WHAT HAPPENS WHEN A CHANGE OF CUSTODY IS ATTEMPTED?


#TERRY TALKS “Ideas worth sharing “
# Motion for Change of Custody #Father loses.

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:10/21/13
TIME:6:00 AM
SEE: http://www.terrytalks.com

At my initial appointments I clearly determine with the potential client what the most recent order of the court is.With underlying judgements of divorce and subsequent modification of parenting time and even custody we must be clear.[trb]

Next I ask the client what’s new that is is important to the child or the child’s “ Best Interest’ There are factors the court must consider. Here the Father did not have the issues to cause a change in custody. What do you think?[trb]

Discussed here are these Issues:

1. Divorce;[1]

2.Custody;1]

3. Motion for change of custody of the parties’ minor child; 1]

4.Great weight of the evidence; 1]

5.MCL 722.28; Pierron v. Pierron; Dailey v. Kloenhamer; Herald Co., Inc. v. Tax Tribunal; “Proper cause” or a [1]
Custody orders “shall be affirmed on appeal unless the trial judge made findings of fact
against the great weight of the evidence or committed a palpable abuse of discretion or a clear
legal error on a major issue.” MCL 722.28; Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480
(2010).[2]

“This Court reviews a trial court’s determination regarding whether a party has
demonstrated proper cause or a change of circumstances under the great weight of the evidence
standard.” Dailey v Kloenhamer, 291 Mich App 660, 665 n 1; 811 NW2d 501 (2011)[2]

Under the “great weight of the evidence” standard, the “trial court’s determination will be affirmed
unless the evidence clearly preponderates in the other direction.” Pierron, 486 Mich at 85.[2]

This Court…HERE THE MICHIGAN COURT OF APPEALS… reviews a trial court’s..HERE THE MACOMB COUNTY FAMILY COURT JUDGE… denial of a motion for reconsideration for an abuse of discretion.
Herald Co, Inc v Tax Tribunal, 258 Mich App 78, 82; 669 NW2d 862 (2003). [2]

6.”change of circumstances” (COC); 1]

7.MCL 722.27(1)(c); 1]

8.Vodvarka v. Grasmeyer; Killingbeck v. Killingbeck; 1]

A party seeking a change in custody must first establish proper cause or a change of
circumstances. MCL 722.27(1) (c); Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d
847 (2003).[1]

If modification or amendment of a custody order would change the established
custodial environment of a child, the moving party must present clear and convincing evidence
that the change is in the best interest of the child. MCL 722.27(1) (c); Vodvarka, 259 Mich App
at 508-509.[2]

The moving party ..HERE THE PLAINTIFF-FATHER…must show proper cause or a change in circumstances since entry of the last custody order, by a preponderance of the evidence, as a precondition to the trial
court’s reconsideration of the established custodial environment and best-interests factors.
Vodvarka, 259 Mich App at 508-509, 514. [2]

To establish a sufficient change of circumstances, “a movant…HERE THE PLAINTIFF-FATHER… must prove that, since entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Id. at 513.[2]

The moving party must “demonstrate something more than the normal life changes (both good or bad) 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.” Killingbeck v Killingbeck, 269 Mich App 132, 145 n 5; 711 NW2d 759 (2005).[2]

9.Deference to the trial court’s superior ability to assess the witnesses’ credibility; McIntosh v. McIntosh;1]
Whether defendant’s relocation constituted a COC; Lustig v. Lustig [1]

SOURCE
Court: Michigan Court of Appeals (Unpublished)
Case Name: Rybinski v. Rybinski
e-Journal Number: 55534
UNPUBLISHED ,October 10, 2013 ,v No. 315383 ,Macomb Circuit Court Family division
LC No. 2006-002077-DM
Michigan Court of Appeals Judge(s): Per Curiam – Beckering, O’Connell, and Shapiro

HERE THE MICHIGAN COURT OF APPEALS UPHELD THE MACOMB COUNTY TRIAL COURT DECISION DENYING FATHER’S MOTION TO CHANGE CUSTODY

The court held that the record showed that the trial court carefully considered the evidence and the issues before determining that the plaintiff-father failed to meet the threshold requirement of establishing a COC. Thus, there was sufficient evidence to support the trial court’s denial of his motion for a change in custody of one of the parties’ children (J).

