DAUBERT STANDARD AND DIVORCE TRIAL by Flint Divorce Laywer, Attorney Terry Bankert 235-1970

 In a Flint  divorce trial often witnesses with an expertise on important issues are used. Regular people can be used to inform the court as lay witnesses. The courts decision to let them testify inviolves a determination that  they are competent ( have personnal knowledge and ability to communicate) with a courts preference for facts not opinion. see Michigan Rules of Evidence  [MRE] 601, 601 and 701.

If you have a Flint Divorce question Contact a Flint Divorce Lawyer, Attorney Terry R. Bankert 810-235-1970.

If you want  your Flint witness treated with the respect of a true expert the rules are different. see MRE 702-703.

To be treated seriously by the court this Flint witness  must be " qualified"  as an expert and must have applied  RELIABLE PRINCIPALS AND METHODS TO THE FACTS OF THE CASE  MRE 702-703.

OUR FLINT DIVORCE   COURT JUDGES ARE GATE KEEPERS . The court has held the judges gatekeeping function applies to all expert testimony even  those that are non-scientific.

The Flint Divorce Judge makes the first decision. Is this proposed testimony relevent and reliable. The Flint Court witness expert must be reliable and the methods used  must be reliably applied to the facts at hand.  The theories the experts uses in a Flint Divorce Court must be  toied to the facts of the  case and bear a valid scientific coinnection to the focus or pertinante inquiry.

Most Flint Family Court Judges will find a reliable or valid scenetific nmethod, used by the expert, when the following questions are examined:
1. Whether the theory or technique can be and has been tested.
2.Whether the theory or technique has been subjected to peer review and publication.
3.The existence of known  or potential error rates.
4.The existence and maintenance of standards controlling the techniques operation.
5.The degree of which the theory or technique is generally acceptred in the scientific community.

The Flint Judges  focus then ius on the metjhodology and principals, not on the ultimate conclusions generated.

For an example of the use see.

9th Annual Family Law Institute

Contributed by James J. Harrington III  as follows unedited.

Use of an Alimony Prognosticator “Expert”?

1. Whether there is any such thing as a “Prognosticator Expert”, chances are good that you will be faced with the tactical decision to either use an “Expert” to publish your Spousal Support projections to the Court, or will be faced with the challenge of deconstructing “expert” testimony submitted by the opposing party.
   
   A critical threshold question is whether or not “expert” testimony is either appropriate or necessary to submit your Spousal Support projections to the Court. The four (4) Court of Appeals decisions only deal with the “hearsay” issue in one case, and totally ignore “foundation” issues.
2. An expert called to testify must be qualified under Daubert[16] and MRE 702. If you wish to attack an “expert” witness who will be called to testify regarding computer projections for Spousal Support, a mandatory predicate for admissibility of the testimony should be a threshold determination by the Trial Court, that the Daubert pre-requisites have been established.
3. The bedrock foundation for the admission of Expert Testimony is contained within Michigan Rule of Evidence (MRE) 702 and (MRE 703):
   
   Rule 702 Testimony by Experts:

   “If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

   
   
   Rule 703 Bases of Opinion Testimony by Experts:

   “The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence thereafter.”

   Some questions do arise:

   Logically, when Daubert is combined with MRE 702, are there actually any “experts” in Alimony projections?

4. If, in fact, the testimony of the expert regarding the projections consists of “opinions” this would almost disqualify the testimony pursuant to Skripnik v Skripnik.
   
   Is there a “recognized body of scientific support for computer projections”??? A compelling argument can be made that there is no such recognized scientific specialty. On the other hand, no Michigan Court has ever dealt with these threshold foundation issues.

BANKRUPTCY, FLINT,BANKRUPTCY

NEED ATTORNEY IN FLINT FOR BANKRUPTCY? CALL BANKRUPTCY LAWYER TERRY BANKERT 810- 235-1970

DID YOU KNOW-11 USC 109 sets forth the types of entities eligible to file for bankruptcy. Only a person, as that term is defined in 11 USC 109, may file a bankruptcy. Individuals, corporations, and partnerships are included in the definition of person. Further, to file a bankruptcy, an individual must, within the 180-day period preceding the date of filing, receive an individual or group briefing outlining the opportunities for available credit counseling and assisting the individual to prepare a budget analysis. This briefing must be received from an approved nonprofit budget and credit counseling agency. See 11 USC 109(h).
As of July 2010, to file a Chapter 13 case, an individual must have less than $336,900 in unsecured debt and less than $1,010,650 in secured debt. (Dollar amounts are adjusted April 1 every three years with the last adjustment occurring on April 1, 2010.) See 11 USC 109(e). To file a Chapter 12 case, an individual must meet the definition of family farmer and have regular annual income. See 11 USC 109(f). An individual’s ability to file a bankruptcy case or obtain the benefit of the automatic stay may also be limited by previous bankruptcy cases.



For help-Flint Michigan, Terry Bankert 810-235-1970 Flint Lawyer Attorney practicing in Family Law and Bankruptcy
http://goodmorningflint.blogspot.com

Michigan Family Law ch 17 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=17 (last updated 09/30/2011

CPS GIVE DAD CHILD FOR ALMOST A YEAR AND IT DOES NOT CHANGE THE CUSTODIAL ENVIRONMENT.

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/

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Family Law attorney Bankert can be reached at http://www.attorneybankert.com
or 1-810-235-1970.

Matrimonial law and burden of proof

Under construction 5/3/11