Showing posts with label domicile. Show all posts
Showing posts with label domicile. Show all posts

Thursday, December 13, 2012

False Claims in Custody Battle Will Bite You Back


Written by Family Law Lawyer Amanda Chapman

Let’s face it – it’s no surprise that emotions run high during a divorce where custody of the children is at issue.  With divorce comes uncertainty, and uncertainty regarding where your children will live, and with whom, is a nightmare for most parents.  

Sometimes, when in the midst of doing battle for those that we hold most dear, we think in terms of winning “at any cost.”  But be wary if you find yourself contemplating such thoughts – you may do yourself more harm than good.

To illustrate the point, a recent unpublished Michigan Court of Appeals opinion, Henry. Henry (decided December 22, 2011) involved a divorcing couple, Christine and Doug, and their six children.  The parents were both battling for custody of the children, which resulted in a trial held in Wayne Circuit Court. The trial court was required to contemplate the statutory “best interests” factors, which include making a determination as to the “moral fitness of the parties involved.”

In weighing the “moral fitness” best interest factor, a trial court must determine a party’s fitness as a parent, looking to the parent-child relationship and how that parent’s conduct affects that relationship.  In the Henry divorce, the trial court heard testimony from various individuals who suggested that Christine had filed false reports [involving issues of possible child abuse or neglect] with several professionals and agencies.  Ultimately, the trial court did not find Christine’s testimony credible, as the court weighed more heavily in favor of witness testimony which supported Doug’s claims that the reports were “inaccurate, manipulative, and designed to force additional investigations.

The court, in evaluating the “moral fitness” best interest factor, must determine the effect of a parent’s conduct on the relationship with their child. In this instance, the trial court deemed this factor to weigh in favor of Doug, determining that Christine’s false reports to various agencies “could have a negative effect on the children.”  The Court of Appeals, in reviewing the trial court’s decision, deferred to the trial court, as this was ultimately an issue of credibility.

The moral of this story: don’t make false claims against the other parent in an effort to make them look bad in your custody case. Not only does it waste precious resources for those who need protection, but it might ruin your credibility in the eyes of the Court. 



Friday, October 29, 2010

Change of Domicile Case From Clarkston Gets Supreme Court Treatment

One of the saddest things in a divorce proceeding is when a parent moves the family court for permission to change the domicile of the minor children.  When that occurs, not only is the family rocked by the initial shock of divorce, the future relationship with the parent left behind is placed in jeopardy.

A case from Clarkston, MI is instructive on the factors considered when such a motion is brought before the family court judge.

In Sunde v Sunde, mother petitioned the court to change domicile.  After considering evidence presented during a hearing on the issue, Family Court Judge Mary Ellen Brennan denied the motion.  Although mother's application for  leave to appeal was denied by the Court of Appeals, the Michigan Supreme Court issued an order remanding the case to the family court for further evidentiary proceedings.

Specifically, the Supreme Court found that Judge Brennan erred by not considering mother's proffered evidence of domestic violence; one of the five statutory factors the court must consider when deciding a domicile motion.  The high court also instructed the family court to consider "up-to-date information or evidence of other changes in circumstance arising since the trial court's most recent order."

Essentially, the Supreme Court has allowed mother a second evidentiary bite at the "domicile" apple.  The fate of the Sunde children continues to hang in the balance.

As in all family court cases that are brought to trial, the family court judge is charged with deciding what is in the children's best interest rather than weighing the competing interests of the parents.  Hopefully, after hearing all the evidence on each statutory factor, the path becomes clear to the judge.

This case pits long-time Clarkston-area attorney Lawrence Russell against Ann-Marie Okros, also from the Clarkston area.

Our firm has an excellent track-record of prevailing in domicile trials.  If you or a family member would like a free consultation on this, or any other family law issue, use the contact information below to schedule an appointment.

www.clarkstonlegal.com

info@clarkstonlegal.com

Friday, July 24, 2009

Child Custody & the 100-Mile Rule


The Michigan Legislature long-ago codified the rules of divorce in the Child Custody Act. One of the provisions in the Act addresses when one parent proposes to move:
"a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued."

A recent published (thus binding) decision of the Michigan Court of Appeals provides guidance as to how those 100-miles are calculated.

In Bowers -v- VanderMuellen-Bowers, the parents had joint legal custody of their son. Father, who had been awarded so-called "physical custody", wanted to move from Big Rapids to Byron, Michigan. The distance is very close to 100-miles.

The lower court adopted a "radial-miles" calculation, rather than using "road-miles", as the Mother asserted. The radial-mile method of calculation involves a simple calculation using a ruler and a map to connect two points, "as the crow flies"; not as a vehicle would travel on actual roads. In the Bowers case, the distance would be more than 100-miles if actual road-miles were calculated, and the move could have been disallowed by the family court judge.

In affirming the lower court's radial-miles decision, the Court of Appeals borrowed analysis from a 2007 Michigan Supreme Court case interpreting the 20-mile restriction of a public employee's residence in the Public Officers & Employees Act. Therefore, Michigan Courts do not calculate miles using actual road miles, the way they are calculated by Google Maps or Mapquest.

If you have a case that involves a proposed move which you do not think is in the best interests of your child, contact our office to discuss your options.

Friday, April 10, 2009

Court of Appeals Decides Another Relocation Case

One of the most significant (and often painful) events in divorce proceedings is when a parent seeks a change of domicile; a relocation of the children beyond the 100-miles allowed by the Legislature in the Child Custody Act. These motions often result in hearings that can be more traumatic to the parties and children than a full-blown divorce trial.

The losing parent often appeals the result thus, the Michigan Court of Appeals issues a steady diet of relocation decisions. The most recent is the case of Skeins -v- Mead and can be read in its entirety by clicking on the following link:

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20090317_C287426_49_287426.OPN.PDF

In that case, the parents shared joint physical custody of their child and exercised an alternating weekly parenting schedule. The evidence from the trial court in Crawford County was that each parent exercised their respective parenting time. The domicile issue arose, however, when the Mother re-married and her new husband located a better-paying job in Texas. The Mother claimed she too had employment prospects in Texas.

The Father in this case is employed by the Michigan National Guard. The evidence demonstrated he was a good father, engaged in the proper rearing and discipline of the child.

The Crawford Circuit Court nevertheless found that an "established custodial environment" existed with the Mother only, and granted her motion based on a finding that she satisfied the critical factors of the domicile statute by a "preponderance" of the evidence. The Father appealed the trial court's decision.

In reversing the lower court and remanding the case for an additional hearing, the Court of Appeals, recognizing the difficult economic times faced by all Michiganders, held that the lower court erred by failing to apply the "clear and convincing" evidentiary standard to not only the domicile statute factors, but to all the "best interest" factors set forth in the much broader Child Custody Act. The Court of Appeals also held that the lower court erred by concluding that an "established custodial environment" existed only with the Mother. An established custodial environment is a legal term defined by the court to mean:

if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian
and the child as to the permanency of the relationship shall also be considered.
Since the case is "unpublished", it does not have binding effect on local family courts faced with similar fact-scenarios. This case does, however, offer a solid guide for a parent opposing a relocation motion.