Divorce , joint custody and Family Law by Flint Divorce Attorney Terry Bankert 235-1970


FLINT DIVORCE, CHILD CUSTODY LAWYER TAKS ABOUT JOINT CUSTODY.

It is easier to divorce today but both parents are staying more active inn their childrens live, or want to. Sometimes the old bias favoring mothers rears its head.

“…the divorce revolution and the decline of marriage has resulted in a weakening of spousal ties, but we are also experiencing the Indissolubility of parenthood with PARENTS tied together post-separation to a much greater extent than in the past.” [1/269]

“…interest in the nature of the modern family and public policies that affect families.” [1/369]

Today in Michigan there is a presumption of joint custody if one parent asks for it.

Posted here by Flint Divorce Lawyer Terry Bankert 235-1970 with office in downtown Flint across from the court house.

“ A central tenet of the Christian Church over much of the last two Millennium has been the “ indissolubility of marriage .”[1/369] In a time when “…there were very significant religious, social, economic and legal impediments to divorce, divorce was a fault based process with only an innocent spouse able to seek termination of the marraige.[1/369]

Our world is changing and along with it are the roles of parents in child rearing.

“…” divorce revolution” and the spread of no fault divorce.[1/369]

Before there was almost a presumption the father in divorce would abandon the children.

… a failed marriage deserved a decent burial that would allow the parties to have a clean break and get on with their separate lives with each party expected to become self sufficient.”[1/370]

In the divorce revolution the”…focus of the legal process was to allocate the “ assets” of the marraige, including the children.” [1/370]. In this era mother got the children and the father had limited parenting rights usually every other weekend and some holiday time.”[1/370]

In practice , many fathers virtually disappeared from the lives of there children after separation. If the child was born out of wedlock, the father might never have any contcat.” [1/370]

Things are changing.” There has been a dramatic increase in labour force participation for women and a narrowing of the wage gap between men and women.”[1/370]

In many families the woman is now the higher income earner.[1/370]

While in most intact families the woman still plays a dominate role in the domestic sphere , men today are more engaged in child care and household management than their fathers were , and in some cases are the primary caregivers for the children.”[1/370]

Although most shared – parenting arrangements do not involve equal time with both parents, they result in many children spending more time than every second weekend with their fathers , and generally require more collaboration between parents than was the case under the old “sole custody to mother” regime. [1/370]

At the same time, as noncustodial parents, principally fathers, have been given greater rights and opportunities for participation in the lives of their children , greater obligations of child support have been imposed on them.[1/370].

It is hard to change institutions involved in Family law. This can be seen In the Genesee County Mi Friend of the Court Hand Book discussion of Custody.” This paragraph of the Judgement of Divorce dictates which person or organization will have the responsibility for the minor child and make the day to day decisions regarding the child. One of the parents of the child is usually designated as the custodial parent, but the court can decide if another another individual should be custodian.[2]

Michigan has abandoned the presumption favoring the mother as the custodial parent. Custody is contested when more than one party wishes to be the custodial parent and make timely and appropriate response to the court.[2]

No longer is the court seen as the center of the process but rather there is a range of methods for helping separated parents to restructure their relationship.[1/371]

These methods include mediation, collaborative family law, parenting coordination, and judicial case management. A trial is seen as a last resort.[1/371]

The focus is now on trying to help parents develop a cooperative approach that will allow their parenting arrangements to evolve as the circumstances and needs of the children change. [1/371]

Joint vs. Sole Custody. Note that in the definitions section of the statute, MCL §722.22, there is no definition of custody—whether legal or physical.
MCL §722.26a defines “joint custody” as follows:
(7) As used in this section, “joint custody” means an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
MCL §722.26a mandates the manner in which a joint award of custody is to be made:
(1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request. In other cases, joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated.
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
MCL §722.26a (3) distinguishes physical custody, providing
If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents. (emphasis added

