COUNTY COURT WAS WRONG IN A CHILD CUSTODY DECISION
Because the trial court erred in awarding custody without determining a change in circumstances, just cause, the existence of an established custodial environment, and without considering the best interest factors, we reverse the order and remand for further proceedings.

DUE PROCESS AND STATE LAW VIOLATED

FATHER Plaintiff argues that the court erred in modifying a prior custody award without a motion being submitted and without a finding that there was proper cause or a change in circumstances to justify the modification.

SOME HAVE BEEN TRYING TO CHANGE THE LAW BUT WILL NOT BE ON THE BALLOT NOT THIS YEAR.

Robert Kerr of Lansing, who launched an effort to require circuit courts to award joint child custody unless there's convincing legal evidence that one of the parents is unfit, said the hurdle to collect 304,100 signatures was too high. He's hoping a bill that would achieve similar aims will get a fair hearing in the House Judiciary Committee. [4]

DOCTRINE FOLLOWED

A custody order must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue. MCL 722.28; Berger v Berger,
277 Mich App 700, 705; 747 NW2d 336 (2008). A trial court commits legal error when it
incorrectly chooses, interprets, or applies the law. Id. at 706.

THE CHILD CUSTODY ACT AND EATON COUNTY, THERE ARE RULES A JUDGE MUST FOLLOW.

The Child Custody Act of 1970 (CCA), MCL 722.21 et seq., governs child custody
disputes between parents, agencies, or third parties. The purpose of the CCA is to promote the
best interest of children, and it is to be liberally construed. MCL 722.26(1); Harvey v Harvey,
470 Mich 186, 192; 680 NW2d 835 (2004). The CCA creates “presumptions and standards by
which competing claims to the right of custody are to be judged, sets forth procedures to be
followed in litigation regarding such claims, and authorizes the forms of relief available in the
circuit court.”. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984).

WHAT THE EATON COURT GAVE FATHER IT TOOK AWAY IN ERROR

FATHER Plaintiff states that the court changed custody because it issued an order on March 31,
2009, awarding plaintiff sole legal and physical custody of the child and then, on August 11,
2009, ordered “[d]efendant’s joint legal custody of the minor child is restored. Hence both
parties shall now share joint custody of the minor child.”

FATHERS RIGHTS WERE TAKEN AWAY AT A REVIEW HEARING

The August 11, 2009, order followed a hearing that was scheduled in the order dated March 31, 2009, to review the matter.

THE EATON COUNTY COURT HAD MADE SEVERAL CHANGES TO CHILD LEGAL CUSTODY

Since the original February 2000 award of joint legal and physical custody, the court
changed the custody arrangement several times.

EATON COUNTY COURT ISSUED A TEMPORARY ORDER PENDING REVIEW

05/2005-temp physical to father

In May 2005, after motions from both parties, the court awarded temporary physical custody to plaintiff pending a referee hearing.

02/2006- next review hearing

After a referee hearing and a motion by defendant, the court ordered that the parties again have joint legal and physical custody, and set a review hearing for February 2006.

12/2006- led to motions and a referee hearing
Following motions by both parties and a referee hearing, the court awarded temporary physical custody to plaintiff and suspended defendant’s parenting time pending further orders and a referee hearing in December 2006.

02/2007 continued fathers custody mothers supervision

In February 2007, after a referee hearing, the court continued temporary physical custody
with plaintiff and supervised visits with defendant.

07/2008, mother gets parenting told to move

In July 2008, after defendant petitioned for parenting time and plaintiff sought child support, the court ordered parenting time for defendant and required defendant to secure different living conditions within four months.

03/31/2009, father granted father sole legal and physical

In a March 31 2009, order, after another motion by plaintiff to limit defendant’s parenting time and a scheduled review hearing at which the court interviewed the child, the court granted plaintiff sole legal and physical custody and scheduled the matter for review in August 2009.

08/11/2009 mothers joint legal custody restored, saying it intended too all along.

After the review hearing and a second interview with the child, the court ordered on August 11,

2009, that defendant’s joint legal custody was restored. The court also scheduled a hearing to review child support.

During the August 2009 review hearing, the court reviewed the history of the case and
indicated that the intent had long been to expand defendant’s involvement in the child’s life, but
that the real question was whether to reinstate the original joint physical custody arrangement of the parties.

