Pending the entry of a temporary order, the court may enter an ex-parte order if the court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued. MCR 3.207
In Rinvelt v. Rinvelt, 190 Mich App 372, 380; 475 NW2d 478, 482 (1991), the Court of Appeals held that prenuptial agreements governing the division of property in the event of divorce are enforceable if the following criteria is met:
1.) Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?
2.) Was the agreement unconscionable when executed?
Under the Child Custody Act, proper cause or a change in circumstances 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.
To establish proper cause, necessary to revisit a child custody order, not just any fact relevant to the twelve statutory best interest factors will constitute sufficient cause; rather, the grounds presented must be legally sufficient (i.e. they must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper). MCLA 722.23 (a-l), 722.27(1)(c).
The court in Killingbeck v. Killingbeck, 269 Mich. App. 132 (2005), stated that not just any change will suffice to establish a change in circumstances; the evidence must demonstrate something more than the normal life changes 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.
Where a change of custody is sought, the initial inquiry is whether there is an established custodial environment.
An established custodial environment (ECE) is an environment 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. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and performance.” Berger v. Berger, 277 Mich. App 700 (2008).
Determining which party has the ECE is a question of fact. The court may find that an ECE exists with both parents.
Child support is based upon a formula that takes into consideration the incomes of both parties, the amount of overnights the payor has with the child, health care costs, child care costs, and tax exemptions.
Child support is generally paid through the Friend of the Court, which will keep track of, and enforce, child support obligations.
For more information on child support, contact the attorneys at SMDA, P.C.
There are two types of custody that will be determined in a custody or divorce case.
Legal custody involves major decisions affecting the child, including, but not limited to schooling, healthcare, and religion. Physical custody refers to the time spent with each parent.
Custody differs depending on the situation. It is typical for legal custody for be joint. Physical custody can be joint (roughly half of the time is spent with the mother and half of the time with the father) or sole (one parent has the majority of the time with the children). If one party has sole physical custody, then the other parent will generally have a set parenting time plan.
There are several case codes that you should be familiar with when filing a family law case. The court will require different standards of proof and different procedures, depending on which type of family case is filed.
DP – A DP case is a case to establish paternity. A paternity case can be filed by either party, who is looking to establish paternity, either to initiate child support or parenting time. A paternity case is not necessary if a father is on the birth certificate, or has signed an affidavit of parentage.
DC – A DC case is filed by unmarried parents, who are looking to establish custody and/or parenting time.
Answers to frequently asked questions regarding filing for divorce:
1.) Do I need an attorney to file for divorce?
Answer: No. However, it is in your best interest to consult with an attorney when filing for divorce. Often times we hear from clients who have initiated the process themselves, and their case ends up getting dismissed. If you want to ensure that all of the documents are properly filed with the court, and that your divorce is wrapped up as quickly and seamlessly as possible, it is best to hire an attorney.
If you are a party to a divorce case in Oakland County, and you have minor children, you will receive notice of your Early Intervention Conference (EIC).
The EIC is the first hearing held on divorce cases involving minor children. The EIC is held at the Friend of the Court 56 days after the filing of the Complaint. The case is heard by the Referee assigned to the case. Both parties and attorneys must attend.
The EIC provides the Court with a summary of the case and status. If needed, your Referee may refer the matter of child support, custody, and/or parenting time for investigation and recommendation.
The Medical Marijuana Act states that a person shall not be denied custody or visitation of a minor for acting in accordance with the act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated. MCL 333.26424(c).
Thus, if you have concerns that your child is in unreasonable danger, you must have specific, identifiable, and admissible evidence that substantiates your claim. Keep in mind, that the court’s main objective is looking out for the best interest of the minor child(ren). The court must weigh the alleged danger to the child, with the need for the child to have a relationship with both parents.
If you are dealing with medical marijuana use in a child custody case, please contact the attorneys of Serafini, Michalowski, Derkacz & Associates, P.C. at (586) 264-3756.