Monday, January 5, 2015

DO YOU WANT YOUR CHILDREN TO LIVE WITH YOU?




When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody


PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES


There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”


Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce


A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY
In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,


TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING


In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “


When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]


The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]


The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]


"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]


 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .


A child custody award may only be modified after there has been “proper cause
shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]


The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]


Proper cause” sufficient to warrant revisiting a custody order “means one or
more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]


THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST


To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove 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.” Id. at 513.  [1]



“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]


In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]


The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]


None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]


At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]


While it is true that “a stipulation by the parties regarding a matter of law is not binding
on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the
facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]


In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]


The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]


Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]


If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com


Source [1]
STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014
v No. 322082 Kent Circuit Court,LC No. 12-005913-DM


Source [2]
STATE OF MICHIGAN COURT OF APPEALS
UNPUBLISHED November 18, 2014 v No. 320871
Washtenaw Circuit Court LC No. 13-001155-DC
e-Journal Number: 58667



1 comment:

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