by ryan o'neil (oakland)Custody
Mikhaylov v. Steele III, unpublished per curiam opinion of the Court of Appeals, issued February 15, 2024 (Docket No. 367325). Oakland County Following their divorce, Mother and Father shared legal and physical custody of the minor children. Mother relocated to Austin, Texas and the parties agreed that the minor children would remain in school in Bloomfield Hills from 2021 - 2023. Mother would exercise parenting time in both Michigan and Texas. The parties’ consent judgment further provided that, after the two (2) year period, the children would relocate to Texas and attend school there. Father was also planning on moving to Texas. The parties’ judgment, in incorporating these terms, included a provision which read as follows: "If [defendant] should petition this Court for the children to remain in Michigan following the 2022-2023 school year on the basis that they are adjusted and/or are doing well academically and/or emotionally, this shall not be considered a change in circumstance or proper cause. Furthermore, if [defendant] should petition the Court to modify the parties’ agreement as previously stated, the Court should consider granting sole physical custody to [plaintiff] and otherwise enforcing this Agreement as written." The judge who entered the consent judgment left the family bench and the case was subsequently assigned to his successor. In 2023, Father sought to modify the judgment and for the children to continue to remain in Michigan and continue at their schools. Following an evidentiary hearing, the trial court granted Father’s motion. Mother was to continue exercising parenting time as she had done from 2021-2023. The trial court denied Mother’s motion for a stay pending appeal. The Court of Appeals also denied the stay, but the Michigan Supreme Court granted Mother’s request for a stay. During the pendency of the appeal before the Michigan Court of Appeals, the children were residing in and attending school in Texas.
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BY RYAN O'NEIL (OAKLAND)Custody
Barretta v. Zhitkov, _____ Mich App _____, ______ NW2d ______, 2023, (Docket No. 364921, 365078). Oakland County Mother and Father have one minor child. Pursuant to the parties’ 2016 judgment, they were awarded joint legal and joint physical custody of the minor child with a week-on/week-off parenting time schedule. The parties had a contentious post-judgment co-parenting relationship and in 2022 a guardian ad-litem (“GAL”) was appointed.
The Court of Appeals ruled that the trial court erred by not first holding an evidentiary hearing before changing custody. While the orders were titled as “temporary,” the Court of Appeals found that these orders had the practical effect of modifying Mother’s custody and parenting time. The trial court also failed to make findings as to change in circumstance/proper cause, the established custodial environment, or best interest findings. by ryan o'neil (oakland)custodyKuebler v. Kuebler, _____ Mich App _____, ______ NW2d ______, 2023 (Docket No. 362488) Washtenaw County
This most recent opinion is one of many opinions and orders that stem from a highly contentious matter. At the initial custody determination, Dr. Ludolph, the psychologist, found that Mother had borderline personality disorder and Father had anger management issues. Since the last order on appeal, Father was awarded sole legal and sole physical custody of the minor children. BY RYAN O'NEIL (Oakland)CUSTODYSmith v Rotterdam, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022 (Docket No. 357940)
Dueling post-judgment motions to modify custody. The trial court found that the minor child had an established custodial environment with both parties, applied the clear and convincing standard, and found that four (4) best interest factors favored Father while none favored Mother and granted Father’s motion to sole physical custody. Mother appealed the finding that the minor child had an established custodial environment with both parents, but the Court of Appeals rejected (and was seemingly confused) by this argument since the trial court applied the higher clear and convincing standard. Second, while the trial court did not find either a change in circumstance or proper cause, it was not necessary for them to do so since the parties were seeking to modify a temporary order. The Court opined, |
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