FLINT CUSTODY DECISIONS a review of the law. Terry Bankert 235-1970 Flint Divorce Lawyer


FAMILY LAW ARTICLE 12/18/12
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WHAT IS A CUSTODIAL ENVIRONMENT by Flint Divorce Attorney Terry Bankert 235-1970

Issues:

1.Child Custody; Whether the Crawford Circuit Court trial court properly determined that there was an established custodial environment (ECE) with only defendant; Berger v. Berger; Kessler v. Kessler;

2.Claim that the trial court erred by not making the “proper cause or change in circumstances” determination as required by MCL 722.27(1)(c) before moving on with the Child Custody determination;

3. Waiver; Sherry v. East Suburban Football League; City of Plymouth v. McIntosh; Whether the trial court’s findings for three of the best-interest factors (b, c, and d) were against the great weight of the evidence; Pierron v. Pierron; The Child Child Custody Act (MCL 722.21 et seq.); Harvey v. Harvey; Fletcher v. Fletcher

This opinion presented here with m,odification by Flint Divorce Attorney Terry Bankert 810-235-1970 http://www.atorneybankert.com

CASE REVIEWED

Court: Michigan Court of Appeals (Unpublished) November 29, 2012
v No. 311483
Lower trial court :Crawford Circuit Court LC No. 2009-007883-DP
Case Name: Howard v. Dohring
e-Journal Number: 53365
Judge(s): Per Curiam – Borrello, Fitzgerald, and Owens

The Michigan Appeals court held, inter alia, that based on its review of the record, the Crawford Circuit Court trial court’s determination of an ECE with only the defendant-mother was accurate and its findings were thoroughly supported by the evidence presented.

Thus, the Michigan Appeals court affirmed the order , of the Crawford Circuit Court granting primary full physical Child Custody to defendant. mother

The plaintiff-father argued that the trial court erred in determining that there was an ECE with only defendant.

The Crawford Circuit Court trial court offered a very detailed explanation of its determination that there was no ECE with plaintiff at the time it made its decision.

The Crawford Circuit Court trial court explained that although plaintiff may have had an ECE at one time, his actions eroded that environment.

The Crawford Circuit Court trial court also determined that “[r]egardless of how much [plaintiff] was present, . . . when he was present, others were providing the overwhelming amount of care for the minor child.”

There was evidence presented that plaintiff was not the individual providing care for the child and that plaintiff missed parenting time.

The Crawford Circuit Court trial court was in a better position to determine the credibility of the witnesses, and the evidence presented supported its decision that plaintiff was not the parent that 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 MICHIGAN COURT OF APPEALS review of the case background.

Father Plaintiff appeals as of right from the July 10, 2012 order granting primary full physical
custody to defendant. For the reasons set forth in this opinion,The Michgan Court of Appesals affimed.

This appeal arises from a dispute between plaintiff and defendant who have a minor child
together but were never married. The parties entered into a consent order for custody, parenting
time, and child support where the parties had joint physical and legal custody in a week on/week
off arrangement.

In May 2011, as the result of an apparent agreement between the parties, an
order was filed to change custody so that defendant had sole physical and legal custody and
plaintiff had parenting time on alternating weekends.

However, plaintiff later moved to reverse the order, asserting that he was coerced into signing the agreement.

Plaintiff’s motion was denied by the referee on September 20, 2011, and plaintiff objected to the referee’s determination.

The trial court reversed the referee, vacated the May 2011 custody order, and
remanded to the referee for evaluation of an established custodial environment and the bestinterest
factors.

The referee determined that there was an established custodial environment with
only defendant.

The referee also made findings for each of the best-interest factors and
determined that it was in the child’s best interests to be with defendant and recommended
granting full physical custody to defendant.

Plaintiff objected to the referee’s findings and
recommended order and the trial court conducted a de novo review.

After the de novo review the trial court determined that there was an established custodial environment with defendant and not plaintiff.

The trial court also determined that sole physical custody with defendant was in the
best interests of the minor child. This appeal ensued.

On appeal, plaintiff argues that the Crawford Circuit Court trial court erred by not making the proper cause or change in circumstances determination as required by MCL 722.27(1)(c) before moving on with the custody determination.

Father- Plaintiff cannot now assert that the Crawford Circuit Court trial
court failed to find proper cause or a change in circumstances because Father – plaintiff agreed the
necessary determination had been made.

The Michgian Court of Appeals held this issue was waived and therefore is not
subject to review. Waiver is the knowing or voluntary abandonment of a known right.
Sherry v East Suburban Football League , 292 Mich App 23, 33; 807 NW2d 859 (2011). Once an issue has been waived it cannot then be raised as an error on appeal.

City of Plymouth v McIntosh, 291 Mich App 152, 164; 804 NW2d 859 (2010). Moreover, contrary to plaintiff’s assertion on appeal, the trial court did find a change of circumstances in order to justify reviewing custody, based upon
A.the child’s attaining school age and
B.plaintiff’s lack of ability or willingness to help
the child attend school.
Father -Plaintiff does not challenge the adequacy of the Crawford Circuit Court trial court’s proper
cause or change in circumstances determination and therefore we will not review it.

Next,father- plaintiff argues that the Crawford Circuit Court trial court erred in determining that there was an established custodial environment with only defendant. Determining the existence of an
established custodial environment is a question of fact. Berger v Berger, 277 Mich App 700,
706; 747 NW2d 336 (2008).