EATON COUNTY COURT WAS UNCOMFORTABLE WITH MOTHER BUT MOTHER WA BEGING TO ACT IN A STANDARD MANNER.

The court indicated that it was not entirely comfortable with defendant’s
involvement with the child in the past but that defendant began to resume more typical parenting time.

EATON COUNTY COURT SAID IT WAS CONSIDERING CHANGING CUSTODY BECAUSE FATHER WAS MAKING IT DIFFICULT FOR MOTHER?

The court indicated that it was likely to restore joint legal custody because plaintiff was
relying on sole legal custody in order to make things difficult for defendant.

DID EATON COUNTY THINK IT WAS MANAGEING THIS CHILD CUSTODY ARRAINGEMENT?

Because the court issued temporary orders on May 25, 2005, and February 16, 2007,
scheduled hearings to review the matter, made comments regarding its general intention to
restore the original custody arrangement, and in its August 11, 2009, order referred to restoring
joint custody rather than awarding custody, it is possible that the court believed it was managing
the custody of the parties with temporary orders to preserve, and not modify, the original custody arrangement as intended.

WE WANT PARENTS TO FEEL FREE TO LET THE OTHER PARENT HAVE MORE TIME WHEN THEY ARE IN NEED.

Indeed, this Court has affirmed the “good public policy to encourage
parents to transfer custody of their children to others temporarily when they are in difficulty by
returning custody when they have solved their difficulty.” Straub v Straub, 209 Mich App 77,
81; 530 NW2d 125 (1995).

TOO MUCH SPECULATION

However, under these circumstances, any finding that the court was
modifying temporary orders until joint custody could be restored would be based on speculation.

SOME ORDERS WERE CALLED TEMPORARY SOME WERE NOT.

Only two of the court’s six orders changing the custody arrangement of the parties were
characterized as temporary. The August 11, 2009, order followed a March 31, 2009, order
granting sole legal and physical custody to plaintiff that did not state that it was a temporary
order.

WHAT DOES THE LAW SAY?

MCL 722.27(1) provides in part:
If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following:
* * *
(c) Modify or amend its previous judgments or orders for proper cause shown or
because of change of circumstances until the child reaches 18 years of age and,
subject to section 5b of the support and parenting time enforcement act, 1982 PA
295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The
court shall not modify or amend its previous judgments or orders or issue a new
order so as to change the established custodial environment of a child unless there
is presented clear and convincing evidence that it is in the best interest of the
child.

EATON COUNTY CHANGES IN CHILD CUSTODY MUST BE BASED ON CAUSE OR CHANGE.

Thus, the party seeking a change of custody must first establish proper cause or change of
circumstances by a preponderance of evidence. In re AP, 283 Mich App 574, 600; 770 NW2d
403 (2009). If a party fails to establish proper cause or change of circumstances, the trial court
may not hold a child custody hearing. Corporan v Henton, 282 Mich App 599, 603-604; 766
NW2d 903 (2009).

EATON COUNTY FAMILY COURT DID NOT CONSIDER THESE THRESHOLDS

Here, there was no discussion of the threshold question of proper cause or a change in
circumstances during the August 5, 2009, hearing or in the August 11, 2009, order to consider a
change in the March 31, 2009, custody order.

SOMETIMES JUDGES FORGET THEY ARE THE REFEREES OF AN ADVESARIAL SYSTEM BASED UPON MOTIONS AND RESPONSES

Neither party filed a motion to change custody following the March 31, 2009, order. A trial court must determine if the moving party has shown that the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed since the entry of the last custody order. Brausch v Brausch, 283 Mich App 339, 355-356; 770 NW2d 77 (2009).
　
Here there was no such motion and no findings presented on the matter.

THE EATON COUNTY CHILD CUSTODY JUDGE WAS SUPPOSED TO DETERMINE IF A CUSTODIAL ENVIRONMENT EXISTED.

Additionally, the first step in considering a change in custody is to determine whether an
established custodial environment exists. It is only then that the court can determine what
burden of proof is applied. Curless v Curless, 137 Mich App 673, 676; 357 NW2d 923 (1984).1

THE EATON COUNTY CHILD CUSTODY JUDGE DID NOT LOOK AT THE CHILDS BEST INTEREST ON THE COURTS RECORD.

