TODAYS DOMESTIC LAW ISSUE 07/17/11
Issues:
FLINT DIVORCE ATTORNEY PRESENTS OPINION CONCERNING CHANGE OF CUSTODY
1.Change of physical custody pursuant to a motion brought during child protective proceedings; Intersection of the Juvenile Code (JC)(MCL 712A.1 et seq.) with the Child Custody Act (MCL 722.21 et seq.);
This matter involves the intersection of the Juvenile Code, MCL 712A.1 et seq., and the
Child Custody Act (CCA), MCL 722.21 et seq.
This post is by Flint Divorce and Bankruptcy Attorney Terry Bankert. Divorce lawyer Terry Bankert often is involved in child custody, child support, parenting time and grandparents rights.
Flint Matrimonial Lawyer Bankert’s articles on Family Law to include Divorce they can be found at http://terrybankert.blogspot.com/.
When a juvenile court assumes jurisdiction over a child then the child is a ward of the juvenile court, whose orders supersede all prior custody orders by any other court. In re AP, 283 Mich App 574, 593; 770 NW2d 403 (2009).
It is only after a juvenile court dismisses a case that existing custody orders resume their effect and can only be changed by proceeding under the CCA. Id. A juvenile court may determine custody of a child ancillary to making determinations under the juvenile code. Id. at 598-599.
However, when the juvenile court orders a change of custody, it must then abide by the requirements of the CCA, including a more formal determination regarding the child’s best interests. Id. at 603-604.
Flint Bankruptcy Lawyer Bankert also writes about chapter 7 bankruptcy at http://dumpmycreditors.wordpress.com/ Divorce, custody child support and other topics at
In order to grant a change of custody under the CCA, the trial court was required to find
by a preponderance of the evidence that a change of circumstances existed. MCL 722.27(1)(c);
Powery v Wells, 278 Mich App 526, 527-528; 752 NW2d 47 (2008).
The parties do not dispute that a “change of circumstances” existed by virtue of the fact that the child was removed from respondent mother’s care and made a temporary ward of the court in July 2008.
FLINT DIVORCE LAWYER PRESENTS OPINION REGARDING ESTABLISHED CUSTODUIAL ENVIRONMENT
2. In re AP; Whether there was an "established custodial environment" (ECE) with the respondent-mother; MCL 722.27(1)(c); Berger v. Berger; Hayes v. Hayes; Bowers v. Bowers; Pierron v. Pierron;
MCL 722.27(1)(c) provides:
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. The custodial environment of a child 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.
An established custodial environment is “one of significant duration in which a parent provides
care, discipline, love, guidance, and attention that is appropriate to the age and individual needs
of the child.” Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008). “It is both a
physical and a psychological environment that fosters a relationship between custodian and child
and is marked by security, stability, and permanence.” Id. An established custodial environment
may exist regardless of the existence of a custody order, a violation of a custody order, or the
total absence of a custody order. Id. at 707. The focus is on the circumstances surrounding the
care of the child in the time preceding the custody trial. Hayes v Hayes, 209 Mich App 385, 388;
532 NW2d 190 (1995). In addition, “where there are repeated changes in physical custody and
uncertainty created by an upcoming custody trial, a previously established custodial environment
is destroyed and the establishment of a new one is precluded.” Bowers v Bowers, 198 Mich App
320, 326; 497 NW2d 602 (1993).
Whether an established custodial environment exists is critical to the trial court’s decision
whether to grant a change in custody because of the standard utilized in reviewing a motion for
change of custody. If an established custodial environment exists, the trial court may only
change custody upon finding clear and convincing evidence that it is in the child’s best interests.
If no established custodial environment exists, the trial court may order a change of custody upon
finding, by only preponderance of the evidence, that a change of custody is in the child’s best
interests. MCL 722.27(1)(c); Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345
(2009). A trial court’s findings regarding the existence of an established custodial environment
is reviewed under the great weight of the evidence standard. Berger, 277 Mich App at 706.
