* FLINT MATRIMONIAL LAWYER Terry R.Bankert P.C. (810) 235-1970

FLINT MATRIMONIAL LAWYER TERRY R. BANKERT (810) 235-1970 CALL ATTORNEY FLINT DIVORCE BANKERT

2011-05-02T07:04:00.000-07:00

FAMILY LAW LECTURE SERIES OF TERRY R. BANKERT
CONTENTS

LECTURE 1 . Overview

General Considerations

The divorce process

The economics of divorce

Initial Pleadings

Service

Parties in the Armed Services

Motions for Temporary Relief

The Friend of the Court

Domestic Relations Referees

Pretrial Conferences

Alternative Dispute Resolution, Mediation, and Arbitration

Settlement Agreements

Separations agreements

Retirements Benefits

Entering Judgments

Selected Trial Issues

Modification of Judgments

Relief from Judgments

Enforcement of support and property provisions.

Proceudure

Pets

pre-Post nupptial agreements

Tax Issues

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 2. Overview

Marriage

Annulment

Separate Maintenance

Dissolution of a Marraige

modifications

Footnotes

Related Resources You Own

FAQ

LECTURE 3 Overview CHILD CUSTODY

Adoption

Authority to Decide Child Custody Disputes

Is There an Established Custodial Environment?

The “Best Interests of the Child” Standard

The Lawyer–Guardian ad Litem

Sole and Joint Custody

The Custody Order

Reaching an Agreement on Custody

Modification of the Custody Order
SEE
http://michiganchildcustody.blogspot.com/2011/05/modification-of-child-custody-order.html

*Parent voluntarily relinquishes physical custody to other parent voluntarily.
http://michiganchildcustody.blogspot.com/2011/05/parent-voluntarily-and-temporarily.html

Change of Domicile -child relocation

Third-Person Custody

The Role of the Friend of the Court

The Role of Domestic Relations Referees

Interstate Custody Disputes

International Custody Disputes

modifications

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 4 Overview PARENTING TIME

General Principles

Parental preference

Grandparent rights to Michgian parenting time

3rd party rights

Factors to Be Considered inDetermining Parenting Time

Orders for Parenting Time, visitation

Parenting Time Enforcement

Parenting Time Enforcement Underthe Uniform Child-Custody Jurisdiction and Enforcement Act

Parenting Time and Support Payments

Parenting Time Modification
05/02/11 mini brief change in parenting time.
http://bankertparentingtime.blogspot.com/2011/05/michigan-change-parenting-time-mini.html

Grandparenting Time

Parenting Time and Personal Protection Orders

modifications

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 5 Overview CHILD SUPPORT

Children’s Right to Support

Parents’ Obligation to Support

Jurisdictional Requirements

Authority for Ex Parte and Temporary Ordersfor Child Support

Determining the Amount of Support

Parental Agreements Regarding Child Support

Domestic Relations Referees, Mediation, and Arbitration

Provisions in Support Orders and Judgments

Modification

Abatement, Credit for Overpayments,Cancellation, and Termination

Enforcement of Support Orders

Interstate Enforcement Remedies:The Uniform Interstate Family Support Act

Additional Interstate Enforcement Remedies

modifications

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 6 Overview SPOUSAL SUPPORT

General Considerations

Factors Affecting Spousal Support

The Amount and Duration of Support

Requirements for Judgmentsand Spousal Support Orders

Tax Considerations

Enforcement

Enforcing Spousal Support Ordersfrom Other States

Modification of Spousal Support

The Effect of Bankruptcy

Alimony in Gross

modifications

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 7 Overview FRIEND OF THE COURT

Governing Statutes

Friend of the Court Cases

Alternative Dispute Resolution

Recommendations

Enforcement

Review and Modification of Order

Interstate Matters

Complaints Against the Friend of the Court

Related Resources You Own

FAQ

LECTURE 8 Overview PROPERTY

General Principles

Effect of Agreements Concerning Property

Distinguishing Marital and Separate Property

Specific Types of Property: Marital or Separate

Valuation

Standards for Distributing Marital Property

Separate Property

Dividing Pension and Retirement Benefits

Bankruptcy

Enforcement Measures

modifications

Footnotes

Related Resources You Own

FAQ

LECTURE 9 Overview TAX CONSIDERATIONS

Spousal Support and Section 71 Payments

Property Settlements and Taxes AffectingMarital Property

Dependency Exemptions for Children ofDivorced or Separated Parents

Tax Treatment of Divorce-Related Legal andAccounting Fees

Qualified Domestic Relations Orders and EligibleDomestic Relations Orders

Filing Status and Related Matters

Sale of the Marital Residence

Footnotes

Related Resources You Own

FAQ

LECTURE 10 Overview PATERNITY

Proceedings Under the Paternity Act

Acknowledgment Under the Adoption Code

The Acknowledgment of Parentage Act

The Child Custody Act

Divorce Proceedings

Child Protective Proceedings

Interstate Adjudication of Paternity

Footnotes

Related Resources You Own

FAQ

LECTURE 11 Overview ADOPTION

In General

Temporary Placements

Basic Adoption Procedures

Consents and Releases

Involuntary Termination ofa Biological Parent’s Rights

Adult Adoptees

Challenging an Institutional Guardian’s Withholding of Consent (a “Section 45” Hearing)

Compensation Under the Adoption Code

Identifying and Nonidentifying Information

Birth Records

Adoption Attorneys—Direct Placement Adoptions

Footnotes

Related Resources You Own

FAQ

LECTURE 12 Overview GUARDIANSHIP

Overview

Full Guardians of Minors

Temporary Guardians

Limited Guardians

Court Review of Guardianships

Termination of Guardianships

Guardians’ Standing to Seek Custody of Minors

Guardianships and Termination of Parental Rights

Conservators for Minors and Protective Proceedings

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 13 Overview INDIAN FAMILY LAW

Overview of the Indian Child Welfare Act

Does the Indian Child Welfare Act Apply to This Case?

Jurisdiction over the Indian Child

Notice of the Child Custody Proceeding

Involuntary Foster Care Placement

Juvenile Delinquency Proceedings Involving Status Offenses

Involuntary Termination of Parental Rights

Adoptive Placement Following Involuntary Termination

Voluntary Foster Care Placement

Consent to Termination of Parental Rights and Adoption

Footnotes

Forms and Exhibits

Related Resources You Own

FAQ

LECTURE 14 DOMESTIC VIOLENCE

FAQ

LECTURE 15 BANKRUPTCY

OVERVIEW

FAQ

LECTURE 16 ELDER LAW

OVERVIEW

FAQ

LECTURE 17 SOCIAL MEDIA

OVERVIEW

e-discover

FAQ

LECTURE 18 FAMILY LAW PROCEDURE

OVERVIEW

Complaint for divorce with minor children.
http://flintdivorce.blogspot.com/2011/07/michigan-complaint-for-divorce-flint.html

Mandatory settlement conference or pre trial.
http://matrimonialcourtprocedure.blogspot.com/2011/05/mandatory-settlement-or-pretrial.html

FAQ

LECTURE 19 FAMILY LAW ALTERNATIVE DISPUTE RESOLUTION

OVERVIEW

Alternative dispute resolution

Arbitration

mediation

collaborative law

FAQ

LECTURE 20

DISCOVERY

FAQ

LECTURE 21 DISCOVERY

LECTURE 22 misc issues

Business evalution

The Emancipation of a Minor

Changing an Adult’s Name

Choosing or Changing a Minor’s Name

Parental Consent and Abortions Involving Unemancipated Minors

palimony

same sex parents / marraige

military issues

probate/estate

dns

reproductive technology

surrogacy

FAQ

LECTURE 23 VENDORS

*** FORMS AND EXHIBITS
FAQ
***SOURCES THIS SERIES OF LECTURE

***GENERAL FAMILY LAW LINKS

*** LINKS TO LECTURE OUTLINE OF FLINT MARTIMONIAL LAWYER TERRY BANKERT

*** VIDEO LINKS ON MATRIMONIAL LAW

***VIDEO LINKS OF TERRY BANKERT

***LINKS TO ARTICELS OF TERRY BANKERT PUBLISHED ON OTHER SOURCES

***UPCOMING EVENT-not vetted

*** Thank You to other sites that link to this site. These are called banklinks and help us all with the search engines.

***

FAQ
***
BANKERT MINI BREIFS POST 05/02/11

GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970,DIVORCE FLINT

2011-04-14T04:35:00.000-07:00

GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970,DIVORCE FLINT

TODAY THE KEYWORDS FOR A RESPONSIBLE DIVORCE ARE GETTING EMERGENCY DIVORCE ORDER TO PROTECT CHILDREN OR YOU.