A Crawford Circuit Court trial court is required to make a
determination of whether an established custodial environment exists with one or both parents
before making any custody decisions. Kessler v Kessler, 295 Mich App 54, 61; 811 NW2d 39
(2011).

WHAT IS A CUSTODIAL ENVIRONMENT?
A.PRIMARY CONSIDERATIONS
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for
1.guidance,
2.discipline,
3.The necessities of life,
4. and parental comfort.
B.SECONDARY CONSIDERATIONS
1.The age of the child,
2. the physical environment,
3.and the inclination of the custodian and the child as to permanency
of the relationship shall also be considered. . . . MCL 722.27(1)(c).

A Crawford Circuit Court trial court can determine that an established custodial environment exists in multiple homes. Berger , 277 Mich App at 706-707.

THE CRAWFORD CIRCUIT COURT DID IT’S JOB.

The Crawford Circuit Court trial court offered a very detailed explanation of its determination that there was no established custodial environment with plaintiff at the time it made its decision. The trial court explained that although plaintiff may have had an established custodial environment at one time,
plaintiff’s actions eroded that environment.

THE STRESS OF TRIAL CAN DESTROY THE CUSTODIAL ENVIRONM,ENT

See Bowers v Bowers (After Remand), 198 Mich App 320, 326; 497 NW2d 602 (1993)
1.(“where there are repeated changes in physical custody
2. and uncertainty created by an upcoming custody trial,
3. a previously established custodial environment is destroyed. . . .”)

JUST BEING PRESENT FATHERS IS NOT ALWAYS ENOUGH

The Crawford Circuit Court Trial court also determined that ;
.“[r]egardless of how much [plaintiff] was present, . . . when he was present, others were providing the overwhelming amount of care for the minor child.”
1.There was evidence presented that plaintiff was not the individual providing
care for the child and
2. that plaintiff would miss parenting time.

The Crawford Circuit Court found FATHER plaintiff was not the parent that over “an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”
Berger, 277 Mich App at 706-707; MCL 722.27(1)(c).

[T]he Crawford Circuit Court trial court determination of established custodial environment was accurate and its findings thoroughly supported by the evidence presented.

Father – plaintiff argues that the trial court’s findings for three of the best-interest factors
were against the great weight of the evidence.

The Child Custody Act, MCL 722.21
et seq., promotes the best interests of the child and
is used to govern custody disputes.
Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835
(2004).

Based on the act, the trial court is obligated to consider the best-interest factors laid out
in MCL 722.23 when resolving custody disputes:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.

The Crawford Circuit Court trial court’s failure to discuss every piece of evidence does not suggest that any evidence was overlooked.

FATHERS ARGUMENT

Plaintiff argues that the trial court’s findings for factor (b) were in error because;
1. plaintiff has been involved in the child’s life while
2.defendant exposes the child to dangerous individuals.

While there was testimony that defendant’s friends and relatives have criminal records, her
testimony was that ;
1.the child had not been exposed to some of these people,
2. and as to the others,
would never be left alone in their company.

The Crawford Circuit Court trial court then went on to discuss the guidance and
education component of this factor.
The Crawford Circuit Court trial court found this favored defendant because
1.defendant was concerned with the minor child getting social interaction, and
2. plaintiff disregarded the school schedule in favor of visitation.

3.plaintiff “decided to take actions that interfered with the
educational pursuits for the child.”

4.plaintiff intentionally withheld the child from pre-school, claiming that it interfered with his parenting time
5.and he was unable to drive the minor to school because he does not possess a driver’s license.

Plaintiff also argues that the trial court erred in determining factor (c) because plaintiff is
able to provide for his son through work, his family, or his college fund, while defendant made
only minimum wage.

However, the trial court heard testimony that
1. plaintiff was unemployed
and
2.did not appear to be seeking employment.
3. Instead, plaintiff relied on his mother, his
girlfriend, and his college fund for financial support.

The trial court did not err in determining that defendant’s employment made her better suited to provide for the minor child’s needs.

Plaintiff’s reliance on others to provide for the minor child “is not exactly a sustainable long term
plan to provide for a minor child.” The trial court’s determination was not against the great
weight of the evidence.

Father plaintiff argues that the trial court erred in its determination of factor (d) because
1.the minor child has had a stable environment with plaintiff in plaintiff’s mother’s home.
2. The trial court determined that
a.“Both parties have moved a fair amount over the last three years. So,
b.neither has provided a truly stable environment.”
c.There was evidence that defendant had moved
four times in the past three years.
d.But there was also evidence that plaintiff had lived in several
other places and was living with his moth er between homes.

The trial court addressed plaintiff’s residence in factor (e) and said
1., “Looking at the record as a whole, the home of the Grandmother
is a good place for the minor child but
2. does not necessarily appear at various times in this case to
be the residence of the Plaintiff.”
3.The trial court appeared to acknowledge that although
plaintiff’s mother’s house was a good environment for the minor child, it was not plaintiff’s
residence at all times.
4. Additionally, the trial court was making determinations on plaintiff and
defendant, not plaintiff’s mother, plaintiff, and defendant.

Affirmed. Defendant having prevailed may access costs. MCR 7.219.
/s/ Stephen L. Borrello
/s/ E. Thomas Fitzgerald
/s/ Donald S. Owens

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