FLINT MATRIMONIAL LAWYER PRESENTS OPINON ON “ CLEAR AND CONVINCING EVIDENCE.”
3.Whether the evidence was "clear and convincing" that a change of custody was in the child's best interests; Brausch v. Brausch; Parent-agency agreement (PAA)
SOURCE-Court: Michigan Court of Appeals (Unpublished June 28, 2011),Case Name: In re HardyNo. 300305,Wayne Circuit Court,Family Division,LC No. 08-480310
e-Journal Number: 49188,Judge(s): Per Curiam – Meter, Cavanagh, and Servitto.-TERRY BANKERT COMMENTS IN CAP’S or [trb]. This opinion has been modified for presentation.
WAYNE FAMILY COURT GOT IT WRONG WHEN USING THE WRONG STANDARD!
HERE THE MICHIGAN COURT OF APPEALS IS Holding that the trial court's ( WAYNE FAMILY COURT)finding that no ECE (ESTABLISHED CUSTODIAL ENVIRONMENT) existed with the respondent-mother was against the great weight of the evidence and it should have used the "clear and convincing" evidence standard in deciding whether a change of custody was in the child's best interests, the court reversed the trial court's order granting the respondent-father's motion to change physical custody of the child.
FATHER WANTED THE ORDER CHANGED
He brought the motion during child protective proceedings.
MOTHER HAD CUSTODY
The mother had physical custody of the child and the father had visitation under a domestic relations order.
CPS GOT INVOLVED BECAUSE OF MOM’S DRUGS AND BAD BOY FRIEND
The child and his half-siblings came to the DHS's attention due to allegations about the mother's substance abuse and domestic violence between the mother and her live-in partner, K (the half-siblings' father).
CPS SAID WE HAVE A PLAN
The parents were all ordered to comply with PAAs.(PARENT AGENCY AGREEMENT)
MOM COMPLIED AND THE COURT SAID OKAY AND RETURNED THE CHILD TO MOM
The trial court later found that they were compliant with their PAAs and ordered the child returned to the mother's care.
NEW STUFF CAME UP AND THE COURT CHANGED ITS POSITION
However, before the order could be effectuated, an emergency hearing was conducted based on, inter alia, allegations that the mother was hiding ongoing domestic abuse between herself and K.
COURT TEMPORARILY PUT CHILD WITH DAD
The trial court modified its prior order and temporarily placed the child with the father.
MOM STUCK WITH CPS PLAN AND “ MADE PROGRESS”
The mother then made progress on her PAA. She was no longer with K, was receiving domestic violence services, and obtained a new apartment.
FATHER MOVED FOR A CHANGE IN CUSTODY
However, the father moved for a change of custody, seeking sole physical custody of the child.
WAYNE COURT FOUND FOR FATHER ON PREPONDERANCE
"The trial court found, by a preponderance of the evidence, that a change of custody was warranted."
WAYNE SAID THERE WAS NO ESTABLISHED CUSTODIAL ENVIRONMENT TO JUSTIFY ITS USE OF LOWER STANDARD.
The trial court specifically found that no ECE existed for the child.
MOM SAID OH NO I HAVE THE ECE AND THE STANDARD IS HIGHER ITS PREPONDERANCE
The mother argued on appeal that there was an ECE with her and that the clear and convincing evidence standard, rather than the preponderance of the evidence standard, should have been used in determining whether a change of custody was in the child's best interests.
THE MICHIGAN COURT OF APPEALS AGREES WITH MOM
The court agreed. The child was almost seven years old when the DHS sought his removal from the mother's home in 7/08.
CHILD LOOK TO M,OM FOR SEVEN YEARS
There was no dispute that during the first seven years of his life, he looked almost exclusively to the mother for his care.