Ex parte orders; temporary restraining orders. §§1.17–1.24.

EX PARTE MEANS YOU GO TO THE JUDGE FOR AN ORDER WITHOUT LETTING YOUR DIVORCING SPOUSE KNOW.

The court must be satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.

MICHIGAN DIVORCE LAW GUIDE THE COURT

Orders are effective upon entry but may not be enforced until the other party is served with notice.

Ex parte orders for child support, custody, or parenting time must include the notice in MCR 3.207(B)(5).

EFFECTS OF A DIVORCE SOMETIME REQUIRE PROTECTION

Temporary restraining orders. §1.21.

Requirements for granting a temporary restraining order (TRO):

It clearly appears from specific facts shown in an affidavit or a verified pleading that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be entered.

The applicant’s attorney certifies in writing any efforts to give notice and why notice should not be required.

A permanent record is made of nonwritten evidence, arguments, or representations supporting the application.

DIVORCING REQUIRES ORDERS FROM THE COURT

The order must be (1) endorsed with the date and time it is issued, (2) describe the injury and why it is irreparable, and (3) state why the order was granted without notice.

Domestic relations TROs (unlike others) need not expire within a fixed period, and the court need not set a date for further hearing.

PPO

For personal protection orders, see §1.22 and Mary M. Lovik, Domestic Violence Benchbook: A Guide to Civil and Criminal Proceedings (3d ed MJI 2004).

If you have family law/divorce question call for a free consultation Attorney Terry Bankert 235-1970 or reach him through http://www.attorneybankert.com/

FAMILY IN ECONOMIC DISTRESS try his informational site http://www.nojokebeingbroke.com/
if you have bankruptcy questions.

Principal source

Michigan Family Law Benchbook ch 1 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=01
(last updated 04/01/2011

COLLECTION EFFORTS STOPPED IN BANKRUPTCY.

2011-03-28T19:29:00.000-07:00

When you file for bankruptcy whats called an automatic stay begins. The automatic stay is one of the most powerful features of bankruptcy. Why? It stops any efforts at debt collection against you exept in a couple narrow ways.

TOPIC BANKRUPTCY:EASTERN DISTRICT OF MICHIGAN BANKRUPTCY COURT. BANKRUPTCY FLINT ,ATTORNEY POSTING BY Flint Bankruptcy Lawyer Terry R. Bankert 810-235-1970.[Comments of Flint Bankruptcy lawyer Terry R. Bankert ,810-235-1970, If you have bankruptcy questions call today-810-235-1970 this article presented in a SEO format.]

If you want to stop the harrassing phone calls bankruptcy will do that.

Chapter 13 Bankruptcy

2011-03-27T16:59:00.000-07:00

FOR BANKRUPTCY PROTECTION you need a guide. Do not jump from the fire pan into the fire. Bankruptcy Flint Lawyer Terry Bankert can help you with that hard decision to seek chapter 13 protection. Bankruptcy Chapter Thirteen protection is a personal reorganization process. We will prepare and file the same basic forms as in Chapter Seven (discharge). Critically different is that we propose a three or a five year plan under which you will repay certain types of debt. In full like spousal support and child support. Often some of your credit card debt and other debts that are not secured by being attached to a house or a car are paid over this plan. Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com/

You cannot take your baby and ring, only the baby!

2010-05-16T07:15:00.000-07:00

Flint Divorce Attorney Terry Bankert received the following question from AVVO.

“My boyfriend gave me a promise ring on March 14th,2010 told me that the engagenent ring will come after. Now he wants the promise ring back, what are my rights and do i have yo give it back or was it a gift? He said I aint allowed to move any of me or my childs things out of here till i do. What do I do now?”

Your engagement ring is a conditional gift. It does not belong to you.

Found on Lexis Nexis , cite lost, Some sources say you must give it back. “The engagement period is often a time of euphoria and bliss as two individuals build a relationship and contemplate one of the most important institutions in human society - marriage. ...

Michigan Like a majority of jurisdictions, Michigan Meyer v. Mitnick, 244 Mich. App. 697 (Mich. Ct. App. 2001), hold that where an engagement gift is given to a donee in contemplation of marriage, although absolute in form, it is conditional; the donor is entitled to return of the engagement gift upon breach of the engagement. ...

Before the surge of modern "no-fault" divorce proceedings, a majority of jurisdictions held or recognized that where the donor breaks the engagement, the donee has the right to possess the engagement ring or to recover its value. ... The donor had filed a complaint in replevin alleging a conditional gift of a diamond engagement ring to the donee, where the donor had terminated the engagement one year later. ...

Now while a majority of lower courts recognize that where the donor breaks the engagement, the donee has the right to possess the engagement ring, it is important to recognize that these decisions predate the courts' extension of the policy that removes fault-finding from the personal-relationship dynamics of marriage and divorce to encompass that of broken engagements. ... “

