Parenting time changes

[TinkerBelleLuvr]

The person filing for a change of custody has to file in their motion WHAT the change of circumstances is. IF, and only if, the judge determines that there is a change of circumstances can they now bring up the best interest points to see if there should be a change of circumstances.

#fromthepersonwhohasresearchedthispoint

I can list my 16 case law sources to prove my point. I listed some of them above.

 

[CJane]

The person filing for a change of custody has to file in their motion WHAT the change of circumstances is. IF, and only if, the judge determines that there is a change of circumstances can they now bring up the best interest points to see if there should be a change of circumstances.

#fromthepersonwhohasresearchedthispoint

I can list my 16 case law sources to prove my point. I listed some of them above.

And how does the judge determine that there's a change in circumstances (or not)?

By just reading the motion and deciding whether it'll make the calendar? Or by holding a hearing?

 

[LillianX]

Really?

So, in MI, Dad files a motion to change custody stating that something significant has changed in the child's life.

Mom files a motion to dismiss, saying "Nope, no changes." And the judge decides right then and there whether or not to dismiss the case? Without hearing any evidence or facts? Without a hearing at all?

Pretty much, yes. I learned this from Tinker's case's awhile back, and I see that she's posted them, so I don't need to do so. The mom doesn't actually need to file the motion to dismiss in a lot of cases. The judge decides whether or not the things dad has listed constitute a significant change in circumstances and makes the decision before hearing anything.

 

[CJane]

Pretty much, yes. I learned this from Tinker's case's awhile back, and I see that she's posted them, so I don't need to do so. The mom doesn't actually need to file the motion to dismiss in a lot of cases. The judge decides whether or not the things dad has listed constitute a significant change in circumstances and makes the decision before hearing anything.

But I thought that judges don't hear cases in MI until after a referee makes a recommendation. After holding a hearing.

But what you're saying is that Dad files a motion, the judge reads it and determines whether it meets muster, and either throws it out or agrees that a hearing should be held, and if a hearing SHOULD be held, then the judge refers it to a referee/FOC?

 

[CJane]

It is BIG time in Michigan that there has to be a change of circumstances in the CHILD'S life for the COC.

Changing a Child Custody Order Self Help

selfhelp: Going to Court; Where to Start

http://www.traversecityfamilylaw.com/Documents/Schemanski_v_Skank.pdf

When Can I Modify a Child Custody or Visitation Order in Michigan?

have many more, but these should cover it.

Those all indicate that a change in circumstances is required to change custody or even explore best interests. Again, that's not in dispute.

What gam and I are saying is that Dad not having a change in circumstances isn't going to keep Mom from having to appear and defend the motions.

 

[gam]

I live in Oakland county, if that helps.

I am aware that I have a right to object to the referee's orders. However, at the hearing for parenting time, I used the last vacation day I had. I had to appear by phone for the follow-up hearing about child support (this was delayed because he was not working, and they said they wanted to gove hima chance to get a job.), and that was when the referee refused to impute him income. From what I recall, he did not use the formula, just lowered the support from 300 to 180. He has been required to appear a few times for contempt because he still owes me about $2000 in arrears, but at the last show cause hearing, he just said he was looking for work, and the referee said "ok." and took the next case. I wasn't even allowed to say anything. FOC tells me I should show up for these hearings, and that if I do not show up, they assume it's not important to me, but I can't risk losing my job because I am the only one supporting her!

I'm in the next county over, and 5 counties surrounding Oakland all do things the same. Not much you can do if you can't object, although I get the problem with work, my Niece had the same problem. With having FOC, Refs and Judges one motion can be heard 3 times and even 4, because sometimes you can object to a Judge. Show cause that FOC starts, do require you to show up, why I don't know, as they never let you speak. You could file a show cause yourself and skip FOC, but you still will see a Ref first, but this can save 1 hearing with FOC. But results with a Ref will be the same, and it costs to file yourself.

the original 50/50 order came about because when he filed for divorce, he also filed for full custody. I was living with my mother, and she said she would not agree to having my daughter there full time, so in my response, I asked for 50/50 custody, becasue I was aware that if I agreed to every other weekend that I would never have more custody than that.