Further, above all, custody disputes are to be resolved in the best interests of the child, as
measured by the factors set forth in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631
NW2d 748 (2001). Generally, the trial court must consider and explicitly state its findings and
conclusions regarding each factor and the failure to do so is reversible error. Rittershaus v
Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007); Daniels v Daniels, 165 Mich App
1
HERE IS WHAT A CUSTODIAL ENVIRONMENT IS.

According to MCL 722.27(1)(c), a custodial environment is established if: “over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort. The age of the child, the physical environment, and the
inclination of the custodian and the child as to permanency of the relationship shall also be
considered.” 726, 730; 418 NW2d 924 (1988).

ITS NOT A MIGHT DO IT’S A MUST DO RESPONSIBILITY.

Even in fairness to the parties this standard cannot be abrogated. Soumis v Soumis, 218 Mich App 27, 34; 553 NW2d 619 (1996).

THE EATON COUNTY JUDGE DID NOT DISCUSS THESE ISSUES

In the instant case, there was no discussion or findings regarding an established custodial
environment, the standard of proof required to change custody, or the statutory best interest
factors in the courts order or during the hearing.

THERE IS NOTHING NEW ABOUT THE COURT OF APPEALS EXPECTING THE EATON COUNTY JUDGE TO FOLLOW THE LAW OF CHILD CUSTODY.

This Court has consistently held that when deciding a custody matter the trial court must evaluate each of the factors contained in MCL 722.23 and state a conclusion on each, thereby determining the best interests of the child. Thompson v Thompson, 261 Mich App 353, 363; 683 NW2d 250 (2004).

THESE LAWS PROTECT THE FUNDAMENTAL RIGHTS OF PARENTS AND CHILDREN AND ARE NOT TO BE IGNORED.

It is vitally important for the protection of the fundamental rights of the parties involved to have some indicia on the record showing that the court has satisfied itself that its custody determination was in the child’s best interests. In re AP, 283 Mich App at 608.

SOCIETY WANTS TO MINIMIZE DISRUPTIZE CHANGES IN A CHILDS LIFE.

The goal of the CCA is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. See Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).

SINCE THE EATON COUNTY COURT DID NOT MAKE A CHILD CUSTODY DECISION RIGHT IT MUST DO IT AGAIN.

When a trial court fails to consider custody issues in accordance with the mandates set
forth in MCL 722.23 and make reviewable findings of fact, the proper remedy is to remand for a
new child custody hearing. Foskett, 247 Mich App at 12. Also, where this Court concludes that
the trial court committed clear legal error on a major issue, the appropriate remedy is to remand
for reevaluation. Fletcher v Fletcher, 447 Mich 871, 888-889; 526 NW2d 889 (1994);
Rittershaus, 273 Mich App at 475-476.

THE MICHIGAN STATE COURT OF APPEALS , We therefore reverse and remand. On remand, the EATON COUNTY trial court should consider up-to-date information, including the child’s current and reasonable preferences and any other changes in circumstances arising since the original custody order.
Fletcher, 447 Mich at 889.

ORDER OF THE MICHIGAN COURT OF APPEALS

Reversed and remanded. We do not retain jurisdiction.
FATHER MAY GET COSTS FROM MOTHER
Plaintiff, being the prevailing
party, may tax costs pursuant to MCR 7.219.
MICHIGAN COURT OF APPEALS PANEL Douglas B. Shapiro, Kathleen Jansen, Pat M. Donofrio

Posted here by
Terry Bankert
http://attorneybankert.com
Or
http://dumpmyspouse.com
SEE
[1]
STATE C O U R T O F A P P E A L S,JOHN E. WILBER, Plaintiff/Counter-Defendant-
Appellant, UNPUBLISHED,May 20, 2010,v No. 293804,Eaton Circuit Court,SKYE D. CARTER, LC No. 99-000882-DP,Defendant/Counter-Plaintiff-,Appellee.Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.PER CURIAM.
At http://www.michbar.org/opinions/appeals/2010/052010/45902.pdf
[2]
Modifications have been made by Terry Bankert shown as CAP HEADLING TYPE or cited as (trb) other sources made be included and cited. The oddities of this article are for SEO.
[3]
http://abclocal.go.com/wls/story?section=news/local&id=7467958
[4]
http://www.detnews.com/article/20100527/POLITICS02/5270417/1024/POLITICS03/Citizen-petitions-unlikely-to-make-it-onto-ballot