Additional Question contact
Terry Bankert
http://attorneybankert.com/

DEMAND SPECIFIC PARENTING TIME

2010-02-20T03:56:00.000-08:00

SUMMARY

In a conference called Saving our City why is a discussion of paternity, custody, parenting time and child support important?
-In our city are many unmarried young parents where the young father is not stepping up to his responsibility as a parent.
-A young man faces the barriers of lack information of his rights or access to the child because of lack of cooperation of the mother.
-Here I can provide some information that may diminish one of these barriers.
-The assumption is that our community and the children directly involved will be better off if more young fathers become active responsible fathers.
-I have seen cases where a young father goes to court on a prosecutors petition to pay child support and he leaves with no parenting time.
-Most of the time he is unrepresented by legal counsel and has no family members present.
-Go with the young men of your family to these hearings and insist on a parenting time order.
-DEMAND A SPECIFIC PARENTING TIME ORDER.
-He may bee seeing the child every day and has a right to joint legal custody.
-Unless he asks he will get no parenting time in his court order and will pay a higher amount of child support.
-IF THE CHILD IS NOT BORN YET WHAT CAN THE FATHER DO?
-WHEN THE CHILD IS BORN HOW CAN THE FATHER SAY THE CHILD IS MINE?
WHAT IS IN AN ACKNOWLEDGEMENT OF PATERNITY
OVERVIEW OF THE PROCESS COURT ORDERED PARENTHOOD
IF THE YOUNG MAN DOES NOT PARTICIPATE IN THE COURT PROCEDING HE CAN BE DETERMINED TO BE THE FATHER BY DEFAULT
-The determination of paternity can be made by the court, by the defendant mother or father acknowledging paternity, or by entry of a default judgment against the appropriate person. MCL 722.717(1).
-GRAND PARENT RIGHTS DO NOT START THE FIRST HEARING
-An order of filiations in a paternity action does not provide a basis for affording statutory grand parenting time. See Frame v Nehls, 452 Mich 171, 550 NW2d 739 (1996).
-GRAND PARENTS HOW DO YOU GET GRAND PARENTING TIME/
-Under the grand parenting time statute, a grandparent may not file more than once every two years seeking a grand parenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).
-A request for grand parenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3).
-The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b).
I. Who Does the Prosecutor Represent?
A. Historical Context
-The Prosecutor’s involvement in litigating paternity cases has its roots in the fact that Prosecutors are trial lawyers, generally available in each county, and familiar with trying cases that had procedural similarities to criminal cases.
-BEFORE DNA THERE WERE TRIAL MOM AGAINST ALLEDGED FATHER
lls logically fell to them.
-B. Modern Application
-Under today’s version of the Paternity Act, MCL 722.711, et sec., the proceedings are predominately civil in nature. Bowerman v MacDonald, 431 Mich 1, 427 NW2nd 477 (1988).
-The only remaining vestige of a criminal procedural right is that indigent defendants are entitled to representation by court appointed counsel. Larabee v Sachs, 201 Mich App 107, 506 NW2nd 2 (1993).
-THERE ARE FEDERAL FUNDING INCENTIVES
-Title IV-D of the social security act provides federal funding and performance incentives to the states for child support establishment and enforcement services.
-The Michigan Department of Human Services (DHS), which is the state IV-D agency, contracts with county prosecutors and Friends of the Court to perform title IV-D services in accordance with federal regulations.
-WHY DOES THE PROSECUTOR FILE ACTIONS FOR PARTIES THAT COULD AFFORD THEIR OWN ATTORNEY?
-This explains why prosecuting attorneys file paternity actions for both welfare
recipients and parties who are not indigent and who probably could afford their own attorney.
-SOCIETY WANTS TO KEEP KIDS OFF OF WELFARE
-From the federal and state perspective, the goal, once again, is to prevent children from being forced onto the welfare rolls due to a lack of proper financial support from both parents.
-THE PROSECUTOR MAY NOT REPRESENT THE MOTHER IN YOUR CASE.
-In addition to representing a custodial mother or father, when a child is receiving IV-D services, or is on public assistance, the prosecuting attorney can
represent the DHS, which may file the complaint as plaintiff based upon information and belief.
-II. Scope of the Prosecutor’s Representation
A. Federally Funded (Title IV-D) Activities
-Restrictions on the use of federal funds dictate the way many of Michigan’s child support laws are shaped.
-THE STATE IS FOCUSED ON GETTING ITS MONEY BACK FROM THE FATHER
-HOW IS CHILD SUPPORT CALCULATED
-All child support calculations, including for interim orders and requests for modification, must begin with application of the MCSF. MCL 552.605(2).
--PARENTING TIME CALCULATION IS CRITICAL
-Parental time offsets are built in to the support amounts and parenting time abatements have been eliminated. See 2008 MCSF 3.03.
-PROSECUTOR IS INVOLVED IN THE CUSTODY AND PARENTING TIME STAGE.
-Consequently, most prosecutors will address the issues of custody and parenting time to resolve all the issues raised while litigating a paternity case so an order of filiations can be entered quickly and efficiently.
-THE PROSECUTOR IS CONCERNED WITH A QUICK AND EFFICIENT CHILD SUPPORT ORDER
-THE PROSECUTOR FORCES AN DECISION ON CUSTODY AND PARENTING TIME.
-The Child Custody Act provides for both sole and joint custody. MCL 722.27. Joint custody means an order of the court in which one or both of the following is specified:
-Standards for awarding sole or joint custody. In custody disputes, the parents must be advised of the availability of joint custody. MCL 722.26a(1). If the parents agree on joint custody, the court must award joint custody unless the court determines on the record, based on clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.26a(2).
-At the request of either party, the court must consider joint custody and must state on the record the reasons for granting or denying the request. MCL 722.26a(1); see Mixon v Mixon, 237 Mich App 159, 602 NW2d 406 (1999) (trial court erred in not stating on the record its reasons for denying request for joint physical custody); see also Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986); Wilcox v Wilcox (On Remand), 108 Mich App 488, 310 NW2d 434 (1981).
　
　
Parenting Time Factors
§4.7 In addition to the best interests factors, MCL 722.27a(6) sets forth nine factors that more specifically relate to the frequency, duration, and type of parenting time to be granted.
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
(i) Any other relevant factors.
Parenting time must be granted in specific terms if requested by either party at any time. MCL 722.27a(7). In Pickering v Pickering, 268 Mich App 1, 706 NW2d 835 (2005), the trial court erred by awarding “reasonable and liberal parenting time” to defendant, id. at 4, and refusing to consider awarding specific parenting time, on defendant’s oral motion, made during a hearing to resolve objections to the proposed judgment.
The Child Custody Act defines the phrase best interests of the child as follows:
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(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.
HOW DOES PARENTING TIME AFFECT A CHILD SUPPORT ORDER?
HYPOTHETICAL CASE
The minor child is 6 months old.
Mom is 20 years of age and father is 20 years of age.
Both parents live with their parents.
The Grand parents do not get along
While dating the parties lived together but returned to their parents during the pregnancy. Father helped transport mom for prenatal care took birthing and parenting classes. Father was at the hospital during birth and saw the child daily for the first 2 months in the 3rd month even taking the child over night to his parents home 3 nights a week while mother works 2nd shift. Father signed an affidavit of parentage at the hospital and his name is on the birth certificate. The Grandparents have an argument And fathers parenting time is stopped in the childs 5th month. Mom had sought public assistance and the prosecutor filed a case for child support.
Father and mother both make minimum wage here calculated at $15,000 per year gross.
A. Father cannot take time off of work and does not go to the meeting with the prosecutor. He is credited with no over nights his child support is $195.52 per month. There is no parenting time order and father and the paternal grandparents nor father extended family can visit the child.
B. Father goes to the hearing and the parties agree to reinstate his three night a week or 156 over night per year the father pays $72.24 per month.
C. Father goes to the prosecutors hearing and after a court ordered referee hearing on parenting time the father is granted standard non custodial parenting time of 87 over nights per year father pays $183.00
　
　
FULL PRESENTATION FOLLOWS

In a conference called Saving our City why is a discussion of paternity, custody, parenting time and child support important?

In our city are many unmarried young parents where the young father is not stepping up to his responsibility as a parent.

A young man faces the barriers of lack information of his rights or access to the child because of lack of cooperation of the mother.
Here I can provide some information that may diminish one of these barriers.

The assumption is that our community and the children directly involved will be better off if more young fathers become active responsible fathers.

I have seen cases where a young father goes to court on a prosecutors petition to pay child support and he leaves with no parenting time.
Most of the time he is unrepresented by legal counsel and has no family members present.
Go with the young men of your family to these hearings and insist on a parenting time order.

DEMAND A SPECIFIC PARENTING TIME ORDER.

He may bee seeing the child every day and has a right to joint legal custody.
Unless he asks he will get no parenting time in his court order and will pay a higher amount of child support.

IF THE CHILD IS NOT BORN YET WHAT CAN THE FATHER DO?
Before an out-of-wedlock child is born, the person claiming to be the father may file a verified notice of intent to claim paternity. This raises a presumption that he is the father unless the mother denies the claim. The notice is admissible in paternity proceedings and creates a rebuttable presumption of paternity.
A paternity action may be instituted while the child’s mother is pregnant or at any time before the child reaches age 18. MCL 722.714(3). However, unless the defendant parent consents, there can be no trial before the child’s birth. MCL 722.715(2).
　
WHEN THE CHILD IS BORN HOW CAN THE FATHER SAY THE CHILD IS MINE?
If the mother and father of a child born out of wedlock sign an acknowledgment of parentage form and the signatures are notarized, this establishes parenthood without Paternity Act proceedings. On execution, the parties consent to the court’s general jurisdiction regarding child support, custody, or parenting time. After execution, the mother is presumed to have custody of the minor child unless the parents agree otherwise in writing or the court orders otherwise.
The form can be signed at any time during the child’s life.
A minor parent may sign an enforceable acknowledgment of parentage, although the court may appoint a next friend or guardian ad litem for the minor parent.
A man is considered to be the natural father of a child born out of wedlock if he joins with the child’s mother and acknowledges that the child is his child by completing the acknowledgment of parentage form (an affidavit of parentage). MCL 722.1003(1). The acknowledgment of parentage form is valid and effective if both the mother and the father sign the form and the signatures are notarized. The form can be signed at any time during the child’s lifetime. MCL 722.1003(2). For administrative purposes, a completed acknowledgment of parentage is filed with the state registrar in the parentage registry. MCL 722.1005(1).