MOM HAD A CUSTODY ORDER DAD JUST HAD VISITATION
A custody order granted her custody of the child, and granted the father visitation rights.
DAD OWES M,OM CHILD SUPPORT $11,000
While he exercised his visitation rights, he admitted that he owed more than $11,000 in child support.
CHILD WITH THE STATE FOR A LONG TIME
It was true that the child was out of the mother's care for an extensive period of time during the juvenile proceedings, but the ECE was not destroyed or extinguished during the proceedings under the JC. "The trial court acknowledged as much at prior hearings." The trial court only changed its position after the child had been living with the father for a time.
LIVING WITH DAD FOR LESS THAN A YEAR DID NO DESTROY ECE
However, the fact that he lived with the father from 7/09 until 4/10 did not destroy the ECE with the mother "because the placement was only temporary."
MICHIGAN COURT OF APPEALS SAID IT WAS NO CLEAR AND CONVINCING THE CHILD SHOULD LIVE WITH DAD
The court further held that while there was some support for the trial court's findings on the best interest factors, "the evidence was not clear and convincing that a change of custody was in the child's best interests.
WAYNE DID IT WRONG
Thus, the trial court abused its discretion in granting the father's motion."
And, although there was some Support for each of the trial court’s findings under the best interest factors, the evidence was not clear and convincing that a change of custody was in the child’s best interests. Thus, the trial court abused its discretion in granting the father’s motion. See Brausch v Brausch, 283 Mich App 339, 347; 770 NW2d 77 (2009).
Reversed.
Bankert is active in his community and presents information on a wide variety of topice through his blog at http://goodmorningflint.blogspot.com/
You are invited to Join Bankert’s Face Book group “ Family Law and Bankruptcy Discussions” at
http://www.facebook.com/pages/Terry-R-Bankert-PC-Family-Law-and-Bankruptcy-Discussions/
You can join Bankert on facebook at http://www.facebook.com/attorneybankert
Family Law attorney Bankert can be reached at http://www.attorneybankert.com
or 1-810-235-1970.
Issues:
FLINT DIVORCE ATTORNEY PRESENTS OPINION CONCERNING CHANGE OF CUSTODY
1.Change of physical custody pursuant to a motion brought during child protective proceedings; Intersection of the Juvenile Code (JC)(MCL 712A.1 et seq.) with the Child Custody Act (MCL 722.21 et seq.);
This matter involves the intersection of the Juvenile Code, MCL 712A.1 et seq., and the
Child Custody Act (CCA), MCL 722.21 et seq.
This post is by Flint Divorce and Bankruptcy Attorney Terry Bankert. Divorce lawyer Terry Bankert often is involved in child custody, child support, parenting time and grandparents rights.
Flint Matrimonial Lawyer Bankert’s articles on Family Law to include Divorce they can be found at http://terrybankert.blogspot.com/.
When a juvenile court assumes jurisdiction over a child then the child is a ward of the juvenile court, whose orders supersede all prior custody orders by any other court. In re AP, 283 Mich App 574, 593; 770 NW2d 403 (2009).
It is only after a juvenile court dismisses a case that existing custody orders resume their effect and can only be changed by proceeding under the CCA. Id. A juvenile court may determine custody of a child ancillary to making determinations under the juvenile code. Id. at 598-599.
However, when the juvenile court orders a change of custody, it must then abide by the requirements of the CCA, including a more formal determination regarding the child’s best interests. Id. at 603-604.
Flint Bankruptcy Lawyer Bankert also writes about chapter 7 bankruptcy at http://dumpmycreditors.wordpress.com/ Divorce, custody child support and other topics at
In order to grant a change of custody under the CCA, the trial court was required to find
by a preponderance of the evidence that a change of circumstances existed. MCL 722.27(1)(c);
Powery v Wells, 278 Mich App 526, 527-528; 752 NW2d 47 (2008).
