Articles Posted in Custody issues

Whether the court is determining the initial child custody order, or modifying the order after a judgment has been entered, they will consider the “best interest factors.” The best interest factors help the referee or judge determine what custody or parenting time arrangement is truly in the best interests of the children.

Some factors may favor you, or they may favor your spouse. The amount of weight given to each factor is a matter of interpretation for the judge or referee.

You may want to review these factors and consider the potential strengths and weaknesses in your case. This will allow us to formulate a strategic approach to securing custody of your children.
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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.

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.

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.

It is important to comply with your parenting time order at all times. Please keep in mind that holiday parenting time differs from your regularly scheduled parenting time. Holiday parenting time will “trump” your regular parenting time schedule.

If the other parent is refusing to allow you to see your child, you have several options to enforce your parenting time order:

1.) Many police departments will tell you to deal with the situation though the court; however, some police officers will escort you to the other parent’s house, and ensure that the child is with the correct parent, pursuant to your court order, or 2.) You can file an emergency ex-parte order to show cause. A show cause hearing will require the non-cooperating parent to explain to the court why they should not be held in contempt of court, for failing to comply with the court order.

A bill has been proposed to protect military members in child custody cases while serving overseas. The proposed bill responds to a Lenawee County judge’s decision to order a sailor to come to court despite him being aboard a U.S. submarine. The legislation would prohibit judges from modifying parenting time if a motion is filed to suspend the case while the military member is away.

Pursuant to the Servicemembers Civil Relief Act, you are provided the protection of a stay of court and administrative proceedings while you are on active duty. You can obtain a stay or postponement of court proceedings if your military service materially affects your ability to proceed in the case. SCRA provides for an automatic stay of ninety days, when you request the protection in writing. Any additional delay beyond the mandatory ninety-day stay period is awarded at the discretion of the judge, magistrate, or hearing officer.

If you are in the divorce process, or if your child’s other parent is attempting to change custody or parenting time, it is important to know your rights. As shown above, it is essential to notify the court in writing if you are away, so that changes cannot take place without your opportunity to appear in court. It is also important to take into consideration your various relocations and absences, when determining an appropriate custody and parenting time agreement.

An article was recently published by USA Today, describing the legal issues that same-sex couples face when trying to divorce. Since not all states recognize same-sex marriages, divorce proves near impossible. Even if the couples try to divorce in a state that does recognize the marriage, they often face hurdles with residency requirements (i.e. they must live in the state they are filing in for at least six-months, in order to file for divorce in that state).

Moreover, even more complications arise when the same-sex couple has a child. When a child is born through artificial insemination, some courts provide no protection for the other party, because in the eyes of the state, they weren’t married when the child was born. Thus, there is somewhat of a bias toward a biological parent in the same-sex relationship.

The article brings up interesting issues, since the courts are not as familiar with these situations. As more couples have non-traditional families, the Friend of the Court will need to adapt and update its policies on custody and parenting time issues, when a child is technically only born to one of the parties.

The Michigan Court Rules allow a family law judge to delegate his/her authority to a referee for recommendations regarding custody, parenting time and child support disputes. The referee essentially has the same authority as a judge to hear evidence and make a ruling on but the ruling is not final. . . it is merely a recommendation. Usually, either party has 21 days to object to the recommendation (some counties such as Macomb will reduce the objection period to 7 days in cases where the recommendation is made the same day as the hearing); if no one objects, the recommendation is ultimately signed by the judge and becomes the order of the court. Thereafter, you can only challenge the ruling if you encounter a substantial change in circumstances.

It is important to note that the referee hearing is only a preliminary step in the process. While judges do give some level of deference to the referee recommendations, the judge has an obligation to hear all of the evidence related to a custody, parenting time or child support dispute if one of the parties objects to the referee recommendation. At the referee hearing, you may submit documentary evidence to support your position but other than the parties, there will not usually be testimony (a full scale trial type investigation can be ordered by the judge but is not the usual procedure). The referee’s function is to try and make a recommendation that best fits the situation at hand so as to bring the matter to resolution and avoid protracted litigation. However, if you do not like the recommendation, you may file your objection and then the matter will be set for a hearing by the judge.

I have frequently objected to referee recommendations because my client felt that the referee missed an important fact (or facts). As stated, the referee hearing is not usually a full trial so once your matter is scheduled for a full evidentiary hearing before the judge, you will be expected to come forward with all of your evidence (i.e. witnesses, documents, etc.). So, if you are not happy with a referee recommendation, all is not lost. You will have your day in court and it is very possible to convince a judge that the referee’s recommendation was not in the best interests of the children.

When I finalize a divorce judgment, I try to take the time to walk my client through the judgment of divorce to give him/her tips on how to stay out of court. When children are involved and the divorce was fairly contentious, there may be problems between the parents and the kids get caught in the cross-fire. Of course, it should go without saying that the kids should not be brought in the arguments between the divorced parents. Sadly, many parents lose sight of this basic rule of thumb and allow their kids to witness boorish, if not abuse behavior between the parents.

So, in order to avoid this stress and in an effort to foster an environment where the parties can co-parent, I give my client two words to follow in their post-divorce life: courteous and professional. That is, always speak to your ex-spouse politely and in a professional manner. Your ex-spouse may try to get on your nerves and/or try to bait you. . .don’t bite. Simply ignore the undesirable behavior and keep your communications brief. Now, this doesn’t mean that you should give your ex-spouse the cold shoulder or refuse to have social interaction with your ex-spouse. Use common sense. It’s certainly better if the two of you can get along; it helps the children adjust if they know their parents get along. In some cases, where the parties don’t get along, the kids will play one parent against the other in an effort to get his/her way.

Another effective strategy to bring peace to your post-divorce life when there are kids involved is to document all of your communications with your ex-spouse. I always recommend the use of e-mail. Texting works for money divorced parents but if you have an ex-spouse you cannot trust, then text messaging may not be the best mode of communication. Even if you receive a call from your ex, to the extent you believe necessary, follow up the call with an email. Some jurisdictions have family communication services where you send all of your messages to your ex in a monitored site where all communications are saved so there can be no manipulation of words as they are preserved! Of course, the better you get along as ex-spouses, the better it is for the kids and hopefully, you can communicate without needing to document every word you utter to each other.