GENESEE COURT GIVES DAD CHANGE OF CUSTODY , COURT OF APPEALS TAKES IT AWAY.BY Flint Divorce Attorney 235-1970.

#TERRY TALKS “Ideas worth sharing “

# 11/05/13 , -TOPIC #Change of #Child #Custody in #Michigan.

The Defendant mother appeals as of right the Genesee trial court’s order granting Father plaintiff’s motion to change custody with respect to the parties’ minor child. The Michigan Court of Appeals reversed and remand for a determination by
the Genesee County trial court whether there existed proper cause or a change of circumstances, as necessary to modify the previous custody award.

To be clear,The Michigan Court of Appeals held that the determination of proper
cause or a change of circumstances is a mandatory ruling that must expressly be made by the trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances  exists.

On remand, the trial court is to rule on whether there was proper cause or a change of circumstances. The existing evidentiary record should be sufficient to make the determination, but the trial court is free to entertain additional proofs if the court deems it necessary. The Vodvarka decision provides an excellent discussion of what constitutes proper cause and a change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at 509-514. Should the trial court rule that the threshold burden was not satisfied, the court shall
deny plaintiff’s motion to change custody. Should the trial court rule otherwise, defendant, if desired, can pursue a new appeal relative to the threshold ruling.

By Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group www.terrytalks.com

DATE:11/05/13

TIME:7:00 am

Issues discussed in this presentation  are :

Motion to change custody;

Whether “proper cause” or “a change of circumstances” (COC) existed;

MCL 722.27(1)(c);

Vodvarka v. Grasmeyer; In re Anjoski;

Mitchell v. Mitchell; MCL 722.24(1); Harvey v. Harvey; “Established custodial environment” (ECE)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bangs v. Groulx

e-Journal Number: 55655

Judge(s): Per Curiam – Murphy, Cavanagh, and Stephens

UNPUBLISHED ,October 22, 2013 , Michigan Court of Appeals No. 314566

Genesee Circuit Court  Family Division  LC No. 08-285186-DP

DECISION OF THE MICHIGAN COURT OF APPEALS

FATHERS WIN WAS REVERSED

 

The Michigan  Court of Appeals decided  that “the determination of proper cause or a change of circumstances is a mandatory ruling that must expressly be made by the  Genesee County trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances exists,” the Michigan Court of Appeals  reversed the Genesee County Family Court, the trial court’s order granting the plaintiff-father’s motion to change custody of the parties’ child and remanded.

LOCAL TRIAL COURTS ARE USUALLY UPHELD

Local Courts are usually upheld.with respect to child custody disputes, “all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

MCL 722.28. MCL 722.27 provides in relevant part:

(1) 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[.]

VODVARKA CASE

The seminal case on the threshold inquiry of whether there existed proper cause or a

change of circumstances for purposes of modifying a custody order is of course Vodvarka v

Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003). In construing MCL 722.27(1)(c), the

Vodvarka panel stated that the party seeking a change in custody must establish, by a

preponderance of the evidence, either proper cause or a change of circumstances, and if the

movant fails to so establish, “the court is precluded from holding a child custody hearing.”

Vodvarka, 259 Mich App at 508-509; see also In re Anjoski, 283 Mich App 41, 53; 770 NW2d 1

(2009).1

BURDEN TO SHOW PROPER CAUSE OF CHANGE IN CIRCUMSTANCES

Absent satisfaction of the burden to show proper cause or a change of circumstances, a

trial court is not authorized under the statute to revisit a valid prior custody decision and to

engage in reconsideration of the statutory best-interest factors. Vodvarka, 259 Mich App at 508-

509. The purpose of requiring proper cause or a change of circumstances, as well as requiring

clear and convincing evidence to change an established custodial environment, is to erect a

barrier against removing a child from an established custodial environment except in compelling

cases. Id. at 509; Anjoski, 283 Mich App at 53.

UNDERLYING JUDGEMENT

A 2010 consent judgment awarded the parties joint legal and physical custody of their child. In 2012, plaintiff moved to modify custody, seeking sole or primary physical custody.

