Family Law Blog
Kalamazoo - Family Law Blog

Changing Custody

Posted January 7, 2017

A child custody order is not set in stone. If you want to change your custody order, you can file a motion to change custody in the court where your custody order was entered. Before the judge decides whether to change your custody order, you must prove there’s been a change in circumstances since the last order was entered, or there is proper cause to reconsider custody.

Not just any change in circumstances is enough for the court to consider changing custody. You must show the court that the change in circumstances is more than just normal life changes in the life of your child. The change must be significant. You must also provide some evidence that the change has affected your child or is very likely to affect your child. If you can’t prove there’s been a change in circumstances, you must show the court there is proper cause to consider changing custody. Proper cause must be related to at least one of the best interests of the child factors. For more information on these factors read the article, The Best Interests of the Child Factors.

If you can’t prove proper cause or a change in circumstances, the court will not consider changing custody and your current custody order will stay in place. If you can prove there is proper cause or a change in circumstances, the judge will consider changing the custody order. If there is an established custodial environment, it will be more difficult to convince the judge to change custody. You need to present stronger evidence that a custody change is in the best interests of the child.

Just like when you file a motion to change custody, the court must decide whether there has been a change in circumstances or proper cause shown before it will consider changing parenting time. Also, the court must determine whether the proposed change in parenting time will amount to a change in an established custodial environment. If it will, the person asking for the change must present stronger evidence that the parenting time change is in the best interests of the child.

 

Mediation is an Alternative to Trial

Posted December 21, 2016

Mediation is a settlement process. It can help you resolve issues in your divorce case. Mediation can be used instead of going to court and having a judge make decisions. In mediation you and your spouse meet with a neutral mediator. The mediator will help you find solutions to your divorce issues. The goal of mediation is to reach a fair agreement that both you and your spouse accept.

Mediation can be voluntary or the court can order you to attend mediation. Mediation works best when it's voluntary and both parties think it will help them resolve their disputes. But, mediation can still work well when the court orders it.

Issues that Mediation May Address:

Mediation can resolve the issues that you and your spouse don’t agree on. Before going to mediation, you should think about the problems that you want to cover. The following family law issues are often mediated:

  • Child custody and parenting time
  • Child support
  • Spousal support (alimony)
  • Property and debt division

Normally you and your spouse will meet together with the mediator several times. You will each have a chance to tell the mediator and what you want to happen in the divorce. The mediator is not a judge and won’t decide who is right or wrong in your case. The mediator won’t make decisions for you. Mediation is a cooperative process. The mediator will help you and your spouse make joint decisions. This type of mediation is called facilitative mediation.

You and your spouse can ask the mediator to make a written recommendation about any issues you can't resolve during mediation. This is called evaluative mediation. The mediator can only make a recommendation if both you and your spouse ask for one. Neither of you can be punished if you don’t accept your mediator’s recommendation. No one can tell the judge what the recommendation said if one or both of you reject it.

 

Jurisdiction of Child Custody Determination Under UCCJEA:

Posted November 16, 2016

Under MCL § 722.1201, a Michigan court has jurisdiction over initial custody determinations under the following circumstances:

  • This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
  • A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 207 or 208, and the court finds both of the following:
  • The child and the child’s parents, or the child and at least 1 parent or a person acting as a parent, have a  significant connection with this state other than mere physical presence.
  • Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section 207 or 208. No court of another state would have jurisdiction under subdivision (a), (b), or (c). Subsection (1) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.

In Michigan, the UCCJEA is inapplicable in both adoption proceedings and proceedings for authorization of emergency medical care for a child. The UCCJEA gives priority jurisdiction to a child’s “home state.” A child’s home state means:

  • the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a childcustody proceeding.
  • In the case of a child less than 6 months of age, [“home state”] means the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of a parent or person acting as a parent is included as part of the period.

However, continuing jurisdiction may exist with a child’s previous home state if a parent or person acting as a parent remains in the state that made the initial custody determination. A Michigan court will recognize and enforce child custody decisions from another state if decided in conformity with the UCCJEA. A Michigan court may consult decisions from other state courts when interpreting the UCCJEA.

MCL 722.1201.

MCL 722.1103.

 

Parental Kidnapping:

Posted October 8, 2016

MCL 750.350a(1) defines parental kidnapping as: an adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights under a lawful court order at the time of the taking or retention or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.

A person convicted under the parental kidnapping statute is subject to imprisonment for not more than one year and one day, and/or a maximum fine of $2,000.00. MCL 750.350a(2). The court may also order the convicted parent to make restitution to the other parent, legal guardian, the person or persons who have adopted the child, or any other person having lawful charge of the child for any financial expense incurred as a result of attempting to locate and having the child returned.  Retention of a child in another state that is contrary to a Michigan court’s order and in violation of the parental kidnapping statute under MCL 750.350a(1), is subject to the jurisdiction of Michigan courts.

In a recent Court of Appeals case the court found: In this case, the defendant‐father had a legal duty to return his daughter to her mother. His failure to perform this duty, which was made criminal by the enactment of MCL 750.350a, should be considered a crime committed within the State of Michigan. Acts done outside a state which are intended to produce, and in fact do produce, detrimental effects within the state may properly be subject to the criminal jurisdiction of the courts of that state. The detrimental effects of the defendant‐father’s intentional retention of the girl in violation of the Michigan court’s custody order occurred here, in Michigan, since it was the authority of a Michigan court that was thwarted and it was the custodial right of a Michigan resident that was infringed upon.

People v Harvey, 174 Mich App 58, 61‐62 (1989).

 

 

 

 

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