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Sunday, January 3, 2010

2009 Michigan Child Custody Update

This post summarizes some of the more interesting 2009 family law decisions from the Michigan Court of Appeals dealing with child custody.

In 2009, the Court of Appeals looked at the interplay between the juvenile code and the child custody act in two important cases.  The first case discussed was published and thus binding precedent; the second case is unpublished and does not bind subsequent courts in Michigan.

In a case from Wayne County, In the Matter of A.P., Mother had sole custody of her child from a paternity action.  She was accused of abusing the child.  The resulting juvenile proceedings re-introduced the child’s biological father into the child’s life.  In the lengthily proceedings, the juvenile court’s rulings intersected and conflicted with prior orders from the family court.

The Court of Appeals held that the juvenile court supersedes the family court:

Once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect. 
 DHS v Gunther is significant as it also addresses jurisdiction via the juvenile code over children that are already under the jurisdiction of the family court.  In this case, Mother had “physical custody” of the parties’ children resulting from a divorce judgment.

The Gunther children came to the attention of DHS due to school truancy allegations resulting in temporary placement of the children with their father.  Mother moved for their immediate return, asserting that the juvenile court referee could not alter the children’s “established custodial environment” without first conducting a hearing, as required by the Child Custody Act.

Again, the Court of Appeals held that once a juvenile court assumes jurisdiction over a minor pursuant to the juvenile code, the juvenile court’s orders supersede all other previous orders; including those issued from a family court.

In Pobanz v Pobanz, the Court of Appeals decided the issue of whether a 17-year old could be court-ordered to participate in parenting time within the context of a custody challenge.  As in the two other cases discussed in this post, Pobanz also featured a co-occurring neglect petition in the juvenile court. 

The trial court stated that it would not force a 17-year to participate in parenting time when she stated that she did not want to see her Father.  Although the Pobanz panel agreed with the trial court that a seventeen year old’s reasonable custody preference is given wide-deference, it held that the lower court erred by not conducting an evidentiary hearing to determine whether the many other statutory factors supported the decision.  The case was sent back to the Huron County Family Court to conduct the hearing.

Surprisingly, the Court of Appeals allowed the trial court to change judges based on the subsequent juvenile case.  The family court judge was first assigned to the Pobanz family in the divorce proceedings, but the trial court transferred the divorce, and Father’s custody motion, to the judge presiding over the subsequent juvenile proceedings.

This ruling is interesting in that it seems to violate the “one family, one judge” concept set forth in 1996 with the creation of the family courts across the state.  According to the reorganization statute, multiple cases involving the same family were all to be assigned to the first judge in the county assigned to that family.

In Bonner v Bonner, the Court of Appeals decided the issue of whether a child could be compelled to testify at hearing on his parents’ competing change of custody motions.  The case featured the open-court testimony of the parties’ minor child, limited to matters of alleged abuse by the Mother.

The case is most interesting for featuring the testimony of a well-respected psychologist that had observed the parties and child at the court hearing(s).  The psychologist then provided testimony to the family court as to his observations of both parents and the child.  Note: The family court judge did not find the child’s testimony about the conditions of his Mother’s home to be credible.

Also, the case is significant in that a child was compelled to testify in order to satisfy his parents’ right to due process.  Unlike in camera testimony of children called into a judge’s chambers to express their custodial preference under seal, this case featured the open-court testimony of a son against his own Mother.

Next, the Court of Appeals, in Roguska v Roguska, examined whether a family court could reject a settlement agreement on custody reached at court-ordered mediation by both parties and their respective attorneys.  In that case, the Mother subsequently attested that her husband lied during mediation, that she and her husband had serious communication problems, and that she subsequently obtained a PPO against the husband.

The Roguska panel held that such facts freed the family court from having to follow the settlement agreement on the custody issue.  In cases of domestic violence, arbitration and mediation are allowed, but disfavored due to the coercion that can sometimes be brought to bear against the victim of abuse.

The case of Hoeve v Hoeve continues the series of Court of Appeals decisions holding that the parents' school-district decision may be, by itself, proper cause to change custody.  In Hoeve, the pre-school child spent week-on-week-off with mom and dad.  Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten.

The parents lived about 70-miles apart.  Father's motion to acquire sole physical custody succeeded at trial and was affirmed on appeal.