The Child Custody Act provides for both sole and joint custody. MCL 722.27. Joint custody means an order of the court in which one or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
MCL 722.26a(7).
The court may award joint legal custody as to decision making but find an award of joint physical custody to be inappropriate. Wellman v Wellman, 203 Mich App 277, 512 NW2d 68 (1994) (joint physical custody denied based on parties’ inability to cooperate and communicate).
Standards for awarding sole or joint custody. In custody disputes, the parents must be advised of the availability of joint custody. MCL 722.26a(1). If the parents agree on joint custody, the court must award joint custody unless the court determines on the record, based on clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.26a(2).
At the request of either party, the court must consider joint custody and must state on the record the reasons for granting or denying the request. MCL 722.26a(1); see Mixon v Mixon, 237 Mich App 159, 602 NW2d 406 (1999) (trial court erred in not stating on the record its reasons for denying request for joint physical custody); see also Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986); Wilcox v Wilcox (On Remand), 108 Mich App 488, 310 NW2d 434 (1981). However, the fact that the trial court must consider an award of joint custody does not create a presumption in favor of it. Wellman.
The court determines whether joint custody is in the best interests of the child by considering the statutory best interests factors (see §3.8) and whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. MCL 722.26a(1).
If the parents cannot agree on essential decisions, sole custody should be awarded. Fisher v Fisher, 118 Mich App 227, 324 NW2d 582 (1982). The question is whether the parents can cooperate on child-rearing issues not whether the parents necessarily get along. Shulick v Richards, 273 Mich App 320, 729 NW2d 533 (2006) (although parties harbored some personal animosity and had some difficulty communicating, not abuse of discretion to award joint legal and physical custody because parties were able to cooperate and reach compromises for best interests of children); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987). Depending on the facts of the individual case, it is not inconsistent to grant joint legal custody while denying joint physical custody. See Dailey v Kloenhamer, 291 Mich App 660, ___ NW2d ___ (2011) (holding that escalation of disagreements between parties and expansion of topics that parties disagreed about constituted sufficient basis for trial court to revisit custody decision and that due to its equitable nature, MCL 722.26a(7) authorizes courts in proper circumstances to grant joint physical custody to parties while granting sole legal custody to one party); Wellman.
When parents with joint legal custody cannot agree on essential matters, the court decides the issue based on the child’s best interests and must make specific findings of fact on the record. Bowers v Vandermeulen-Bowers, 278 Mich App 287, 750 NW2d 597 (2008); Lombardo v Lombardo, 202 Mich App 151, 507 NW2d 788 (1993) (decision regarding child’s educational program). The trial court may not apportion decision-making authority between the parties in the event they cannot agree. Shulick.
It is an abuse of discretion to award joint custody based solely on the court’s preference that custody should be awarded to the parent of the same sex as the child when all other custody factors are equal or weigh in favor of the parent who is not the same gender as the child. Freeman v Freeman, 163 Mich App 493, 414 NW2d 914 (1987) (error to award joint custody when court had found one parent equal or superior to other on nearly all custody criteria).
If there is a dispute regarding where the child will reside, the court must state the basis for a residency award on the record or in writing. MCL 722.26a(5).[3]

Regarding joint custody, MCL 722.26a provides:
(1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request. In other cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in [MCL 722.23].
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
(3) If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
(4) During the time a child resides with a parent, that parent shall decide all routine matters concerning the child.
(5) If there is a dispute regarding residency, the court shall state the basis for a residency award on the record or in writing.
(6) Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
(7) As used in this section, “joint custody” means an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.

[1]
FAMILY LAW QUARTERLY , Vol. 45, No. 3, Fall 2012. Article “ The Evolution of Legal Parenthood” Family Law and the Indissoulubility of Parenthood by Partick Parkinson. Review by Nicholas Bala Professor, Faculty of Law Queens University, Kingston, Ontario, Canada.

[2]

The Friend of the Court Handbook , Genesee County Friend of the Court, 1101 Beach St. County Administration Building, Flint Michigan 48502

[3]
Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 02/03/2012).

[4]
Michigan Family Law ch 12 (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=12 (last updated 02/03/2012).

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3 Comments on “Divorce , joint custody and Family Law by Flint Divorce Attorney Terry Bankert 235-1970”

  1. direct to consumer July 21, 2012 at 2:01 am #

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