I agreed to every other week in the summer because he was asking for most of the summer in a block, as that was "status quo". I tried to argue that now that he was living locally, that was irrelevant, but the referee and his assistant disagreed with me. I suggested every other week because I thought it was best for our daughter to spend time with both of us throughout the summer. Even though he had her every other week, I still had to pay for childcare at 155+ a week, because he said he was looking for work, and I did not think it was appropriate for someone as disabled (and possibly chemically dependent) as his father is to watch her all day when/if he found a job. He lives about 8 miles from me. She goes to school in a neighboring district to both of us (schools of choice); his lawyer has stated in court that he lives closer to her school, but he doesn't; he lives about 5 miles away, and I live 2.5. We both live close enough that the point seems pretty moot to me anyhow.

Well it might have been status quo, but normally they will not order that when one moves back from long distance and is now close by. They will stick to standard, plus whatever is standard for that county for summer time vacation. My county is 3 weeks, which I believe is the same as Oakland. I've seen it go both ways with the daycare needs. Some Judges don't care and will just have the CP in charge of that, while others will let the NCP watch the child. Your argument here is the fact if he does get a job, then daycare will have to change. If daycare stays with you then everything stays the same for the child. This seems to be the more norm, but your Judge could see it the other way. He is close enough though to the school to do 50/50 all year. You have to focus on his not doing anything else for the child, like school work, doctors and such. 50/50 requires he do his half of that, if it came to this, your going to have to stop doing it for him. If he refuses they you can have it looked into by FOC or file a motion.

I hate having hearings in front of the referee. Every time motions are filed, though, they knock it back to FOC, and I have a limited amount of time I can take off from work- and that's dependent on if they approve my time off, whether I have time available or not.

I hate it to, cause it is a waste of time. Like I said it adds, each motion can be up to 4 times in court, one with FOC, one with a Ref, two with a Judge. But without objecting, it is very tough to get anywhere, because FOC and Ref's always recommend to go with the middle ground, which always benefits the pain in the butt who is filing for crap they want for wrong reasons. You can request more phone ins for FOC and Ref's, that's how my Niece worked around this part. That way she could object and then take a day off to see the Judge. Her Judge rarely agrees with either of those, and she usually gets from the Judge what is best for the children.

Most of my vacation time goes toward staying home with her when she gets sick (she also has asthma, and she's out of school for a couple days a few times a year when she gets severe colds/flu). When she had bronchitis in May, he did take care of her for two days, and took her to the doctor, but accused me of "dropping all the responsibility on him", and refused to pick up her antibiotics. I had to send my dad to pay for them, because I was at work, and the pharmacy would not take my debit card over the phone.

I get this part, as I have 2 single daughters, a niece and a nephew who are all single CP's. Lucky for them they have 2 mom's that can work with them. The way the court sees this is, you are CP, so you take on this responsibility, they don't do much about it. Now if they do 50/50 of course the other parent is suppose to be responsible, but if they are not, they don't do much about that either, always falls on one parents shoulders if one parent won't do their share. It is a strong argument as to why they should not get 50/50, but a Ref could very likely give it to them in your situation, with him having it in the past. If he is to file, you really need to object to a Ref on this one, find a way to phone in with a Ref and save the day off for the Judge. Way to many Ref's in this area will give the other parent more time.

I do not understand why I stand to lose custody because I have been providing for our daughter. I have no choice but to work, especially since he will not (I am friendly with his sister, and she says he has turned down jobs because it would keep him from spending time with our daughter. I do not have that luxury.) It's not as if she is a toddler who needs full-time care. He picks her up from latchkey at 4:15; I pick her up at 6. I am not sure how to prove that I am capable of parenting my child, other than the fact that I *have been doing so by myself* for the last 4 years. Is a 35 year old who is unemployed and has never lived on his own really considered more stable than someone who has had the same job for 5 years, maintains a household for the child, and does hot have a history of moving in and out of state with no notice?

