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Opinion & Order

 

Is Judge Adams A Bad Judge? HELL YES!!!
Below is a recreation of the order that Judge Adams issued in our custody case. This shit was so inaccurate from the Judge that it can only be described as plain and old fashioned biased. As you read the order, clicking on the "FACTOID" links will provide you with the facts of our case as they were presented to the court. Transcripts will support all factoids.

 

BTW: Judge adams, You said that neither parent has a monolpoy on telling the truth, I CHALLENGE you to so prove that I told a single lie.

 

This opinion is proof positive of the biased that I have complained about for years.

 

 

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

FAMILY DIVISION

 

LEANDER O. RICHMOND,

                                    Plaintiff,                                   Cane No. 01-138612-DM
                                                                                    Hon. Deborah Ross Adams

v.

my ex RICHMOND,

                                    Defendant.
__________________________________________________________________


CHILDERS SHKRELI, PL.L.C.                               

By: NICOLE M. CHILDERS (P72613)           

By: DIANA SHKRELI (P7370S)

Attorneys for Plaintiff

Ford Building. Suite 1105

615 Griswold Street

Detroit, Michigan 48226

(313) 784·9697

(313) 784·9637 (facsimile)

LAW OFFICES OF WAYNE P. KRISTALL

By: WAYNE P. KRISTALL (P24471)

Attorney for Defendant

17200 W. 10 Mile Road, #203

Southfield, Michigan 48075

(248) 440·9093

(248) 440·9097 (facsimile)

 


_________________________________________________________________

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR

CHANGE OF CUSTODY AND REFERRAL TO FRIEND OF

THE COURT AS TO CHILD SUPPORT

 

                        At a session of said Court, held in the Circuit Court

                        for the County of Wayne, Detroit. Michigan

                        ON: AUG 20 20ll

                        PRESENT: DEBORAH ROSS ADAMS

                                                Hon. Deborah Ross Adams

         This case was initiated on November 12, 2001 as a domestic relations divorce

action. An Order of Support was entered on November 27, 2001 . which established

child support and awarded physical custody of QXXX Richmond , born October 16,

2000, to my ex (Richmond) Gates (Mother). A Consent Judgment of Divorce was

entered in the case on May 28, 2002.

            The case involves a highly contentious custody matterwith parties who have a long history of major conflict relating to parenting of the subject minor child. On September 17, 2009, Father filed a Motion for Change of Custody seeking a modification of the existing custody order to grant him sale custody of the minor child

based on Mother's alleged neglect of the minor child. Said Motion represented the third Motion to Change Custody filed by the Father since the Court's entry of the original custody order (by consent) in this case on May 28, 2002 (Consent Judgment of Divorce entered by Judge Kathleen McDonald which granted Mother sole physical custody and parenting time to Father (alternate weekends from Saturday until Monday).1

            As a result of the filing of the instant motion, the matter was referred to FAME on December 18, 2009, for an evaluation and review of the 12-factors concerning custody

and parenting time. An evaluation of the parties was conducted by Angela Asteriou,

FAME Family Clinician on February 10, 2010. A report was submitted to this Court on

__________________________________________
L Prior Motions to Change Custody were filed by Plaintiff Leander Richmond in 2003 and 2005. There were

referrals to FAME in 2002 and based on these prior motion filings, Court records show that the 5/21/2002 referral

to FAME was administratively closed on 8/3/2002 due to no payment by either party; the 6/17/2003 referral to

FAME by Referee Lemire/Judge McDonald on Plaintiff's Motion to Change Custody was administratively closed on

8/20/ 2003 due to no payment - no appointment held; 5/14/2004 Motion before Referee Calandro referral to

FAME - 5/14/2004 was administratively closed on 8/10/2004 due to no clinical contact -Incomplete paperwork.

3/21/2005 referral to FAME by Judge William Cabalan re: custody and parenting time - evaluation conducted on

5/3/2005, with report submitted to Court on 9/29/2005; Order entered by Judge Cahalan on 1/17/2006 - Joint

legal custody, sale physical custody to defendant-Mother and specific parenting time to Father (Stipulated Order);

Order entered by Judge John Kirwan on 11/8/2006 amending parenting time and child support - Plaintiff Father to

have parenting time every Thursday, 4:30 p.m. and Defendant Mother to pick up minor child on Sunday, 6:00 p.m.