He “set forth a litany of allegations” he claimed constituted proper cause or a COC. In her response, the defendant-mother denied all of the allegations.

The Genesee  trial court conducted a five-day evidentiary hearing on the motion.

“On the first day before testimony was taken, defendant asserted that plaintiff had not satisfied the threshold of showing proper cause or a change of circumstances.

” The trial court indicated that if she filed a written motion on the issue, it would consider it at the end of plaintiff’s proofs.

Defendant never filed the motion, and she never mentioned the issue again.

FINDING OF THE GENESEE TRIAL COURT

The Genesee  trial court found that there was a joint ECE…[ joint established custodial

environment…]with both parties and that there was clear and convincing evidence, upon examination of the statutory “best interest” factors, to modify physical custody and award sole custody to plaintiff.

It never expressly ruled on whether proper cause or a COC were shown.

See MCL 722.23 (best-interest factors); MCL 722.27(1)(c) (established custodial

environment cannot be changed absent “clear and convincing evidence” that the change “is in the

best interest of the child”).

The Michigan Court of Appeals  noted that “there is no error in conducting a single evidentiary hearing” encompassing (1) whether there exists proper cause or a COC […CHANGE OF CIRCUMSTANCES…] as needed to modify custody, (2) a determination of the child’s ECE, bearing on the burden of proof, (3) an examination of the best interest factors, and (4) a ruling on the custody motion.

However, Mitchell indicates that the issue of “proper cause or a change of circumstances must be the first issue reviewed and resolved by the trial court.”

GENESEE COURT COMMITTED ERROR

The Appellate court held that the Genesee  “trial court committed clear legal error in directing defendant to file a motion on the threshold issue, given that the burden was on plaintiff as movant to prove that the threshold was met by the preponderance of the evidence” and that defendant denied the allegations.

Further, regardless of whether defendant failed to preserve her appellate arguments or she completely waived them, the Appellate  court could not affirm – reversal and remand was necessary.

Regardless of whether defendant failed to preserve her appellate arguments or, even

further, completely waived the arguments, The Michigan Court of Appeals  affirm and reversal and remand is

necessary. “In all actions involving dispute of a minor child’s custody, the..[Genesee..] court shall declare the

child’s inherent rights and establish the rights and duties as to the child’s custody, support, and

parenting time in accordance with this act.” MCL 722.24(1) (emphasis added). The Michigan Court of Appeals held  that even if defendant had expressly agreed that there existed proper cause or a change of

circumstances, the trial court was nevertheless required to address the issue at some level and

make a ruling on the record.

SENT BACK TO GENESEE TRIAL COURT

On remand, the Genesee  trial court is to rule on whether there was proper cause or a change of

circumstances. The existing evidentiary record should be sufficient to make the determination,

but the trial court is free to entertain additional proofs if the court deems it necessary. The

Vodvarka decision provides an excellent discussion of what constitutes proper cause and a

change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at

509-514. Should the Genesee  trial court rule that the threshold burden was not satisfied, the Genesee Trial  court shall deny plaintiff’s motion to change custody. Should the Genesee  trial court rule otherwise, defendant, if

desired, can pursue a new appeal relative to the threshold ruling.

[This article is a mix of the e-journal and the Unpublished case with modifications by this author for social media presentation. DO NOT rely on this content without seeking legal counsel.][cya]

-Terry-

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

– BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRY ON YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY  on FLICKR –http://www.flickr.com/photos/30366181@N05/

_________________________________________________________________

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WHAT’S NEXT FOR FLINT?

 

#TERRY TALKS “Ideas worth sharing “

#FLINT, #EMERGENCY MANAGER,#SNYDER

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group  terrytalks consider joining to continue this discussion.

DATE: 10/22/13

TIME:5:00 AM

see: www.terrytalks.com

WHATS NEXT FOR FLINT?

