Father keeps custody of the child!
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GOOD MORNING FLINT!
BY Terry Bankert 2/23/08
http://attorneybankert.com/
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Full article at: http://goodmorningflint.blogspot.com/
Summarized article on Flint Talk: http://www.flinttalk.com/post-
25395.html#25395
The following is a recent Court of Appeals case that I will present
on WFLT 1420 A.M. radio Flint MI Saturday 2/24/08 9:00 am until 9:30
am. It is a call in program. Questions will be fielded by calling
810-239-5733
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In the case we will talk about today the issues are.
Divorce;
Custody;

Challenge to the trial court's finding no established custodial
environment existed; Vodvarka v. Grasmeyer; Mogle v. Scriver;

The trial court's findings regarding best interest factors (a)-(f),
(h), and (j)-(l)
The court is : Michigan Court of Appeals (Unpublished)

Case Name: Kik v. Kik e-Journal Number:
38474 UNPUBLISHED,
February 12, 2008 v No. 280359,
Kalkaska Circuit Court
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The Plaintiff is the father the Defendant is the mother

THE COURT FOUND NEITHER PARENT HAD THE CUSTODIAL ENVIRONMENT

Concluding there simply was not enough time where the minor child
was with one parent or the other to establish the qualities of
security, stability, and permanence created when a custodial
environment is established, the court rejected the defendant-
mother's claim the trial court's finding no established custodial
environment existed was against the great weight of the evidence.

THE LOCAL FAMILY COURT GAVE THE FATHER/PLAINTIFF CUSTODY.

Defendant appealed the divorce judgment, which granted the plaintiff-
father primary physical custody of the parties' minor child.

MOM SPLIT WITH THE CHILD

The evidence showed since about three weeks after defendant took the
child from the former marital home in January 2006, the child had
very little stability concerning with which parent she would be
staying.

TWO PARENTING TIME ORDERS

The parties acknowledged the parenting time under the February 2006
parenting time order and their March 2006 mutual agreement provided
the child with much uncertainty.

180 MILE TRIP 2.5 YEAR OLD CHILD, CONSTANT MOVEMENT..NO CUSTODIAL
ENVIRONMENT

The 180-mile trip to and from the parties' home also added to her
emotional unrest. Although the child spent more time with defendant
than with plaintiff, in light of her young age (she was about two
and a half years old when defendant left the marital home with her)
and the constant movement between parents, the court concluded the
trial court's finding no established custodial environment existed
was not against the great weight of the evidence.

The court also disagreed with the claim the trial court's rationale
was flawed because its opinion
did not indicate the trial court found an established custodial
environment existed with both parties.

It was evident the trial court focused on the uncertainty of the
situation as a result of the custody trial and the constant movement
between parents as precluding the establishment of an established
custodial environment with either parent. The court also rejected
defendant's challenges to the trial court's findings regarding
several of the best interest factors.
Affirmed.THE COURT OF APPEALS AGREED WITH THE LOCAL COURT THAT NO
CUSTODIAL ENVIRONMENT HAD BEEN CREATED.

Defendant appeals as of right from the divorce judgment which
granted plaintiff primary
physical custody of the parties' minor child. The Court of Appeals
agreed.

WHAT IS GREAT WEIGHT OF THE EVIDENCE

Defendant first argues that the trial court's finding that no
established custodial
environment existed was against the great weight of the evidence. We
disagree. In reviewing a
custody decision, three standards of review apply:

3 STANDARDS

The great weight of the evidence standard applies to all findings of
fact. A trial
court's findings regarding the existence of an established custodial
environment
and regarding each custody factor should be affirmed unless the
evidence ,

1.clearly preponderates in the opposite direction.

2.An abuse of discretion standard applies to the trial court's
discretionary rulings such as custody decisions.

3.Questions of law are reviewed for clear legal error. A trial court
commits clear legal error
when it incorrectly chooses, interprets, or applies the law.
[Vodvarka v
Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003) (citations
omitted).]

DECIDE CUSTODIAL ENVIRONMENT FIRST

Whether an established custodial environment exists is a question of
fact for the trial
court to make before it makes any determination regarding what is in
a child's best interests.
Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000).

WHAT IS CUSTODIAL ENVIRONMENT

A "custodial environment of a child is established if over an
appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and
parental comfort." MCL722.27(1)(c). "The age of the child, the
physical environment, and the inclination of the custodian and the
child as to permanency of the relationship shall also be
considered." Id.