HISTORY
In a 2007 Judgment of Divorce, the trial court granted the parties joint legal custody of their three children – L, A, and J – and granted physical custody to the defendant-mother.

Plaintiff-FATHER twice sought a change of custody, most recently in 2012.

He received custody of A pursuant to a consent order, but after an evidentiary hearing, the trial court denied his motion as to J.

On appeal, he argued that the trial court’s determination was against the great weight of the evidence.

The court disagreed.

NO CHANGE OF CHANGE OF CUSTODY COC SINCE ENTRY OF THE MOST RECENT ORDER

The record supported the trial court’s determination that there was no COC since the entry of the last custody order.

LOCAL TRIAL COURTS ARE BETTER AT ASSESSING WITNESS CREDIBILITY

In reviewing the trial court’s findings, the court deferred to its superior ability to assess the witnesses’ credibility.

CLEAR HISTORY OF ANIMOSITY

The trial court found “a clear history of animosity between plaintiff and defendant.”

ALLEGATIONS OF DOMESTIC VIOLENCE BUT CPS FOUND NO PREPONDERANCE OF EVIDENCE

It noted that plaintiff’s allegations of a domestic violence incident between A and the defendant’s boyfriend was investigated by CPS, and that CPS had found no preponderance of evidence of abuse or neglect. The trial court noted that there were inconsistencies in A’s statements.

A CHILD WAS INTERVIEWED BY THE JUDGE

Also, the trial court interviewed J in camera, and noted that defendant had terminated her relationship with the boyfriend (she no longer resided with him although she lived in a house owned by him).

NO MATERIAL CHANGE OF CIRCUMSTANCE

“On the basis of the factual findings and the credibility of the witnesses, the trial court validly reasoned that there was no material” COC “warranting reconsideration of the custody order.”

DAD SAID MOM MOVED TO A HOUSE WITH FEWER BEDROOMS

Plaintiff-FATHER also contended that defendant’s relocation, itself, constituted a COC because it reduced the number of bedrooms in her living arrangements.

DAD SAYS THE CHILDREN SHOULD LIVE TOGETHER

He also appeared to argue that A and J should be together in the same household. In support, he cited Lustig.

LUSTIG

The court held in Lustigthat a COC had occurred because the older child had changed residences, and the younger child “prefer[red] to be with his brother and the reasonableness of this preference was not only the main issue at trial, but was the main circumstance considered by the court.” Here, in contrast, the separation of A and J was at least in part the result of A’s reaching the age of 18, and thus, was a “normal life change[] . . . that occur[s] during the life of” a younger sibling.

THE MICHIGAN COURT OF APPEALS AGREED WITH THE FINDING OF THE MACOMB COUNTY FAMILY COURT JUDGE.
In sum, the record demonstrates that the trial court carefully considered the evidence and
the issues before determining that plaintiff failed to meet the threshold requirement of
establishing a change in circumstances. There was sufficient evidence to support the trial court’s
denial of defendant’s motion for a change in custody. [2]

Affirmed.[1]

SOURCES
[1]
Primary Source
Case Name: Rybinski v. Rybinski e-Journal Number: 55534
[2] Case
STATE OF MICHIGAN COURT OF APPEALS ,JAMES MICHAEL RYBINSKI,
Plaintiff-Appellant, vJOAN CHRISTINE RYBINSKI, Defendant-Appellee
UNPUBLISHED October 10, 2013 v No. 315383
Macomb Circuit Court Family division LC No. 2006-002077-DM
Before: BECKERING, P.J., and O’CONNELL and SHAPIRO, JJ

[3]
Comments of Terry R. Bankert P49048 in BLOCK HEADLINE TYPE or cited [trb]

_______________________________________________________
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