 

Flint is on its third emergency manager this year, but Gov. Rick Snyder said there are still financial issues in the city that need to be worked out. [1] Has the battleground been prepared for a Flint Bankruptcy? How can the work be done in months. Are draconian changes in store? [trb]

see: www.terrytalks.com

 

WHY ARE WE NOT READY

The city is not yet ready to be without an emergency manager, Snyder said Monday, Oct. 21. [1]

It is logical to me that Governor Snyder fired Michael Brown the past Flint Emergency Manager and his State Treasurer Andy Dillion bringing in current Flint Emergency Manager Darnell Earley because his objective have not been met. Just how will Earley complete his job in months?

WHAT WORK IS YET TO BE DONE.

“There’s still work to be done in Flint,” Snyder said. “But I hope it’s a matter of months (for an emergency manager to be phased out[1]

 

WHAT DO WE DO WHEN SNYDER AND HIS EMERGENCY MANAGER QUIT RUNNING FLINT?

I ask often is Flint capable of electing leadership up to the job? The answer is yes, but good people  in political office need your help. Help by insisting that your representative make  the objective of the living document capable of change the “ NEW FLINT MASTER PLAN” a reality. Insist that your elected officials cause a ballot question for the election of a Flint Charter Commission.

SHOULD WE  REORGANIZE HOW OUR CITY IS RUN?

I suggest that you the real leaders of Flint commit to real long term change in Flint. Get active in Charter Revision.

 

“An elected charter revision commission would study the charter, propose changes and then the potential tweaks to the charter would be put to a vote, Kincaid said. The process would take a year and a half.” Flint Journal 09/22/13

 

“I think it’s time right now that we put a charter revision commission in and take a look at that,” Kincaid said. “If you look at what the charter revision commission did back in the 1970s – it lasted 30 years. For something that is going to take effect for the next 20 or 30 years, I think it’s something that you take the time, not just rush to judgment on.”

Flint Journal 09/22/13

 

I agree. [trb]

FLINT CHARTER REVISION,

 

From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Home_Rule_Cities_Act_(Michigan)

The Home Rule City Act was enacted by the Michigan Legislature as Public Act 279 of 1909. This statute provides the framework by which a new city may become incorporated and provide for its own government by adopting a city charter. It also provides for the method by which an existing city may amend or revise its city charter.[Wikipedia]

DEMAND THAT  THE FLINT MASTER PLAN BE OPERATIONALIZE BY THE ELECTION OF A FLINT CHARTER COMMISSION. IT IS THE RESPONSIBLE THING TO DO.

The Flint Master Plan will be adopted with in 30 days. Then  the adoption of the City Zoning changes to operationalize part of the plan within 6 months. But how do we as citizens  put our  Flint Municipal Government on track to create  our IMAGE of Flint. I suggest election of a Charter Commission to make our local contract with the Citizens compatible with our objectives in the New Flint Master Plan.[trb]

 

A Master Plan is a policy document that provides a foundation for City decision-making on issues related to land use, development, community facilities, parks and open space, and much more.[3]

 

I suggest you attend the following.

[2]

 

I suggest that you consider joining or creating a  collective decentralized effort to decide what’s next after adoption of the Flint Master Plan.

 

Lets get moving before the emergency manager leaves.

 

end- Terry Talks www.terrytalks.com

sources;

[1]

MLIVE By Sarah Schuch | sschuch@mlive.com

on October 21, 2013 at 6:15 PM, updated October 21, 2013 at 8:52 PM

[trb]

Comments of Terry Bankert cited [trb] of BLOCK HEADLINE.

[2]

http://www.imagineflint.com/Documents/MapGallery.aspx

[3]

www.imagineflint.com

 

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-TERRY TALKS  MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

-TERRY TALKS  BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRYTALKS   YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY TALKS   FLICKR –http://www.flickr.com/photos/30366181@N05/

– TERRY TALKS  LEGAL ASSISTANCE www.attorneybankert.com

_________________________________________________________________

 

WHAT’S NEXT FOR FLINT AFTER ADOPTION OF FLINT’S NEW MASTER PLAN?

 

#TERRY TALKS “Ideas worth sharing “

#FLINT, #EMERGENCY MANAGER,#SNYDER

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group  terrytalks consider joining to continue this discussion.