SIGNIFICANT DURATION.

An established custodial environment can exist in more than one home
and "is one of significant
duration `in which the relationship between the custodian and child
is marked by qualities of
security, stability and permanence.'" Mogle, supra at 197-198
(citation omitted).

PREPONDERANCE OF THE EVIDENCE

If no established custodial environment exists, custody is
determined by a preponderance of the
evidence standard. Hayes v Hayes, 209 Mich App 385, 387; 532 NW2d
190 (1995).

CLEAR AND CONVINCING EVIDENCE

If an established custodial environment exists, it must be
established by clear and convincing evidence that a change in
custody is in the best interests of the child. MCL 722.27(1)©).
The evidence here demonstrated that since about three weeks after
defendant took the
minor child from the former marital home on January 1, 2006, the
minor child had very little
stability with regard to which parent she would be staying with.
The parties readily acknowledged that the parenting time that
occurred under the February 2006 parenting time order and the
parties' March 2006 mutual agreement provided the minor child with
much uncertainty.

Based on our review of the record, there simply was not enough time
where the
minor child would constantly be with one parent or the other to
establish the qualities of security,

stability, and permanence that are created when a custodial
environment is established. Mogle,
supra at 197-198. Moreover, the 180-mile trip to and from the
parties' home added to her
emotional unrest.

This action ultimately involved a very young girl who had little
stability with
regard to who was taking care of her. See Bowers v Bowers, 198 Mich
App 320, 326; 497
NW2d 602 (1993) (stating that a minor child's expectations as to the
permanency of a custody
situation is relevant with regard to establishing a custodial
environment).

While the minor child spent more time with defendant than she did
with plaintiff, given her young age and the constant movement
between parents, we conclude that the trial court's finding that no
established custodial environment existed is not against the great
weight of the evidence.

Additionally, we disagree that the trial court's rationale was
flawed because the opinion does not evidence that the trial court
found that an established custodial environment existed with both
parents.


To the contrary, it is evident that the trial court focused on the
uncertainty of the situation as a result of the custody trial and
the constant movement between parents as precluding an establishment
of a custodial environment with either parent, which were both
proper considerations.

BEST INTEREST FACTORS

Defendant next challenges the trial court's finding with regard to
best interest factors (a),
(b), (c), (d), (e), (f), (h), (j), (k), and (l) as against the great
weight of the evidence. We disagree.
The statutory best interest factors are as follows:
(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. [MCL 722.23.]
FACTOR A
As to best interest factor (a), the trial court's finding that the
parties were equal is not
against the great weight of the evidence because there was testimony
from witnesses for both
parties that love, affection, and other emotional ties existed
between the minor child and both
parents. While defendant relies solely on testimony to suggest that
the bond between defendant
and Emma was particularly strong, there is testimony to suggest that
the bond between plaintiff
and Emma was strong as well.
FACTOR B
As to best interest factor (b), the trial court's finding that the
factor slightly favored
plaintiff is not against the great weight of the evidence. The trial
court concluded that both
parties were equal in their capacity and disposition to provide the
minor child with love,
affection, and guidance and to continue with her education in the
future. The record supports
this finding, and it is evident that plaintiff would continue to
support the minor child in regard to
her education based on his statements at trial. As to raising Emma
in her religion, the trial court
found that this sub-factor favored plaintiff based on the testimony
that plaintiff had a stronger
religious background and was more actively involved in bringing the
minor child to church than
was defendant. Because this finding was based on the record
evidence, no error occurred with
regard to this factor.
FACTOR C
As to best interest factor (c), the trial court's finding that the
factor favored plaintiff is not
against the great weight of the evidence. The trial court focused
solely on the record evidence
that clearly demonstrated that plaintiff had a greater capacity to
provide the minor child with
food, clothing, and medical care. While defendant faults the trial
court's failure to discuss the
disposition of either party to provide food, clothing, and medical
care, there was no direct
evidence suggesting that either party had a relatively stronger or
weaker disposition than the
other to provide those necessities. Moreover, simply because the
trial court did not reference this
point does not mean that it did not consider it. The trial court
need not comment on every matter
in evidence or decide every proposition argued. MacIntyre v
MacIntyre (On Remand), 267 Mich
App 449, 452; 705 NW2d 144 (2005). Accordingly, no error occurred
regarding best interest
factor ©).
FACTOR D-
As to best interest factor (d), the trial court found that the
factor favored plaintiff, and as
to best interest factor (e), the trial court found the parties equal
under the factor. These factors
involve some degree of overlap with factor (d) requiring a factual
inquiry into the length the
child has been in a stable, satisfactory environment followed by a
determination of the
desirability of maintaining continuity, while factor (e) focuses on
the prospects for a stable
family environment. Ireland v Smith, 451 Mich 457, 465 & n 8; 547
NW2d 686 (1996).
FACTOR E
For factor (d), the trial court focused on the evidence that the
minor had lived in the former marital home almost since birth until
January 2006, when defendant left the home with the minor child who
was about two and one-half years old at the time.
Testimony provided that the minor
recognized the home as her original home and loved spending time
there with her friends, which
is a strong indicator that the home was a stable, satisfactory
environment.
Further, plaintiff
acknowledged having stable employment and had recently refinanced
the home, which is
evidence that plaintiff wished to maintain a continuous environment.
The trial court also
considered the minor child living with defendant, who had been
residing with her parents or in
her own mobile home since January 2006, but found it to be within
the minor child's best interest
to continue living in her original home. Because the evidence does
not clearly preponderate in
favor of finding that best interest factor (d) favored defendant, no
error occurred.



