The Legislature has statutorily specifically defined parental rights and parental obligations such that issues involving parental rights are distinct from parental obligations. Nothing in the statutory structure indicates that the loss of parental rights automatically results in the loss of parental obligations. Rather, a parental support obligation continues unless a court of competent jurisdiction, in the exercise of its discretion, modifies or terminates the obligation. In re Beck, ___
___ (#140842, 12/20/2010) Mich
Wednesday, December 22, 2010
Thursday, December 16, 2010
The premise of Open & Obvious requires that the condition be open and obvious upon casual inspection.
In Watts v Michigan Multi-King, __ Mich App __ (#293185, 12/14/2010) the court of appeals rejected defendant’s assertion that a wet floor in a restaurant is a common everyday hazard of which customers are expected to be aware, making it always open and obvious regardless of its visibility. In Watts the plaintiff introduced evidence that this was not the case. Although the parties essentially agreed that the floor had been mopped shortly before plaintiff’s fall and the report from the store indicated that there were “wet floor” signs present, plaintiff testified that there were no signs present. Plaintiff also testified that both before and after her fall, the tile did not look shiny or wet and nothing else about its appearance appeared out of the ordinary. Summary disposition was thereby improperly granted. The premise of open and obvious requires that the hazard would be “obvious” upon “casual inspection.” O’Donnell v Garasic, 259 Mich App 569 (2003).
A landowner has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). However, a premises possessor is not generally required to protect an invitee from open and obvious dangers, unless special aspects of a condition make even an open and obvious risk unreasonably dangerous, in which case the possessor must take reasonable steps to protect invitees from harm. Id. The question of whether a condition is “open and obvious” depends on whether “it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.” O’Donnell, supra. The test is objective; “the inquiry is whether a reasonable person in the plaintiff's position” would have done so. Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008). When deciding a summary disposition motion based on the open and obvious danger doctrine, “it is important for courts . . . to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.” Lugo, 464 Mich at 523-524. If genuine issues of material fact exist regarding the condition of the premises and whether the hazard was open and obvious, summary disposition is inappropriate. See Bragan v Symanzik, 263 Mich App 324 (2004).
Friday, December 3, 2010
In Shade v Wright, __ Mich App __ (#296318, 12/2/2010) the Court of Appeals held that the change in circumstances or proper cause required to modify a court order differs depending on whether the decision is one of custody or parenting time. With regards to custody, if there is the required change of circumstances or proper cause, custody decisions require findings under all of the best interest factors under the Child Custody Act, MCL 722.23. If it is a motion to modify parenting time, although the statutory best interest factors and the factors listed in the parenting time statute, MCL 722.27a(6), are both relevant, parenting time decisions require only findings on the contested issues from the two statutes.
A. The change in circumstances or proper cause requirement.
The term “‘[c]hild-custody determination’ means a judgment, decree, or other court order Providing for legal custody, physical custody, or parenting time with respect to a child, and includes a permanent, temporary, initial, and modification order. . . .” MCL 722.1102(c). Under MCL 722.27(1)(c), a trial court may “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . .” A modification of such a judgment or order is only permissible when it is in the minor child’s best interests. MCL 722.27(1)(c).
B. The burden of proof.
If a modification would change the established custodial environment of a child and would thereby be a change in custody, the moving party must show by clear and convincing evidence that it is in the child’s best interest. Pierron v Pierron, 486 Mich 81, 92 (2010); MCL 722.27(1)(c). If, however, the proposed change does not change the custodial environment, however, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests. Pierron, 486 Mich at 93.
In Vodvarka v Grasmeyer, 259 Mich App 499 (2003) the Court of Appeals articulated the proper cause and change of circumstances sufficient to warrant a change of custody. Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.
With respect to child custody disputes, “[t]he goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances.” Corporan v Henton, 282 Mich App 599, 603 (2009). “Providing a stable environment for children that is free of unwarranted custody changes . . . is a paramount purpose of the Child Custody Act . . . .” Vodvarka, 259 Mich App at 511. Therefore, in the context of a child custody dispute, the purpose of the proper cause or change of circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Id. at 509, quoting Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594 (1995).
To establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Id. at 512.] In order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and wellbeing. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. . . [Id at 513-514].
D. Parenting Time.
Nothing in the Vodvarka opinion requires that the standards used to determine the existence of proper cause and change of circumstances for custody determinations applies to determinations regarding parenting time, absent a conclusion that a change in parenting time will result in a change in an established custodial environment. Id. at 509. The proper cause and change of circumstances definitions as articulated in Vodvarka are guided by the best interest factors in MCL 722.23(a)-(l), and do not take into account the parenting time factors in MCL 722.27a(6)(a)-(i).
MCL 722.27a provides, in relevant part: (6) The court may consider the following factors when determining 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.
A more expansive definition of proper cause or change of circumstances is appropriate for determinations regarding parenting time when a modification in parenting time does not alter the established custodial environment. The Vodvarka concerns do not exist when a modification of parenting time does not alter the established custodial environment because determinations regarding child custody and parenting time serve different purposes. Whereas the primary concern with child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents. See MCL 722.27a. To that end: [p]arenting time shall be granted in accordance with the best interests of the child and it is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents, in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent. [MCL 722.27a(1).]
Thus, the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should consider in making determinations regarding modification of parenting time. If the change is a parenting time decision, the normal life changes that occur with a minor child may be sufficient to establish the required change in circumstances or proper cause.
Wednesday, December 1, 2010
In Szpak v Inyang, __ Mich App __ (#292625, 11/23/2010) the Court of Appeals held that in conjunction with a defendant’s request to ex-parte interview plaintiff’s treating physicians under HIPAA, it is an abuse of discretion for the trial court to require that plaintiff’s counsel receive notice of, and an opportunity to attend, ex parte interviews by defense counsel with plaintiff's treating physicians. The trial court's authority to issue a protective order to ensure compliance with HIPAA is controlled by MCR 2.302(C). The imposition of conditions unrelated to compliance with HIPAA, or any related privacy concerns is not permissible in the absence of evidence to support a reasonable concern for intimidation, harassment, and the like.