WHAT IS IN AN ACKNOWLEDGEMENT OF PATERNITY

The acknowledgment of parentage form must contain the following written notices to the parties:
(a) The acknowledgment of parentage is a legal document.
(b) Completion of the acknowledgment is voluntary.
(c) The mother has initial custody of the child, without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or agreed by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.
(d) Either parent may assert a claim in court for parenting time or custody.
(e) The parents have a right to notice and a hearing regarding the adoption of the child.
(f) Both parents have the responsibility to support the child and to comply with a court or administrative order for the child’s support.
(g) Notice that signing the acknowledgment waives the following:
(i) Blood or genetic tests to determine if the man is the biological father of the child.
(ii) Any right to an attorney, including the prosecuting attorney or an attorney appointed by the court in the case of indigency, to represent either party in a court action to determine if the man is the biological father of the child.
(iii) A trial to determine if the man is the biological father of the child.
(h) That in order to revoke an acknowledgment of parentage, an individual must file a claim as provided under [MCL 722.1011].

OVERVIEW OF THE PROCESS COURT ORDERED PARENTHOOD

Actions to determine paternity may be brought under the Paternity Act. Parents may also sign an acknowledgment of parentage under the Acknowledgment of Parentage Act, and a putative father may file a notice of intent to claim paternity under the Adoption Code, which raises a rebuttable presumption of paternity.
The establishment of paternity under another state’s law has the same effect as a Michigan acknowledgment of parentage or order of filiation.
Putative fathers may not seek custody under the Child Custody Act of 1970 without a prior acknowledgment of paternity or order of filiation.
In a divorce action, the court has no authority to determine the paternity of a third party, although it may determine the husband’s paternity rights if the court has in personam jurisdiction over the husband. A finding of fact in a divorce decree that a child was born of the marriage bars relitigation of paternity, even if the issue was not contested.
The court must enter an order of filiation if a determination of paternity is made. MCL 722.717(1). An order of filiation has the same effect, is subject to the same provisions, and is enforced in the same manner regardless of who commences the action. MCL 722.714(12).

IF THE YOUNG MAN DOES NOT PARTICIPATE IN THE COURT PROCEDING HE CAN BE DETERMINED TO BE THE FATHER BY DEFAULT

The determination of paternity can be made by the court, by the defendant mother or father acknowledging paternity, or by entry of a default judgment against the appropriate person. MCL 722.717(1).

GRAND PARENT RIGHTS DO NOT START THE FIRST HEARING

An order of filiation in a paternity action does not provide a basis for affording statutory grand parenting time. See Frame v Nehls, 452 Mich 171, 550 NW2d 739 (1996).

GRAND PARENTS HOW DO YOU GET GRAND PARENTING TIME/

Under the grand parenting time statute, a grandparent may not file more than once every two years seeking a grand parenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).

A request for grand parenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3).
The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b).
The motion or complaint must be accompanied by an affidavit setting forth facts supporting the requested order. MCL 722.27b(4)(a).

The grandparent is obligated to give each person with legal custody of the grandchild notice of the motion or action. Parties with legal custody of the grandchild may file opposing affidavits. Id.
A party may request a hearing on the motion or complaint, or the court may order a hearing sua sponte. If a hearing is requested, the court must order it. At the hearing, any party submitting an affidavit or a counter affidavit must be “allowed an opportunity to be heard.” Id.
The statute directs that a “fit” parent’s decision to deny grand parenting time is presumed not to create a “substantial risk of harm to the child’s mental, physical, or emotional health.”
To rebut this presumption, the grandparent seeking visitation must prove by a preponderance of the evidence that the parent’s decision to deny grand parenting time does create such a risk. If the grandparent cannot overcome the presumption, the request for visitation must be denied. MCL 722.27b(4)(b).

If the grandparent successfully rebuts the presumption that the parent’s denial of visitation does not create such a substantial risk, the court moves to the second step of the two-step process. Specifically, if the court finds that the grandparent has rebutted the presumption, it must then consider whether it is in the best interests of the child to enter an order for grand parenting time. If the court finds by a preponderance of the evidence that this is the case, the court must enter an order for “reasonable grand parenting time.” MCL 722.27b(6).

Alternatively, if the grandparent overcomes the presumption, the court may refer the request for grand parenting time to domestic relations mediation, governed by MCR 3.216. If the matter is referred to Friend of the Court alternative dispute resolution, but the Friend of the Court is not able to reach a voluntary resolution within a “reasonable time,” the court itself must hold a best interests hearing. MCL 722.27b(7). The new law does not suggest any time line that would satisfy the reasonable time standard.

The court must make a record of its analysis and findings, including the reasons for granting or denying the visitation request. MCL 722.27b(12).
　
I. Who Does the Prosecutor Represent?
A. Historical Context
The Prosecutor’s involvement in litigating paternity cases has its roots in the fact that Prosecutors are trial lawyers, generally available in each county, and familiar with trying cases that had procedural similarities to criminal cases.

BEFORE DNA THERE WERE TRIAL MOM AGAINST ALLEDGED FATHER

Under the Bastardy Act, the predecessor to the Paternity Act, these cases were considered to be of a .quasi-criminal. nature. A warrant could be issued for the putative father.s arrest in lieu of a summons being issued. Blood tests (A, B, O, typing) were only admitted into evidence if they excluded the man.
And the putative father could not be compelled to testify. Many bastardy proceedings therefore resulted in a jury trial, with the credibility of the mother being the focus of the case.
Since Prosecutors are well suited to this type of litigation, the task of keeping
illegitimate children. off the welfare rolls logically fell to them.
B. Modern Application
Under today.s version of the Paternity Act, MCL 722.711, et sec., the proceedings are predominately civil in nature. Bowerman v MacDonald, 431 Mich 1, 427 NW2nd 477 (1988).
An indigent defendant father has a right to appointed counsel. The court must personally advise the alleged father who appears in court of this right. If he decides to proceed without an attorney, the record must affirmatively show that he was advised of his right to an attorney at public expense and waived that right.
This right does not apply in a dispute over custody, parenting time, or nonpayment of child support arising after paternity is established, unless incarceration is a possible sanction.
　
The only remaining vestige of a criminal procedural right is that indigent defendants are entitled to representation by court appointed counsel. Larabee v Sachs, 201 Mich App 107, 506 NW2nd 2 (1993).
Even the right to a jury trial has been removed from the statute. However, the prosecuting attorney remains the attorney of choice under the statute
to represent the party who has physical possession of the child and is unable to afford an attorney, or if the child is receiving services under part D of title IV of the federal social security
act. MCL 722.714(4).

THERE ARE FEDERAL FUNDING INCENTIVES

Title IV-D of the social security act provides federal funding and performance incentives to the states for child support establishment and enforcement services.
The Michigan Department of Human Services (DHS), which is the state IV-D agency, contracts with county prosecutors and Friends of the Court to perform title IV-D services in accordance with federal regulations.
One such federal requirement is that child support services be made available to individuals who are not otherwise qualified, meaning they do not receive any public assistance, if they request services. Individuals can request IV-D services simply by signing an application, a DHS 1201 form. In some counties, the form of the verified statement provided by the Friend of the Court also serves as a request for IV-D
services.

WHY DOES THE PROSECUTOR FILE ACTIONS FOR PARTIES THAT COULD AFFORD THEIR OWN ATTORNEY?

This explains why prosecuting attorneys file paternity actions for both welfare
recipients and parties who are not indigent and who probably could afford their own attorney.