You can lose it because he has had 50/50 in the past, you can lose it because since he returned he already had 50/50 in the summer. Status quo. I would actually be shocked if he filed for 50/50, of a REF NOT RECOMMENDED IT OR A FOC INVESTIGATOR. However I can see a Judge not going with the recommendation based on your arguments. But unless you go before a Judge, I see a Ref going for it. Honestly your case is similar to my Niece, and she actually has 2 cases, and what the Ref's have done, blows your mind away. However it is rare the Judge does not see the part where this is not best for the child. Best is to leave the child with the responsible parent.

I am planning on consulting with an attorney; my union does have a legal services program that offers a discount, and free consultations, but I will not have a big enough chunk of money to actually pay an attorney until I get my tax refund in March, provided my car does not eat the money up with repairs.[/

There are attorney's in your area that will take a retainer and then work with you on a payment plan. My daughter's attorney is out of Oakland County and she paid her one issue off over a years time. And her case is not in Oakland. My Niece's attorney is out of Macomb and her case is in another county. So it expands the area to look for one. It can be done without an attorney, they don't always use an attorney, matter of fact they do more without one, they save them for really big issues. The key is though, you have to be able to object to the Ref's recommendation. If have limited time because of work, try for a phone in with a Ref, if you can't then consider the lawyer for the Ref. But the best way is do the Ref yourself, object and then take the lawyer to the Judge. You can't argue a case with a Ref, they have their mind made up before you enter their room. They don't listen to laws or arguments, they give you what they give you. Totally different in the Judges court room, lots more matter.

 

[gam]

But I thought that judges don't hear cases in MI until after a referee makes a recommendation. After holding a hearing.

But what you're saying is that Dad files a motion, the judge reads it and determines whether it meets muster, and either throws it out or agrees that a hearing should be held, and if a hearing SHOULD be held, then the judge refers it to a referee/FOC?

What they are saying does not happen, not in 6 courts I am very well aware of in Mi. OP happens to be in one of those.

This is how it works, you file a motion, at the time you file that motion with the county clerk's office(some counties you file the motion with FOC), they stamp the motion right there with a date for a hearing. You then mail the motion to the other party or their lawyer if they have one.

No one looks at that motion prior to the court date, you show up in front of a Ref, not a Judge. Ref hears the case, they can hear your arguments on no change and recommend that their is no change. However you can then file an objection. You are then given a court hearing in front of the Judge. Again no one looks to see if your objection has merit prior. You can argue that the objection does not have merit in front of the Judge, you can argue that no change in circumstance, but the Judge decides if he will hear it or not.

In this large area I am familiar with in Mi, which covers 6 counties, I have yet to see a Judge not hear it anyhow, even if he thinks there is no change, he still hears it.

It may not be correct legally, but your only option is then to appeal, perhaps you would win based on Mi law, however I don't know many who appeal, because it is so expensive and time consuming. And even if you appeal, they most likely will kick back to the stupid circuit court in front of the same stupid Judge.

So as you state for your area CJane, it's the same in my, they hear the case 99% of the time.

 

[anisaerah]

You can lose it because he has had 50/50 in the past, you can lose it because since he returned he already had 50/50 in the summer. Status quo. I would actually be shocked if he filed for 50/50, of a REF NOT RECOMMENDED IT OR A FOC INVESTIGATOR. .

He filed for 50/50 in April. The referee agreed with my arguments as to why this would not be best for our daughter during the school year. I seriously thought the assistant to the referee was going to burst out laughing when he tried to state why he should have more custody. She stated that he needed to find a job to support his daughter.

The irony is, when he told me he had moved back, I did not know he had already filed motions, and immediately offered him nearly exactly what the referee ended up ordering. I was served the next day

 

[gam]

He filed for 50/50 in April. The referee agreed with my arguments as to why this would not be best for our daughter during the school year. I seriously thought the assistant to the referee was going to burst out laughing when he tried to state why he should have more custody. She stated that he needed to find a job to support his daughter.