According to family law appellate attorney Scott Bassett, the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

This is a summary of what came out of the Court of Appeals on matters of custody in 2009.  Many other decisions addressed the important issues of domicile and parenting time which will be addressed in future posts.

Only time will tell what 2010 will bring.

info@clarkstonlegal.com
www.clarkstonlegal.com

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12 Comments:

Blogger Andrew said...

If divorcing parents can come to an agreement outside of court on custody of their children, and they are able to arrange a suitable living and visitation schedule, then there is no set answer as to who will get custody. The parents may agree to a true joint custody arrangement in which their children split time living with each parent, and agree to work together on major decisions related to the children's upbringing and welfare. Or, the parents may agree that the children will live primarily with one parent, but there will be a generous visitation schedule for the other parent.
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January 30, 2010 at 4:32 AM 
Blogger abs said...

When searching for a doctor you do not try to find the least expensive doctor and trust them with you or your child's health care needs even though they may not have experience and may not be reliable. This is one of the most important events in your life. Rely on an experienced and dependable DNA paternity testing laboratory to give you the correct answer to this life altering question.

October 21, 2010 at 4:05 AM 
Anonymous divorce lawyer Texas said...

Having been a family law attorney for quite a number of years, I have been handling divorce and child custody cases. The question of who will have custody over the children usually becomes a nasty situation. The children get caught in the middle. Yet, the best interests of the kids have to be considered. It is important that they be raised properly in a suitable environment which is why child custody and support cases have to be reviewed carefully and judiciously.

December 3, 2010 at 3:29 AM 
Anonymous defense attorney Delaware said...

Statistics show that the number of couples getting divorced each day has been increasing - the reasons may vary but the bottom line is that many marriages are failing and how to cope or adjust to this change also be focused on. The financial investments of couples and most importantly their children are affected when couples do decide to part ways and so legal advice is sought.

September 28, 2011 at 7:54 AM 
Anonymous Anonymous said...

MCL 552.605b Child support after 18 years of age.
Sec. 5b.

Isn’t it true that all five paragraphs (1) through (5) of this law have to be true for this section to be enforced ?

(1) A court that orders child support may order support for a child after the child reaches 18 years of age as provided in this section.

Isn’t it true that this law is for special circumstances where there is some out of the ordinary situation that requires support because the child (now a majority) can’t possible survive without it…… As indicated in Child Custody Act of 1970; Act 91 of 1970; 722.27 Sec. 7.(1)(a) indicates clearly support ends when the child reaches 18 years of age.

(2) The court may order child support for the time a child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. A complaint or motion requesting support as provided in this section may be filed at any time before the child reaches 19 years and 6 months of age.

What if the child (now a majority) is not residing “with the recipient of support on a full-time basis”. Again, isn’t it true that this law is for special circumstances where there is some out of the ordinary situation that requires support because the child (now a majority) can’t possible survive without it…… As indicated in Child Custody Act of 1970; Act 91 of 1970; 722.27 Sec. 7.(1)(a) indicates clearly support ends when Child Custody Act of 1970; Act 91 of 1970; 722.27 Sec. 7.(1)(a) indicates clearly support ends when the child reaches 18 years of age.

October 28, 2011 at 10:09 PM 
Anonymous Anonymous said...

(3) A support order entered under this section shall include a provision that the support terminates on the last day of a specified month, regardless of the actual graduation date.

Isn’t it true that the court must state that there is a “last day of a specified month” in any support order?

(4) A provision contained in a judgment or an order entered before October 10, 1990 that provides for the support of a child after the child reaches 18 years of age, without an agreement of the parties as described in subsection (5), is valid and enforceable to the extent the provision provides support for the child for the time the child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. This subsection does not require payment of support for a child after the child reaches 18 years of age for any period between November 8, 1989 and October 10, 1990, or reimbursement of support paid between November 8, 1989 and October 10, 1990, in those judicial circuits that did not enforce support for a child after the child reached 18 years of age during the period between November 8, 1989 and October 10, 1990.

Isn’t it true that the paragraph points out that provisions in certain judgments or orders during a certain time periods are enforceable despite the stipulation of paragraph 5 below.