SOCIETY WANTS TO KEEP KIDS OFF OF WELFARE

From the federal and state perspective, the goal, once again, is to prevent children from being forced onto the welfare rolls due to a lack of proper financial support from both parents.
Federal incentive funds are provided to encourage states to have high rates of
paternity establishment.
The court must enter an order of filiation if determination of paternity is made by the court, by the defendant acknowledging paternity, or by entry of a default judgment.
The order of filiation must
set child support pursuant to the child support formula
include the health care related provisions of the child support formula
unless Medicaid paid the confinement and pregnancy expenses or the pregnancy or complication of the pregnancy was the result of a battery, apportion the reasonable and necessary expenses of the mother’s confinement and pregnancy between the parents in the same manner as the child support formula apportions medical expenses; the father is no longer solely responsible for confinement costs and necessary expenses, except in the Medicaid or battery scenarios
if applicable, direct payments of a deceased child’s funeral expenses
establish custody and/or parenting time—must include specific provisions if there is no dispute over custody or parenting time; if disputed, the court should enter an order for support and a temporary order for custody and parenting time, THIS IS NOT ALWAYS DONE.
provide that, if the father marries the mother after the birth of the child and provides documentation of that marriage to the Friend of the Court, the father’s obligation for unpaid confinement and pregnancy expenses will be abated (this is a new requirement for orders of filiation)

As a support order, the order of filiation must also contain provisions required by court rules and the Support and Parenting Time Enforcement Act
　
THE PROSECUTOR MAY NOT REPRESENT THE MOTHER IN YOUR CASE.

In addition to representing a custodial mother or father, when a child is receiving IV-D services, or is on public assistance, the prosecuting attorney can
represent the DHS, which may file the complaint as plaintiff based upon information and belief.
If so, the custodial mother is made a party plaintiff and receives service of process just as if she were the defendant. This situation usually is necessitated when the custodial mother, although receiving public assistance for the child, is not cooperative in pursuing the paternity action.
In such cases, the prosecuting attorney is authorized to represent
the DHS. MCL 722.714 (10).
amount—determined by the Michigan Child Support Formula (MCSF), unless applying the formula would be unjust or inappropriate (same rules as for other support orders)
health care expenses, etc.—a support order must include provisions related to health care; specifically, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children (it is presumed that $289 per child per year will be spent on ordinary expenses); this annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment
postmajority support—the court may order support for a child between the ages of 18 and 191/2 who regularly attends high school full-time with reasonable expectation of graduation and lives full-time with support payee or at an institution
support for period before filing—a child support obligation is only retroactive to the date the paternity complaint was filed; the court may only set an earlier date if it finds that the defendant avoided service of the suit, used threats or physical coercion to prevent the complainant from filing the action, or otherwise delayed the imposition of the support obligation; the former provisions for support dating back to a child’s birth in certain circumstances have been removed
retroactive modification—not permitted
After an order of filiation is entered, the court has continuing jurisdiction to provide for, change, and enforce the order’s provisions regarding custody, support, or parenting time.
　
II. Scope of the Prosecutor’s Representation

A. Federally Funded (Title IV-D) Activities
Restrictions on the use of federal funds dictate the way many of Michigan’s child support laws are shaped.

THE STATE IS FOCUSED ON GETTING ITS MONEY BACK FROM THE FATHER

In the context of a paternity case, federal funding is primarily limited
to providing legal services to establish paternity, obtain court-ordered child support, and pay for genetic testing.
Funding for ancillary activities is allowed only in as much as they
are necessary to establish paternity and obtain a child support order.

HOW IS CHILD SUPPORT CALCULATED

All child support calculations, including for interim orders and requests for modification, must begin with application of the MCSF. MCL 552.605(2).
The MCSF considers a parent’s support obligations that consist of base support adjusted for parenting time, medical support obligations that include ordinary and extraordinary medical expenses, health care coverage and division of premiums, and child care expense obligations.
The amount of child support recommended by the child support formula is presumed to be appropriate. Calley v Calley, 197 Mich App 380, 496 NW2d 305 (1992). The current formula, Michigan Child Support Formula of 2008 or “2008 MCSF,” is available on the SCAO Web site. Please note that the 2008 Michigan Child Support Formula Manual Supplement, with the most current economic data and tables needed to calculate support, is also available on the SCAO Web site at http://courts.michigan.gov/scao/services/focb/mcsf.htm.
According to the Friend of the Court Act, the formula is to be based on the needs of the child and the actual resources of each parent. MCL 552.519(3)(a)(vi).
Numerous factors are considered, such as parental income, family size, child care, dependent health care coverage costs, and other criteria.
The formula is intended to apply in divorce cases, paternity cases, family support cases, and other cases involving the support of children. In addition, special provisions are made for low-income families, split custody, shared custody, and third-party custody situations.
Before use of the formula, the gross income of each party must be calculated.
The formula addresses the many complexities that may be involved in this calculation, such as perks and in-kind income, capital gains, tips and gratuities, gifts that replace income, imputed income, and obligations to children from other relationships. See 2008 MCSF 2.01–.09.

PARENTING TIME CALCULATION IS CRITICAL

Parental time offsets are built in to the support amounts and parenting time abatements have been eliminated. See 2008 MCSF 3.03.
An offset for parental time generally applies to every support determination, whether in an initial determination or subsequent modification and whether or not previously given. 2008 MCSF 3.03(B).
　
PROSECUTOR IS INVOLVED IN THE CUSTODY AND PARENTING TIME STAGE.

Consequently, most prosecutors will address the issues of custody and parenting time to resolve all the issues raised while litigating a paternity case so an order of filiation can be entered quickly and efficiently.
　
THE PROSECUTOR IS CONCERNED WITH A QUICK AND EFFICIENT CHILD SUPPORT ORDER

This Prosecutor involvement in Genesee County occurs in the small office of an assistant prosecutor where the parties and the prosecutor are engaged in a discussion of the law and individual right. This approaches duel representation and is an intimidating and coercive environment for the young man.

THE PROSECUTOR FORCES AN DECISION ON CUSTODY AND PARENTING TIME.

If an agreement can be easily negotiated between the parties regarding custody
and parenting time, the prosecuting attorney will generally draft that agreement into the order of filiation and facilitate its entry.
The Child Custody Act provides for both sole and joint custody. MCL 722.27. Joint custody means an order of the court in which one or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
MCL 722.26a(7).

The court may award joint legal custody as to decision making but find an award of joint physical custody to be inappropriate. Wellman v Wellman, 203 Mich App 277, 512 NW2d 68 (1994) (joint physical custody denied based on parties’ inability to cooperate and communicate).
Standards for awarding sole or joint custody. In custody disputes, the parents must be advised of the availability of joint custody. MCL 722.26a(1). If the parents agree on joint custody, the court must award joint custody unless the court determines on the record, based on clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.26a(2).
At the request of either party, the court must consider joint custody and must state on the record the reasons for granting or denying the request. MCL 722.26a(1); see Mixon v Mixon, 237 Mich App 159, 602 NW2d 406 (1999) (trial court erred in not stating on the record its reasons for denying request for joint physical custody); see also Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986); Wilcox v Wilcox (On Remand), 108 Mich App 488, 310 NW2d 434 (1981).

However, the fact that the trial court must consider an award of joint custody does not create a presumption in favor of it. Wellman.
The court determines whether joint custody is in the best interests of the child by considering the statutory best interests factors (see §3.8) and whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. MCL 722.26a(1).