The irony is, when he told me he had moved back, I did not know he had already filed motions, and immediately offered him nearly exactly what the referee ended up ordering. I was served the next day

Same thing in my Niece's case, her ex used the same argument, can't remember what the Ref recommended, but it did go before the Judge. Don't remember if my Niece or her ex filed the objection. Judge agreed no 50/50 based on his being out of work. But fast forward a year later, he filed again. Different Ref, she agreed with him, and recommended 50/50. My Niece objected this time, and the Judge threw out the recommendation and stuck to his prior ruling. You don't always get the same Ref, just saying to prepare yourself, do not ever count anything out in a Mi court.

I know what the laws say in Mi on change of circumstance, but despite that and despite was is suppose to happen, it does not happen. Unless you can afford to appeal cases, the other side can file and it will be heard, change or no change of circumstance.

 

[anisaerah]

Same thing in my Niece's case, her ex used the same argument, can't remember what the Ref recommended, but it did go before the Judge. Don't remember if my Niece or her ex filed the objection. Judge agreed no 50/50 based on his being out of work. But fast forward a year later, he filed again. Different Ref, she agreed with him, and recommended 50/50. My Niece objected this time, and the Judge threw out the recommendation and stuck to his prior ruling. You don't always get the same Ref, just saying to prepare yourself, do not ever count anything out in a Mi court.

I know what the laws say in Mi on change of circumstance, but despite that and despite was is suppose to happen, it does not happen. Unless you can afford to appeal cases, the other side can file and it will be heard, change or no change of circumstance.

I guess what I do not understand is why the referee would grant him 50/50 or full custody when nothing has changed since April, and he denied it back then. We have always seen the same referee, even when our judge changed.

Why he ought to be rewarded for failing to provide for our daughter is beyond me.

 

[mariasusa]

No he will not have to prove a significant change of circumstances in order to have a custody decision revisited in only 6 months in Mi. Sorry but this just does not apply in Mi, and yes I know the standard and I see everyone posting this all the time to Mi people. But it's not the normal here.

Someone files and that case is heard, even if the other side files to have it thrown out because of no change of circumstance, the case still is heard. Change of circumstance is left for a Judge(or in Mi it can be a Ref to)to decide, and I have with my own ears heard several Judges say, the change is the parent asked for it, so case is fully heard. 8 years I have been sitting in these Mi court rooms and I have never seen a case thrown out for no change of circumstance.

There is no set rule on how often you can file. I know of several cases where one parent filed something every month for a year straight.

Now with that being said, I don't know first hand knowledge of all the circuit courts in Mi, but the ones I know, this does not work the way it is suppose to. Now OP should consult a lawyer in her area to see how that particular court is on this.

I'm curious, in MI, is there any standard for judges to order the party to pay both parties legal fees?

 

[gam]

I'm curious, in MI, is there any standard for judges to order the party to pay both parties legal fees?

Don't know if you mean is there something written or just what the Judges tend to follow here. If you mean written, I can't recall seeing anything, but Tinkerbelle would be able to answer that better. My memory goes on what I have actually seen written and what the courts tend to do.

In my part where I know 6 counties pretty well, unwritten standard seems to be, 2 situations where they order this.

One would be a divorce, where one party was a stay at home parent for a long time. I have not seen it ordered in an unwed situation.

The other is for a no show to court. Which puts the party in default of the court. The court will order the no show party to pay the other parties legal fees for the day of the no show. But when your put in default, you have a chance to have it set aside, which requires another hearing, both parties have to pay their own legal fees for that day, even though the hearing stems from the party not showing to begin with. Cracks me up.

I am no legal expert, don't claim to be. Been dealing with this stuff for 8 years, I have no case of my own, haha. However this started with my own daughters case, it was a mess for 4 years, in those 4 years she was in court over 50 times, could be close to 100, stopped counting after 35. The same year her case started my Niece had a divorce/custody case going, which was bad and still is. The rest have been other family members I have helped along with friends or friends of friends. But I have gone to court with my daughter every single time, and my Niece about half of hers, plus the other people. While I am waiting I sit in on other courtrooms and cases.

