caerula's Diaryland Diary ----------------------------------------------------------------------------------------- court Where to start? From the beginning, I suppose. We arrived at court a little before 3:30. BB's parents, BB, me, my mom. My dad kept YB, and planned to meet us in Lansing afterwards. We waited. And waited. Watched their side file in. Dementors #1,2, and 3. Their lawyer. They sat at tables before the judge, across from BB and our wonderful lawyer. Another daughter, and her husband. YB's godparents. All sitting perfectly still on benches across from us and acting like we weren't there. We waited. About 3:50 (we were supposed to start at 3:30), I went downstairs to call Dad and let him know not to meet us until later. When I got back upstairs the judge had arrived and begun, with a review of the case history. He went through every filing, every order, every complaint. He made particular not of how long this case has been draggin on. Then, finally, he moved on to a review of the child custody factors. In Michigan, the law works like this. In third party custody cases, which is what this was (BB suing the Dementors for custody, which they had retained since YB was abt 2 years old), the moving party (BB) must prove by a preponderance of the evidence that it is in the best interest of the child to to be with him. There are two competing presumptions: 1, that it is always in the best interest of the child to be with a natural parent, if the parent is fit, and 2, that it is in the best interest of the child to stay in their established custodial environment. In the past, that established environment had always been with the Dementors, and that's why BB had such a hard time showing that YB shouyld be removed from that environment. Last summer, however, a different judge entered an order for shared physical custody, where YB was with the Dementors for the first half of the school year, and with us from January until now. That set it up so that it could be found, this time, that there were two established environments, which put BB finally on a level playing field with the Dementors. That was the first finding: YB has two established custodial environments. That effectively canceled out the presumption about environment being a factor. What was left was the 11 factors that Michigan law says must be weighed when making a custody ruling. To simplify, all else being equal the judge will look at the factors and decide if either party prevails on any of them, or if the parties are equal. Theoretically, the party with the most factors in their favor will get custody. What makes it more complicated is that nothing says the factors must be weighed equally.Yesterday the judge went through them one by one, explaining how he weighed each and his reasoning. 1. The love, affection and other emotional ties existing between the parties involved and the child. In the past this had been found to favor the Dementors, as they had spent the bulk of time with YB, and it was therefore assumed by Friend of the Court that there were stronger ties there. Yesterday the judge found this to be equal, favoring neither party. 2. 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. Again, equal. They tried to get the advantage here by pointing out that they are Catholic, had YB do his 1st communion this year, etc., while we do not take him to church. The judge found that since we didn�t interfere with his religious education on their part, everything else was equal, so he couldn�t weigh that in their favor. 3. 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. Again, equal. 3. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. This has to do with the ECE, which was found to exist at our home and at YB�s grandparents, so again it was equal. In the past, this has always favored the Dementors. 4. The permanence of the family unit of the existing or proposed custodial home or homes. Dementors� lawyer tried to argue that they had been married 30 years, while we have only been married a year. This didn�t wash, fortunately. The judge commented that he was impressed with me and thinks I am a �plus� in BB�s case. 5. The moral fitness of the parties involved. Equal/Not at issue, as there were no allegations of unfitnesss. 6. The mental and physical health of the parties involved. Equal; unfortunately we had no way of proving how insane those people are. 7. The home, school and community record of the child. This factor the judge saw as slightly favoring us. YB has �blossomed� at school this semester, his behavioral difficulties at school have decreased, and his academic performance has improved. The Dementors� refusal to consider the possibilty of ADHD, which their lawyer tried to say was a red herring, was something the judge considered, and that we seem to place more emphasis on YB being �a well-rounded individual.� The judge commented on how the Dementors, #1 in particular, seem �overinvolved� in YB�s life, and also are overindulgent. 8. The reasonable preference of the child if the court considers the child to be of sufficient age to express preference. The judge stated that although he believed YB was old enough to express a preference, and it was fairly obvious that his preference would be to go back to his grandparents� home, we could not be sure how much of that was YB�s own thinking and how much was his desire to make people happy and tell them what they want to hear. So the judge did not consider this as a factor. 9. 