If the parents cannot agree on essential decisions, sole custody should be awarded. Fisher v Fisher, 118 Mich App 227, 324 NW2d 582 (1982).
The question is whether the parents can cooperate on child-rearing issues, not whether the parents necessarily get along. Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987); Shulick v Richards, 273 Mich App 320, 729 NW2d 533 (2006) (although parties harbored some personal animosity and had some difficulty communicating, not an abuse of discretion to award joint legal and physical custody because parties were able to cooperate and reach compromises for best interests of children). Depending on the facts of the individual case, it is not inconsistent to grant joint legal custody while denying joint physical custody. See Wellman.
　
Parenting Time Factors

§4.7 In addition to the best interests factors, MCL 722.27a(6) sets forth nine factors that more specifically relate to the frequency, duration, and type of parenting time to be granted.
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
(i) Any other relevant factors.
D. Examples of Parenting Time Provisions
§4.8 The parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time and are appropriate to the particular case. For example, the order may require the following:
The responsibility and cost of transporting the child are to be divided between the parents.
The presence of third persons during parenting time is restricted, or a third person or agency must be present during parenting time.
The child must be ready for parenting time at a specific time.
The parent must arrive for parenting time and return the child from parenting time at specific times.
A bond to ensure compliance with a parenting time order must be posted.
There must be reasonable notice when parenting time will not occur.
MCL 722.27a(8).

Parenting time must be granted in specific terms if requested by either party at any time. MCL 722.27a(7). In Pickering v Pickering, 268 Mich App 1, 706 NW2d 835 (2005), the trial court erred by awarding “reasonable and liberal parenting time” to defendant, id. at 4, and refusing to consider awarding specific parenting time, on defendant’s oral motion, made during a hearing to resolve objections to the proposed judgment.

The Child Custody Act defines the phrase best interests of the child as follows:
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(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.

HOW DOES PARENTING TIME AFFECT A CHILD SUPPORT ORDER?
HYPOTHETICAL CASE

The minor child is 6 months old.
Mom is 20 years of age and father is 20 years of age.
Both parents live with their parents.
The Grand parents do not get along
While dating the parties lived together but returned to their parents during the pregnancy. Father helped transport mom for prenatal care took birthing and parenting classes. Father was at the hospital during birth and saw the child daily for the first 2 months in the 3rd month even taking the child over night to his parents home 3 nights a week while mother works 2nd shift. Father signed an affidavit of parentage at the hospital and his name is on the birth certificate. The Grandparents have an argument And fathers parenting time is stopped in the childs 5th month. Mom had sought public assistance and the prosecutor filed a case for child support.
Father and mother both make minimum wage here calculated at $15,000 per year gross.
A. Father cannot take time off of work and does not go to the meeting with the prosecutor. He is credited with no over nights his child support is $195.52 per month. There is no parenting time order and father and the paternal grandparents nor father extended family can visit the child.
B. Father goes to the hearing and the parties agree to reinstate his three night a week or 156 over night per year the father pays $72.24 per month.
C. Father goes to the prosecutors hearing and after a court ordered referee hearing on parenting time the father is granted standard non custodial parenting time of 87 over nights per year father pays $183.00
　
B. Statutory Provisions
The Paternity Act provides that if there is no dispute regarding custody when the
determination of paternity is made, the court must include specific provisions for custody and parenting time in the order of filiation.

THE YOUNG MAN MUST KNOW HOW TO INFORM THE COURT THAT A DISPUTE EXISTS

If there is a dispute, the court must enter an order for support and temporary custody, pending
resolution of the dispute.

THE PROSECUTORS DOES NOT REPRESENT EITHER PARTY IN CUSTODY OR PARENTING TIME

The prosecuting attorney, however, is not required to represent either party regarding a dispute over custody or parenting time. (Neither is an attorney who has been appointed to represent an indigent defendant.) MCL 722.717b.

THE ISSUE COULD BE REFERRED TO THE FRIEND OF THE COURT. OFTEN THE YOUNG MAN IS TOLD TO FILE A MLOTION FOR PARENTING TIME.

Consequently, should there be a serious dispute regarding custody or parenting time, you will often find the matter referred to the Friend of the Court for a hearing or recommendation, but the prosecuting attorney will not generally
participate in those proceedings. Likewise, in post-judgment proceedings, prosecuting attorneys will only be involved as necessary to protect the viability of the paternity establishment and the support order.
This assures compliance with the prosecutor’s contractual obligation regarding the permitted use of federal funding.
III. Using the State-Contracted Genetic Testing Laboratory
A. In General
Genetic testing, and more specifically, DNA testing has become the single most valuable and objective tool for resolving contested paternity cases. A properly conducted genetic test of the mother, child, and putative father by an accredited laboratory should be conducted in every paternity case. Not all genetic tests are equal, however. Of primary importance to the putative father is what is the likelihood that a falsely accused man will be excluded by the test that is being offered to me? Today.s DNA testing has the power to exclude 99.99+% of all falsely accused men. If the DNA test you are being offered doesn’t
approach that level, then you need to ask for a better test.
V. Reimbursement for Medicaid Paid Confinement Costs
A. Why Is There a Problem?
Many unmarried expectant mothers have no health care insurance to cover the doctor visits required for pre-natal and post-natal care and they could not afford the hospital and doctor’s bills for the baby’s birth.
To obtain health care, low and middle income women sign up for Medicaid to cover their health care expenses arising from the pregnancy.

MOTHERS ON MEDICAID MUST SEEK PATERNITY

Once on Medicaid, women are required to cooperate in establishing paternity and obtaining a court order for child support.
They are referred to the prosecutor’s office to begin a paternity case.
The Paternity Act provides that the Order of Filiation, in addition to
child support, shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement and pregnancy. Consequently, if there were any confinement expenses that were not covered by private insurance, they must be accounted for in the Order of Filiation. MCL 722.717 (2).

BIRTHING EXPENSES COULD BE UP TO $4,000

Confinement costs paid by Medicaid generally run from $ 4,000 up. Typically, installment payments are ordered in an amount consistent with the Michigan Child Support Formula.
B. Who Is Liable?
Prior to October 1, 2004, the answer was always that the father was liable for the confinement and pregnancy expenses.
A 2004 amendment to the statute however has created the option for the court to apportion the confinement and pregnancy expenses between
both parents based on each parent’s ability to pay and on any other relevant factor.

CONFINEMENT EXPENSES CAN BE ASSIGNED PRO RATA TO INCOME

It is to be done in the same manner as medical expenses are apportioned under the child support formula. MCL 722.712(1).
If the pregnancy or a complication of the pregnancy resulted from a physical or sexual battery by a party to the case, the court must apportion those
expenses to the perpetrator. MCL 722.712 (2).
Note however, that if Medicaid paid the confinement and pregnancy expenses, the court shall not apportion confinement and
pregnancy expenses to the mother.
In other words, if Medicaid paid the birth expenses,
any percentage up to 100% of the confinement costs can be apportioned to the father, but none may be apportioned to the mother. MCL 722.712 (3).
C. Is There Any Relief from Paying Confinement Expenses?

ONE WAY TO NOT PAY IS TO MARRY THE MOTHER

The statute now provides one relief valve for the father.s obligation to pay the pregnancy and confinement expenses. Even if those were paid by Medicaid. If the father marries the mother after the birth of the child and provides documentation of the marriage to the friend of the court, the father.s obligation for payment of any remaining unpaid confinement and pregnancy expenses is abated.
This abatement is subject to being reinstated after notice and hearing for good cause, including dissolution of the marriage. MCL 722.712 (4).
　
VI. WHAT IF THE MOTHER IS MARRIED TO ANOTHER

A child conceived or born during a marriage leads to a presumption that the child is a product of
the marriage. MCL 700.111. Long established Michigan public policy and law protects intact families from having an outsider claim that a child conceived or born during the parties. marriage was actually fathered by another man.
A man lacks standing to file a paternity case, unless the child was born out of wedlock. Girard v Wagenmaker, 431 Mich 231, 470 NW2nd 372 (1991).
Born out of wedlock means the child was conceived and born while the mother was not married, or is a child that a court has determined to be
a child born or conceived during marriage, but is not the issue of that marriage. MCL 722.711(a).