I have never heard a Judge order the other party to pay for excessive filing or filing with no change of circumstance. Does not mean it does not happen, just saying I have never personally heard it, can't even recall a case online(I have been replying to Mi posts for 8 years on various sites), where one got it. Again does not mean it has not happened, just don't recall one.

In my own daughters case, the first year of her child's life. Motions were filed at 1 month, 2 months, 4 months 6 months, 9 months and 15 months. The 1 month filing was valid, it was to establish parenting/custody/paternity/CS, her ex filed. The rest of the filings were also filed by her ex, 6 months and 15 months a change of circumstance was there for the mod of parenting time, however much more was filed, with no change. All were heard. Same thing has happened in my Niece's case.

With the way Mi does this, each filing can be heard by FOC, a Ref and a Judge. All go through a Ref and a Judge, FOC is the one that sometimes has no part in the motion. So you can imagine, how many times my daughter was in court that first year.

That does not count the actual custody trial, that was ordered by the Judge at the 1 month filing. Which was a mess, cause the ex was a no show, even though the custody hearing was his filing for full custody. There were 3 default hearings tied to this. So total of 4 hearings, all went to Judge only. 2 of those, he was ordered to pay for that day her lawyer fees, he paid for 1 of those day. He never paid for the other, but filed again when the child was 15 months. Her lawyer filed motion to have his filing thrown out on 2 things, no change of circumstance(which there was not)and he was still in default, he did not pay her lawyer. Judge heard it anyways, and he never has had to pay that 2nd fee to her lawyer.

One thing that is fact is that you file the motion, they stamp it right then and there with the hearing date. No one looks to see if there is a change, or they have a right to file the garbage. Even if you file to have it thrown out for no change, there is one hearing only.

Now again I can't speak for all of Mi or even all Judges, this is just the norm, of the ones I have seen. Including the way a motion is filed and how the hearing is stamped at time of filing and how no one looks at it before that hearing date. The case will be heard.

This also does not mean they won't throw it out on no change of circumstance, I have just never seen them do it, nor do I know of any case personally that they have. I have not seen it just by hanging out and listening to other cases either.

 

[mariasusa]

Thanks a lot for your time and information. I was trying to find a loophole since all motions are heard, frivolous or not, change in circumstances or not...for a way to entice a parent to stop filing.

Its similar in the county I live in in CA. I feel the family law court is way too lenient about what motions they will hear, and its about impossible to get one party to pay the others attorney fees, for whatever reason. Its a bias here. Going to court here however, is not such a horribly long and involved process as there in MI. My ex did have me in court so much (I lost count) that up until three years ago, there was not one single time in our daughters life where there was not an impending court date (review date) or pending something (custody eval, a trial, you name it). It is hard to imagine having to go through any more steps than what I did.

So just askin'...sounds like judges don't typically get into having a party pay the others legal fee's, even if there is no change of circumstance. Hope that made sense. But thanks for your time answering my question.

 

[anisaerah]

Does it make any difference that I have sole physical custody? He never filed to have that changed after he moved back. Or does the fact that he moved back and has more parenting time automatically make us have joint physical custody?

I ordered a copy of our most recent orders through the circuit court's website, and it seems that the handwritten copy of our parenting time order is what they have on file! I just assumed I had not been mailed a "real" copy. ugh.

Do the courts really prefer to give custody to parents who are unemployed and not capable of supporting their child? It did not occur to me that this was a preferential situation.

 

[TinkerBelleLuvr]

Unless the judge made the change, your sole physical custody remains.

If you get anything that he is filing for custody, don't borrow trouble. Now, that doesn't mean that you should run wild, but don't make yourself nervous about something that hasn't happened.

Now, since my X has a reputation in our court house, I DO have a judge reading ALL our filings prior to the hearing.