The parties do not dispute that a “change of circumstances” existed by virtue of the fact that the child was removed from respondent mother’s care and made a temporary ward of the court in July 2008.
FLINT DIVORCE LAWYER PRESENTS OPINION REGARDING ESTABLISHED CUSTODUIAL ENVIRONMENT
2. In re AP; Whether there was an "established custodial environment" (ECE) with the respondent-mother; MCL 722.27(1)(c); Berger v. Berger; Hayes v. Hayes; Bowers v. Bowers; Pierron v. Pierron;
MCL 722.27(1)(c) provides:
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. The custodial environment of a child 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.
An established custodial environment is “one of significant duration in which a parent provides
care, discipline, love, guidance, and attention that is appropriate to the age and individual needs
of the child.” Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008). “It is both a
physical and a psychological environment that fosters a relationship between custodian and child
and is marked by security, stability, and permanence.” Id. An established custodial environment
may exist regardless of the existence of a custody order, a violation of a custody order, or the
total absence of a custody order. Id. at 707. The focus is on the circumstances surrounding the
care of the child in the time preceding the custody trial. Hayes v Hayes, 209 Mich App 385, 388;
532 NW2d 190 (1995). In addition, “where there are repeated changes in physical custody and
uncertainty created by an upcoming custody trial, a previously established custodial environment
is destroyed and the establishment of a new one is precluded.” Bowers v Bowers, 198 Mich App
320, 326; 497 NW2d 602 (1993).
Whether an established custodial environment exists is critical to the trial court’s decision
whether to grant a change in custody because of the standard utilized in reviewing a motion for
change of custody. If an established custodial environment exists, the trial court may only
change custody upon finding clear and convincing evidence that it is in the child’s best interests.
If no established custodial environment exists, the trial court may order a change of custody upon
finding, by only preponderance of the evidence, that a change of custody is in the child’s best
interests. MCL 722.27(1)(c); Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345
(2009). A trial court’s findings regarding the existence of an established custodial environment
is reviewed under the great weight of the evidence standard. Berger, 277 Mich App at 706.
FLINT MATRIMONIAL LAWYER PRESENTS OPINON ON “ CLEAR AND CONVINCING EVIDENCE.”
3.Whether the evidence was "clear and convincing" that a change of custody was in the child's best interests; Brausch v. Brausch; Parent-agency agreement (PAA)
SOURCE-Court: Michigan Court of Appeals (Unpublished June 28, 2011),Case Name: In re HardyNo. 300305,Wayne Circuit Court,Family Division,LC No. 08-480310
e-Journal Number: 49188,Judge(s): Per Curiam – Meter, Cavanagh, and Servitto.-TERRY BANKERT COMMENTS IN CAP’S or [trb]. This opinion has been modified for presentation.
WAYNE FAMILY COURT GOT IT WRONG WHEN USING THE WRONG STANDARD!
HERE THE MICHIGAN COURT OF APPEALS IS Holding that the trial court's ( WAYNE FAMILY COURT)finding that no ECE (ESTABLISHED CUSTODIAL ENVIRONMENT) existed with the respondent-mother was against the great weight of the evidence and it should have used the "clear and convincing" evidence standard in deciding whether a change of custody was in the child's best interests, the court reversed the trial court's order granting the respondent-father's motion to change physical custody of the child.
FATHER WANTED THE ORDER CHANGED
He brought the motion during child protective proceedings.
MOTHER HAD CUSTODY
The mother had physical custody of the child and the father had visitation under a domestic relations order.
CPS GOT INVOLVED BECAUSE OF MOM’S DRUGS AND BAD BOY FRIEND
The child and his half-siblings came to the DHS's attention due to allegations about the mother's substance abuse and domestic violence between the mother and her live-in partner, K (the half-siblings' father).
CPS SAID WE HAVE A PLAN
The parents were all ordered to comply with PAAs.(PARENT AGENCY AGREEMENT)
MOM COMPLIED AND THE COURT SAID OKAY AND RETURNED THE CHILD TO MOM
The trial court later found that they were compliant with their PAAs and ordered the child returned to the mother's care.