CANCELLATION OF ARREARAGES

§5.36 Since support payments are not subject to retroactive modification, cancellation of arrearages is generally not available. See Waple v Waple, 179 Mich App 673, 446 NW2d 536 (1989) (child support could not be reduced to reflect date when child moved in with payer).
The no retroactivity provision does not apply to an ex parte interim support order or a temporary support order. MCL 552.603(3); Thompson v Merritt, 192 Mich App 412, 420–422, 481 NW2d 735 (1991). Another exception to the no retroactive modification rule is that a court may still approve an agreement between the parties to retroactively modify a support order. MCL 552.603(5). In addition, after notice and an opportunity for a hearing, the court may retroactively correct the amount of support if an individual who is required by the court to report his or her income to the court or the Friend of the Court knowingly and intentionally failed to report, refused to report, or knowingly misrepresented his or her income. MCL 552.603b.

The no retroactivity rule clearly supersedes the prior case law. Before the statutory change, case law held that support and arrearages could be reduced at the discretion of the court if there was reason to believe the payer was unable to provide support during the time it was ordered. Pronesti v Pronesti, 368 Mich 453, 118 NW2d 254 (1962) (arrearage canceled when custodian removed children from state, concealed their whereabouts from payer, and did not pursue enforcement of payments in good faith and when children were not deprived by cancellation); Ydrogo v Ydrogo, 332 Mich 530, 52 NW2d 345 (1952); Ozdaglar v Ozdaglar, 126 Mich App 468, 337 NW2d 361 (1983).

Parents with child support arrearages may now request that a court create a repayment plan that would discharge any past-due amounts and the surcharges on those amounts. A payer who has an arrearage under a support order may file a motion for a payment plan to pay the arrearage and discharge or abate arrearages. See SCAO form FOC 109, Motion for Payment Plan. The court must approve of the plan if it finds by a preponderance of the evidence that the plan is in the best interests of the parties and children and that either of the following applies:
(a) The arrearage is owed to an individual payee and both of the following:
(i) The payee has consented to entry of the order under circumstances that satisfy the court that the payee is not acting under fear, coercion, or duress.
(ii) The payer establishes that the arrearage did not arise from conduct by the payer engaged in exclusively for the purpose of avoiding a support obligation.
(b) The arrearage is owed to this state or a political subdivision of this state, and the payer establishes the following:
(i) The arrearage did not arise from conduct by the payer engaged in exclusively for the purpose of avoiding a support obligation.
(ii) The payer has no present ability, and will not have an ability in the foreseeable future, to pay the arrearage absent a payment plan.
(iii) The payment plan will pay a reasonable portion of the arrearage over a reasonable period of time in accordance with the payer’s current ability to pay.
MCL 552.605e(1).

The court may require certain conditions in the payment plan (in addition to the payment of support) that it determines are in the best interests of a child, such as the payer’s participation in a parenting program, drug or alcohol counseling, anger management classes, a batterer intervention program, or a work program. MCL 552.605e(5). The court must discharge any remaining arrearage if the payer completes the payment plan, and the court may grant relief if the payer substantially completes the payment plan. MCL 552.605e(2). However, the plan would have to include a requirement that any arrearage subject to the plan could be reinstated upon motion and hearing for good cause shown at anytime. MCL 552.605e(4).
A party or the Friend of the Court may also file a motion for a repayment plan for discharge of amounts assessed as surcharge and for the waiver of future surcharge. See MCL 552.603d(1).
One frequent cause of arrearages is the incarceration of the payee. See McLaughlin v McLaughlin, 255 Mich App 475, 660 NW2d 784 (2003), where an incarcerated parent incurred over $78,000 in arrearages. To remedy this issue, effective June 30, 2005, MCL 552.517 was amended to include a parent’s sentence of incarceration to a term of more than 1 year as an event triggering the child support review and modification process by the Friend of the Court.
Arrearages, as a nondischargeable debt for the maintenance or support of the child, may not be canceled through bankruptcy. 11 USC 523(a)(5); see also Kowatch v Kowatch, 179 Mich App 163, 445 NW2d 808 (1989) (involving spousal support obligation).
Social Security benefits received on behalf of a minor child because of a payer’s disability may be credited toward the payer’s child support arrearage that has accrued since the date of disability, but may not be applied to any prior arrearages. Frens v Frens, 191 Mich App 654, 478 NW2d 750 (1991); Fisher v Fisher, 276 Mich App 424, 741 NW2d 68 (2007). But see Jenerou v Jenerou, 200 Mich App 265, 503 NW2d 744 (1993) (disabled noncustodial parent not entitled to credit because benefits were not paid to mother, but directly to child, who had reached age of majority).

Flint Divorce lawyer says Tiger will get Mauled in Divorce.

2010-02-17T17:40:00.000-08:00

Flint Divorce lawyer Terry Bankert looks at a development suited to the bizarre nature of Tiger Woods.

His handlers on Wednesday released a statement to selected media outlets announcing plans for Woods to “discuss his past and his future” at a meeting on Friday at the PGA Tour headquarters in Ponte Vedra Beach, Fla.It also said Woods “intends to apologize for his behavior.”

What could he lose in a future divorce if it were held in Flint Michigan.
http://www.nytimes.com/2010/02/18/sports/golf/18tiger.html

Tiger has a pre nuptial agreement. If this is broken or there are assets out side the agreement a snap shot of the elements of Flint Michigan Divorce Division of property follows.

This snap shot includesthe duration of the marriage,contributions of the parties to the marital estate,the age of the parties,the health of the parties,life status of the parties,necessities and circumstances of the parties,earning abilities of the parties,past relations and conduct of the parties, andgeneral principles of equity.

Not all of the factors will apply to any given case, nor does the court have to give equal weight to each factor.

Good Luck Tiger, you will need it.
Flint Divorce Lawyer
Terry Bankert
810-235-1970

Give me a break lady, what were you thinking!

2010-02-17T03:57:00.000-08:00

Did You Know!
By Terry Bankert a Flint Divorce Lawyer / Attorney.

A Bay City Judge recently put a woman in jail for bigamy. She was also given a deadline to get her affairs in order. See:
http://www.mlive.com/news/bay-city/index.ssf/2010/02/divorce_one_or_the_other_judge.html

So what is the Law in Michigan?

Did you know Michigan a strong presumption exists favoring a marriage’s validity.

Once the celebration of a marriage is shown, the contract of marriage, the capacity of the parties, and everything necessary to the validity of the marriage are presumed. So who do you divorce?

The court will recognized validity of second marriage. What property rights does the first husband have?

No fault will be found with the person conducting the ceremony.

Our Courts presumption of validity of the second marriage is strong and its strength increases with the lapse of time, the birth of children, and the parties’ acknowledgment of their marriage.

We want continuity so once a marriage has been shown, the presumption is that the marriage continues.

Did you know a seven-year absence of one of the parties, however, gives rise to a presumption of death.

In the Bay City case where the wife has been married to two different people, the presumption favors the validity of the second marriage. This presumption favoring the validity of a second marriage prevails over the presumption of a prior marriage’s continuity. The husband in the first marriage may challenge the presumption favoring the validity of a second ceremonial marriage. He may may be rebut the presumption by a showing of facts conclusively establishing the invalidity of the second marriage.

Can you get a lump sum in a divorce judgement made a periodic payment? NO!

2010-02-15T11:57:00.001-08:00

Terry R. Bankert a Flint Divorce Lawyer discusses several issues surrounding a Divorce appeal recently decided by the Michigan Court of Appeals.

The case we will look at is not a Geneses County, Flint Michigan, divorce case. It is from St. Clair County.In this case the trial court erred in ordering the $310,000 lump sum payment provided for in the parties' settlement agreement incorporated into the consent divorce judgment could be paid in installments, contrary to the terms of the consent judgment.