DATE: 10/22/13

TIME:5:00 AM

see: www.terrytalks.com

WHATS NEXT FOR FLINT?

 

Flint is on its third emergency manager this year, but Gov. Rick Snyder said there are still financial issues in the city that need to be worked out. [1] Has the battleground been prepared for a Flint Bankruptcy? How can the work be done in months. Are draconian changes in store? [trb]

see: www.terrytalks.com

 

WHY ARE WE NOT READY

The city is not yet ready to be without an emergency manager, Snyder said Monday, Oct. 21. [1]

It is logical to me that Governor Snyder fired Michael Brown the past Flint Emergency Manager and his State Treasure Andy Dillion bringing in current Flint Emergency Manager Darnell Earley because his objective have not been met. Just how will Earley complete his job in months?

WHAT WORK IS YET TO BE DONE.

“There’s still work to be done in Flint,” Snyder said. “But I hope it’s a matter of months (for an emergency manager to be phased out[1]

 

WHAT DO WE DO WHEN SNYDER AND HIS EMERGENCY MANAGER QUIT RUNNING FLINT?

I ask often is Flint capable of electing leadership up to the job? The answer is yes, but good people  in political office need your help. Help by insisting that your representative make  the objective of the living document capable of change the “ NEW FLINT MASTER PLAN” a reality. Insist that your elected officials cause a ballot question for the election of a Flint Charter Commission.

SHOULD WE  REORGANIZE HOW OUR CITY IS RUN?

I suggest that you the real leaders of Flint commit to real long term change in Flint. Get active in Charter Revision.

 

“An elected charter revision commission would study the charter, propose changes and then the potential tweaks to the charter would be put to a vote, Kincaid said. The process would take a year and a half.” Flint Journal 09/22/13

 

“I think it’s time right now that we put a charter revision commission in and take a look at that,” Kincaid said. “If you look at what the charter revision commission did back in the 1970s – it lasted 30 years. For something that is going to take effect for the next 20 or 30 years, I think it’s something that you take the time, not just rush to judgment on.”

Flint Journal 09/22/13

 

I agree. [trb]

FLINT CHARTER REVISION,

 

From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Home_Rule_Cities_Act_(Michigan)

The Home Rule City Act was enacted by the Michigan Legislature as Public Act 279 of 1909. This statute provides the framework by which a new city may become incorporated and provide for its own government by adopting a city charter. It also provides for the method by which an existing city may amend or revise its city charter.[Wikipedia]

DEMAND THAT  THE FLINT MASTER PLAN BE OPERATIONALIZE BY THE ELECTION OF A FLINT CHARTER COMMISSION. IT IS THE RESPONSIBLE THING TO DO.

The Flint Master Plan will be adopted with in 30 days. Then  the adoption of the City Zoning changes to operationalize part of the plan within 6 months. But how do we as citizens  put our  Flint Municipal Government on track to create  our IMAGE of Flint. I suggest election of a Charter Commission to make our local contract with the Citizens compatible with our objectives in the New Flint Master Plan.[trb]

 

A Master Plan is a policy document that provides a foundation for City decision-making on issues related to land use, development, community facilities, parks and open space, and much more.[3]

 

I suggest you attend the following.

[2]

 

I suggest that you consider joining the collective decentralized efforts to decide what’s next after adoption of the Flint Master Plan.

 

Lets get moving before the emergency manager leaves.

 

end- Terry Talks www.terrytalks.com

sources;

[1]

MLIVE By Sarah Schuch | sschuch@mlive.com

on October 21, 2013 at 6:15 PM, updated October 21, 2013 at 8:52 PM

[trb]

Comments of Terry Bankert cited [trb] of BLOCK HEADLINE.

[2]

http://www.imagineflint.com/Documents/MapGallery.aspx

[3]

www.imagineflint.com

 

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-TERRY TALKS  MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

-TERRY TALKS  BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRYTALKS   YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY TALKS   FLICKR –http://www.flickr.com/photos/30366181@N05/

– TERRY TALKS  LEGAL ASSISTANCE www.attorneybankert.com

_________________________________________________________________