(5) A provision contained in a judgment or an order entered under this act before, on, or after September 30, 2001 that provides for the support of a child after the child reaches 18 years of age is valid and enforceable if 1 or more of the following apply:

Isn’t it true paragrpah points out that if a provision was entered is enforceable if and only if 1 or more of the following apply?

(a) The provision is contained in the judgment or order by agreement of the parties as stated in the judgment or order.

Has to be “by agreement of the parties as stated in the judgment or order” as required by this paragraph.

(b) The provision is contained in the judgment or order by agreement of the parties as evidenced by the approval of the substance of the judgment or order by the parties or their attorneys.

Has to be located in the judgment or order “by agreement of the parties” as required by this paragraph. If it’s not provided for, could not be enforced without said “agreement of the parties” as stated.

(c) The provision is contained in the judgment or order by written agreement signed by the parties.

Has to be located in the judgment or order “by written agreement signed by the parties” as required by this paragraph. If it has not been provided for could not be enforced without said written agreement signed by the parties” as stated.

(d) The provision is contained in the judgment or order by oral agreement of the parties as stated on the record by the parties or their attorneys.

Has to be located in the judgment or order “by oral agreement of the parties” as required by this paragraph. If it has not been provided for could not be enforced without said “oral agreement of the parties as stated on the record by the parties” as stated.

October 28, 2011 at 10:09 PM 
Anonymous Anonymous said...

Don't understand why as civil society that custody dont automatically start out as "joint" physical and legal unless there has been something bad like abuse, etc. It amazes me that we start with the mother having the custody and the father having the uphill battle to prove otherwise....

October 28, 2011 at 10:13 PM 
Anonymous Shane said...

Sad as it may be, even in 2011 it's still a woman's court. Not always, but usually. Fathers do get custody (I did) but it's rare. Whenever I read stuff like this I always feel terrible for the kids. They suffer more.

I have a friend of mine going through a difficult case right now. His son may have been abused (sexually) by the ex-wife and the boyfriend. DSS stepped on and awarded the father custody. However, one day later DSS said their were conflicting stories and award custody back to the mother (the abuser). Now my friend is getting a lawyer to try and gain full custody. Later he'll go after DSS. Sad story, but true.

December 30, 2011 at 3:32 PM 
Blogger Timothy P. Flynn said...

DSS sometimes does not get it right, that's true. But when you say your friend will be "going after" DSS, they enjoy certain broad immunity that would make it a wasted effort. Better to concentrate on the actual case. Perhaps the family court judge assigned to the case will see things differently, especially if your friend hires a good lawyer who can marshal and properly present the necessary proofs.

Good luck to your friend; let us know if we can be of any assistance.

www.clarkstonlegal.com

December 31, 2011 at 7:04 AM 
Blogger Lawyer NJ said...

A support order entered under this section shall include a provision that the support terminates on the last day of a specified month, regardless of the actual graduation date.
Isn’t it true that the court must state that there is a “last day of a specified month” in any support order?

February 13, 2013 at 7:10 AM 
Anonymous Anonymous said...

I am commenting about why parents are not given joint custody. Attorney Flynn I am aware of a co worker who you help represent who was able to get joint custody after having visitation. I am concerned with a judge who for what ever reason rules against me even though I was abused for years. I do not understand how a judge could use his authority to make children suffer just because he doesnt want to be told he was wrong. It is not fair for women of abuse to pay for many different lawyers if the judge is going to rule against you no matter who you have, even probably fieger or even you. I look at judges and attornies differently I do not know how they can take advantage of compassionate loving mothers and their children. I pray every night that my nightmare will have a happy ending. I will say I thank you so much for helping my co worker she loves her child and it was sad to see her sadness but I now see joy and would like to thank you for helping her. I plan to go to the appeal in a higher cour.t I know my chances may not be good but I have to fight not just for my kids and my self but for other women of domestic violence.

December 28, 2013 at 10:22 AM 
Blogger Timothy P. Flynn said...

Ms. Anonymous, I can only speculate about the facts of your case but can certainly tell from your comment that your custody arrangement is very troubling to you. You seem to be losing some faith in the family court system. I hope your appeal is successful; remember that time is of the essence in all appeals and the timelines are rigid. Do not sleep on your rights. Good luck.

December 28, 2013 at 11:57 AM 

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