1ST ISSUE concerning Divorce or Family Law issue discussed is whether the trial court properly,, ordered the lump sum payment provided for in the parties' settlement agreement could be paid in installments (contrary to the terms of the consent judgment);

The trial court is the local family law court where the divorce attorneys or lawyers argued the case then one or both appealed. See In re Lobaina Estate; Construing unambiguous contract provisions; Rory v. Continental Ins. Co.;In this case the Court of Appeals found the lower court was in error. They said "We do not believe that any of these provisions authorized the court to convert the lump sum payment negotiated between the parties, and memorialized in this consent judgment of divorce, to installment payments. MCL 600.6107 refers to judgment creditors and debtors. The marital relationship is not that of a debtor and creditor. Lindner v Lindner, 137 Mich App 569,572; 358 NW2d 376 (1984).

2ND ISSUE discussed is whether MCL 600.6107 and MCL 600.6201 gave the trial court authority to allow the defendant-husband to pay the judgment in installments; The Court of Appeals found that it did not.The Court of Appeals pointed out "We first note that while the trial court referred to its powers to enforce an agreement, the agreement was for a lump sum payment, and the trial court did not enforce this provision.Instead, the trial court altered it. Modifications of property settlements in divorce judgments are strongly disfavored. Baker v Baker, 268 Mich App 578, 586; 710 NW2d 555 (2005)"

3RD ISSUE discussed is the applicability of MCL 600.6107 (referring to judgment creditors and debtors); Lindner v. Lindner; Modifications of property settlements in divorce judgments; Baker v. Baker; Lentz v. Lentz; Bers v. Bers; Alexander v. Alexander; Molnar v. Molnar;To clarify this State Statute MCL 600.6107 refers to judgment creditors and debtors. The Michigan Court of Appeals found that marital relationship is not that of a debtor and creditor. Lindner v Lindner, 137 Mich App 569, 572; 358 NW2d 376 (1984).

Here we will discuss Whether the trial court denied the plaintiff-wife her right to foreclose on her liens against defendant's properties and to obtain a judicial sale in order to enforce the lump sum payment; Draggoo v. Draggoo; Wiand v. Wiand;Divorce proceedings are conducted in the same manner as other suits in courts of equity;and these courts have the power to award issues, to decree costs, and to enforce its decrees.Draggoo v Draggoo, 223 Mich App 415, 428; 566 NW2d 642 (1997).

A court possesses inherent authority to enforce its own directives. Wiand v Wiand, 178 Mich App 137, 144; 443 NW2d 464 (1989).

4TH ISSUE issues is whether the trial court properly limited plaintiff's recovery of attorney fees and costs; In re Temple Marital Trust;Once again, the parties negotiated an agreement to enforce the provisions of the judgment by requiring the other party to pay the costs and fees of enforcing its provisions.While the record demonstrates that plaintiff had been attempting to collect the lump sum owed to her prior to the case’s reassignment, the trial court nevertheless limited the award of costs and fees.Because the specific language in the judgment leaves no room for interpretation, the trial court’s limitation constituted an abuse of discretion. See In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).

5TH ISSUE is whether there should be Interest awarded on the defaulted amount; Olson v. Olson;The statutory interest on money judgments, MCL 600.6013, does not apply to divorce judgments, but in appropriate circumstances a court may award interest in its exercise of equitable powers. Olson, supra at 351. In its discretion, a trial court may award a party interest where the payments due on a property settlement are overdue. Reigle v Reigle, 189 Mich App 386, 394; 474 NW2d 297 (1991).

6TH ISSUE:is whether the following state statute is applicability . It is MCL 600.6013; Reigle v. Reigle; Request for assignment of the case to another judge on remand; Bayati v. Bayati; People v. PillarA case should be assigned to a different judge on remand if it would be unreasonable to expect the trial judge to be able to put previously expressed findings out of mind without substantial difficulty. People v Pillar, 233 Mich App 267, 270-271; 590 NW2d 622 (1998).The Michigan Court of Appeals found However, our review of the entire record does not demonstrate that the trial judge will be unable to put his previous rulings out of his mind, and justly resolve the issues at a subsequent hearing. Pillar, supra at 271; Bayati, supra at 603.See:Court: Michigan Court of Appeals (Unpublished),Case Name: Slota v. Slotae-Journal Number: 45029,Judge(s): Per Curiam - Servitto, Fort Hood, and Stephens ,UNPUBLISHED,February 9, 2010 ,No. 285676,St. Clair Circuit Court,LC No. 02-002811

Divorce

2009-11-29T04:43:00.000-08:00

FAMILY RIGHTS and Divorce Overview
Posted here by:

Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer
.http://terrybankert.blogspot.com/

Articles on Divorce and lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html

Do you need help now?
Call 810 235-1970

A Family Divorce starts with the filing of divorce legally.But between the man and wife it begins much earlier.A divorce will ultimately be granted under the no fault standard. The first decisions will be when to file, where to file, whether to seek child support, custody ,alimony and other temporary relief.On the filing date one party must have resided in Michigan for at least 180 days and in Genesee County for 10 days immediately before filing. Residence means the place of a permanent home where the party intends to remain. Residence has the same meaning for county and state purposes.

Mere physical presence in the county for 10 days does not establish residence.

Lehaman v Lehman, 312 Mich 102, 19 NW2d 502, (1945). Residence means the place of a permanent home where a party intends to remain.

Banfield v Banfield, 318 Mich 38.

If both parties live in Michigan the party that files first will establish the case in the county they file in.(venue)A Michigan resident who enters the military does not lose residency status because they are out of state McFadden v McFaddeen 336, Mich 557, 59 NW2d 1 (1953).

There are limitations on what may be done while a parent is on active duty.Legal ground for divorce in Michigan is when "There has been a breakdown in the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved." MCL 552.6

The other spouse needs to be notified , called service, and given reasonable opportunity to retain counsel. Sometimes it takes a while for both parties to accept that they are divorcing.When there are minor children and one of the parents is incarcerated the party starting the divorce must contact the Department of Corrections to confirm the prison number and location of the party and put this in the complaint for divorce.

The caption of the petition or motion must state that a telephonic hearing is required. MCR 2.004(B). The court must issue an order requesting that the Department or facility where the party is located allow the inmate to participate in the proceeding by telephone. County jails are not included in this statute.

Most cases involve a series of scheduling and settlement events with the court. There may be a hearing on temporary issues to stabilize the family until a divorce judgement can be entered. There is a mandatory waiting period of 60 days for families without children and 6 months for families with children.

The waiting period is for the benefit of the children.

In Genesee County the series of events will begin with a temporary hearing court date to stabilize children and family finances.The court will several months later set a pretrial date to resolve discovery timeliness and narrow the issues followed by a settlement conference with the judge and then trial.

The parties may settle at any time.Friend of the court mediation may be provided for custody and parenting time disputes.

The court may at any time refer a contested issue to mediation.Some local judges have an alternative dispute resolution or mediation process that they order their cases to.This is where a third party and attorney or an agency tries to resolve the issues without a trial.

The legal procedure concludes with entry of a judgement of divorced. Most cases get to this point without a trial.

There is a great value in the parties settling their own issues of children and finances. Good parenting in divorce includes the ability of the parents to learn ways to negotiate their difference and show children that they are loved and secure.The final document entered with the court called a judgement of divorce.

To finalize the judgement a brief court hearing is required. Consent judgement are routinely approved.

No divorce judgement may be entered without a hearing in open court at which proofs are taken. The testimony of at least one party must establish the statutory grounds for divorce andjurisdiction.In those few cases where a trial is required entry of judgement follows a ruling by the court on the disputed issues.

The parties are divorced when the judgement is signed and filed with the court.

Posted here by:

Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html

Do you need help now?
Call 810 235-1970
See:Michigan Family Law Benchbook Second Edition, Institute of Continuing Legal Education 2006, Chapter 1Michigan Family Law 6th Edition, Institute of Continuing Legal Education 2006

test

2008-09-22T01:44:00.001-07:00

test