NEW STUFF CAME UP AND THE COURT CHANGED ITS POSITION
However, before the order could be effectuated, an emergency hearing was conducted based on, inter alia, allegations that the mother was hiding ongoing domestic abuse between herself and K.
COURT TEMPORARILY PUT CHILD WITH DAD
The trial court modified its prior order and temporarily placed the child with the father.
MOM STUCK WITH CPS PLAN AND “ MADE PROGRESS”
The mother then made progress on her PAA. She was no longer with K, was receiving domestic violence services, and obtained a new apartment.
FATHER MOVED FOR A CHANGE IN CUSTODY
However, the father moved for a change of custody, seeking sole physical custody of the child.
WAYNE COURT FOUND FOR FATHER ON PREPONDERANCE
"The trial court found, by a preponderance of the evidence, that a change of custody was warranted."
WAYNE SAID THERE WAS NO ESTABLISHED CUSTODIAL ENVIRONMENT TO JUSTIFY ITS USE OF LOWER STANDARD.
The trial court specifically found that no ECE existed for the child.
MOM SAID OH NO I HAVE THE ECE AND THE STANDARD IS HIGHER ITS PREPONDERANCE
The mother argued on appeal that there was an ECE with her and that the clear and convincing evidence standard, rather than the preponderance of the evidence standard, should have been used in determining whether a change of custody was in the child's best interests.
THE MICHIGAN COURT OF APPEALS AGREES WITH MOM
The court agreed. The child was almost seven years old when the DHS sought his removal from the mother's home in 7/08.
CHILD LOOK TO M,OM FOR SEVEN YEARS
There was no dispute that during the first seven years of his life, he looked almost exclusively to the mother for his care.
MOM HAD A CUSTODY ORDER DAD JUST HAD VISITATION
A custody order granted her custody of the child, and granted the father visitation rights.
DAD OWES M,OM CHILD SUPPORT $11,000
While he exercised his visitation rights, he admitted that he owed more than $11,000 in child support.
CHILD WITH THE STATE FOR A LONG TIME
It was true that the child was out of the mother's care for an extensive period of time during the juvenile proceedings, but the ECE was not destroyed or extinguished during the proceedings under the JC. "The trial court acknowledged as much at prior hearings." The trial court only changed its position after the child had been living with the father for a time.
LIVING WITH DAD FOR LESS THAN A YEAR DID NO DESTROY ECE
However, the fact that he lived with the father from 7/09 until 4/10 did not destroy the ECE with the mother "because the placement was only temporary."
MICHIGAN COURT OF APPEALS SAID IT WAS NO CLEAR AND CONVINCING THE CHILD SHOULD LIVE WITH DAD
The court further held that while there was some support for the trial court's findings on the best interest factors, "the evidence was not clear and convincing that a change of custody was in the child's best interests.
WAYNE DID IT WRONG
Thus, the trial court abused its discretion in granting the father's motion."
And, although there was some Support for each of the trial court’s findings under the best interest factors, the evidence was not clear and convincing that a change of custody was in the child’s best interests. Thus, the trial court abused its discretion in granting the father’s motion. See Brausch v Brausch, 283 Mich App 339, 347; 770 NW2d 77 (2009).
Reversed.
Bankert is active in his community and presents information on a wide variety of topice through his blog at http://goodmorningflint.blogspot.com/
You are invited to Join Bankert’s Face Book group “ Family Law and Bankruptcy Discussions” at
http://www.facebook.com/pages/Terry-R-Bankert-PC-Family-Law-and-Bankruptcy-Discussions/
You can join Bankert on facebook at http://www.facebook.com/attorneybankert
Family Law attorney Bankert can be reached at http://www.attorneybankert.com
or 1-810-235-1970.