FACTOR E
As to best interest factor (e), the trial court focused on the fact
that both parties had
family members who lived close to them. Testimony further provided
that both parties had been
involved in a relationship since separation, with the permanence and
stability of those
relationships being unknown. Contrary to defendant's assertion, no
error occurred regarding
factor (e) because the evidence does not clearly preponderate in
favor of defendant.
FACTOR F
As to best interest factor (f), the trial court found that the
parties were equal under this
factor, substantially relying on testimony that both parties had
used profanity toward each other
and had generally acted inappropriately. While there may have been
more testimony to suggest
that plaintiff cursed more than defendant, the testimony does not
clearly preponderate in favor of
finding that best interest factor (f) weighed in favor of defendant
because both parties
acknowledged acting inappropriately at times.

FACTOR H
As to best interest factor (h), the trial court found that the
parties were equal under this
factor. Testimony provided that the minor child attended an
educational program while the
parties were married and had been attending preschool sometime since
moving in with
defendant. Testimony further provided that the minor child had done
well while attending
daycare. This particular factor has little relevancy given the age
of the minor child, and the
evidence does not clearly preponderate towards defendant as to this
factor.
FACTOR J
As to best interest factor (j), the trial court found that the
factor favored plaintiff.
Testimony provided that defendant did not allow plaintiff to see the
minor child for three weeks
after she left the marital home. Additional testimony evidenced that
defendant had not
demonstrated a willingness to facilitate a close and continuing
relationship between the minor
child and plaintiff for an additional six week period in which
defendant failed to exchange the
minor child at their agreed upon meeting place. The trial court's
finding that defendant was less
than credible in allocating blame on plaintiff will not be disturbed
given the special deference
afforded the trial court when sitting as the trier of fact. Draggoo
v Draggoo, 223 Mich App 415,
429; 566 NW2d 642 (1997). Accordingly, the record supports the trial
court's finding and
clearly does not preponderate in favor of a finding in favor of
defendant in regard to factor (j).
FACTOR K
As to best interest factor (k), the trial court found that the
parties were equal on the factor
given the lack of relevant evidence. While defendant argues that the
record shows that plaintiff
used more inappropriate language than she did, this evidence did not
rise to the level of domestic
violence as contemplated by the factor. Accordingly, no error
occurred.
FACTOR L
As to best interest factor (l), the trial court focused on plaintiff
being well-educated with
strong family values, being more financially secure and better able
to provide for Emma, and
being able to provide Emma with a stable, loving, and constant home
environment, and this
factual finding was also not against the great weight of the
evidence. The trial court weighed
several factors in favor of plaintiff and ultimately concluded that
it was in Emma's best interest
for plaintiff to be awarded primary physical custody. Based on the
factual findings that are not
against the great weight of the evidence, we conclude that this
decision was not an abuse of
discretion.

Posted here by
Terry Bankert
http://attorneybankert.com/