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. This was the clincher. This �clearly� favored BB, and the judge in fact lectured the Dementors for quite some time for their �subtle and not-so-subtle� attempts to adversely affect YB�s relationship with his father. He told them off for the constant emails and phone calls during the last 6 months, for not finding time to have YB call us when he went on vacation with them for 10 days, for their pattern of not involving BB in decisions regarding YB, and for not giving YB space to adjust to his new environment after he moved here. The judge said that was obvious that they were still punishing BB for the fact that he was not involved the first year of YB� life, when they themselves had admitted that BB didn�t know YB was his son until after YB was a tear old. He also cited how, on the stand, D#1 referred to BB several times as �that individual.� This was something we were really hoping the judge would pick up on, as it typifies D#1�s attitude. The judge told #1 directly that �that�s a dangerous road to start down.� OTOH, BB has repeatedly compromised with them, trading time when they needed certain weekends, letting htem know about soccer games and school concerts, etc. They have not reciprocated at all. It was obvious from their reactions that # 1 & 2 could not understand in the least what was being said to them, but it was validating for us to finally hear that someone else saw what was going on. 10. Domestic violence - regardless of whether the violence was directed against or witnessed by the child. Fortunately, not a factor. 11. Any other factor considered by the court to be relevant to a particular child custody dispute. This is where it gets a little weird. Any judge can use this to bring out issues he feels affect the case in particular, apart from or connected to the other 10 factors. What our judge cited here was the Dementors� �overinvolvement.� The daily emails, emphasizing how much they miss YB, how they can�t wait 'til he comes �home.� Having YB sleep on the floor in a sleeping bag in their room when he visits on weekends. The testimony that their weekend w/ YB were like a marathon, trying to fit in everything YB wanted to do in two days. Both #1 & #2 talked abt that on the stand; taking him everywhere with them, running all over town visiting friends and relatives, making sure they stop at his favorite ice cream place and trading card shop, etc. The judge�s words on this � and I wrote them down verbatim, so I could remember exactly � were �What is the function of those weekends? Just to entertain an 8 year old and be at his beck and call? Is that in YB�s best interest?� Again, something they will never recognize as being overindulgent and letting YB run their lives, but gratifying to know others see it the way we do. The other thing he cited was how they continued to make plans for YB while the decision was up in the air � enrolled him at school up there, signed him up for 4H and a soccer team, and told YB that he was coming back to live with them. That, in the judge�s eyes, shows an insensitivity to YB's needs and a focus on what they want to be true, rather than acceptance of the reality of the situation. He also cited again how most of their actions regarding YB have been at BB�s expense -- making plans on BB's time, and then making BB look bad to YB if he doesn't go along, taking YB out of school for vacation instead of going the week of spring break like they were supposed to, telling YB his dad wouldn't let him do things. Reprehensible behavior.
So there were 8 equal factors, and 3 in BB�s favor. Then came the really awesome thing. The judge addressed BB directly. He said, in effect:
You have done everything anyone has asked of you. You have jumped through every hope the court, Friend of the Court, and the Dementors have put in front of you. I don�t know what more you could do to prepare yourself to care for your child. You have spent 5 years trying to get your day in court, and have been frustrated at every turn; by lawyers, by social workers, by the Friend of the Court. I�m going to state for the record that the Friend of the Court frustrated your efforts to get a fair shake, and showed unprofessional behavior and bias in their assessment of your case. (He added that he had never in any case stated that on the record re FoC.) The FoC overreacted, the Friend of the Court social workers become overinvolved. For that you deserve an apology. That was such a gratifying and validating thing for BB to hear, and I'm so glad the judge addressed that. This has been going on for so long, and BB has been told by so many people that he should leave his son where he his happy, that he isn't considering YB's best interests but just his own, that he's ruining YB's life. We know none of that's true, but it was really hard to keep going when we were shot down at every turn. It was impossible, after a while, not to wonder if we really were doing the right thing, and we knew that life would be a lot easier (and less expensive) if BB dropped it. But he perservered, and to hear the judge finally recognize that really took a huge weight off. So what will happen is this. BB has sole physical custody. For the time being the Dementors will continue to share joint legal custody, so that when he is visiting them they can get medical care and stuff as needed. YB will spend the majority of his time with us, with the Dementors having alternate weekend visitation, rotating holidays, and two 3-week blocks in the summer. That�s more than we would like, of course, but having that much time with them in the summer will probably help YB make this transition. The other benefit it, if they continue to play these head games, BB can file for reduced visitation on the grounds that they are violating the order. And eventually BB will take over full legal custody as well. I�ll write more later about the aftermath, leaving court and talking to YB. 10:11 a.m. - 2001-07-12 ----------------------------------------------------------------------------------------- |
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