Child Support modified to $675 .00 per month. Plaintiffs new Motion to Change custody filed 9/17/2009 - Referral

to FAME for recommendation on 12-18-09, evaluation conducted 2/10/2010, initial report submitted to Court on

5/4/2010. Addendum to FAME initial report (A. Asteriou - Family Clinician) submitted to Court 6/29/2010;

Referral to FAME on July 19, 2010 for evaluation by different FAME clinician due to A. Asteriou's alleged bias - by

stipulated agreement/ order and OK of J. Frasik, FAME Director obtained - in lieu of court signing subpoena to

review all of A. Asteriou's case file s. Evaluation concluded 8/4/2010, report of P. wells, FAME Supervisor,

submitted to Court on 11/3/2010.

May 4, 2010. The report recommended modification of the existing child custody in the

case, awarding Plaintiff sole custody of the minor child, with parenting time to the

Defendant. An Addendum to the initial FAME report, containing further review/

application of the 12 factors - and consideration of the established custodial

environment requirement was submitted to the Court (and to the parties) by Ms.

Asteriou on June 29, 2010. The matter was subsequently re-referred to FAME for an

evaluation by another FAME clinician, as a result of allegations of bias on the part of

the original FAME clinician, and A. Asteriou . amidst allegations of her failure to spend

equal time with the parties in conducting her evaluation. (Factoid)The matter was assigned to a

different clinician by FAME Director John Frasik2 and another evaluation of the parties

was conducted on August 4, 2010. A report was submitted to the Court on November

3,2010, recommending joint legal and joint physical custody regarding the minor child,

with specific parenting time to the Father on alternate weekends during the school year,

holiday parenting time, and extensive parenting time in the summer months, and daily

telephone contact with the minor child .

            Because of the extreme level of conflict in these proceedings and the severity of

impact on the minor Child, the Court continuously encouraged the parties throughout the

pendancy of the matter to cooperate in parenting QXXX and to work towards a

resolution of their issues absent litigation -- a full evidentiary hearing to determine the

"best interest of the child ." A settlement agreement regarding Plaintiffs Motion for

Change of Custody was placed on the record on May 29, 2011 but was later set aside (FACTOID)

 

 

_______________________________
, T
he Court re-referred the matter to FAME in lieu of signing the requested subpoena Order to review all of Ms.

Asteriou', case files to show bias, after communications with J. Frasik, FAME Director, and with attorney's

agreement. (FACTOID)

by the Court. The Court took this to mean no consent agreement regarding the

pending custody motion was actually reached by the parties. Evidentiary proceedings

regarding said motion took place on nine dates in February 2012 and concluding on

June 1,2012.

            QXXX Richmond was born October 16, 2000. QXXX is currently 11 years old.

The parties were married to each other for a short period of time before divorcing on

May 28, 2002. Counsel representing the parties stipulated that there was proper cause

or sufficient change in circumstances to warrant an evidentiary hearing on Father's

Motion for Change of Custody. Generally, in order to establish a change of

circumstances, the moving party 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. Vodvarka v

Grasmeyer, 259 Mich App 499 (2003). These must not be simply normal life changes,

and there must be at least some evidence that the material changes have had or will

almost certainly have an effect on the child.

            In this case, the Court confirms that. since the entry of the initial custody order in

this case, which granted Mother sale physical custody and parenting time to Father,

proper cause a change in circumstances from the time of entry of the original custody

order exists.

Findings of Fact:

Witnesses:

__________________________
, An evidentiary hearing scheduled when plaintiff's counsel requested a transcript of these

proceedings "for appeal purposes" the next day after placing the purported agreement on the

record and based on the parties' failure to submit an order signed by both attorneys and the

parties that complied with the settlement terms placed on the record by the date set by the Court.

 

Angela Asteriou Family Clinician FEMC Unit (Plaintiffs Exhibit 34). She testified that

the parties were equal on factors a. b. e. f, h, and I. In her report she said the father

was favored on the other factors not including child preference.

Her initial report was dated February 12. 2010 but was submitted to the Court

and parties on May 4, 20100. It is more than 28 months old . Ms. Asteriou indicated

that she has not reinvestigated since the January 27. 2010 interview date. She testified

that she did not recall how long she spent with the mother but that it typically would

have been around 30 minutes. She recalled that the meeting with the two parties and

her was very brief.

She testified that she felt the mother was deficient in providing for the asthma

care of QXXX. She based this on statements of the Father and Dr. Marcus. She gave

much consideration to the CPS investigations of the Mother even though no abuse was

substantiated nor any official action taken. She indicated in summary that she did not

believe the mother's statements that she gave the child medication as prescribed by Dr.

Marcus. She did not show any knowledge of QXXX's medical condition since January

27.2010. however, she testified as to events that occurred in 2002. 2003, 2004. 2007,

and 2008; no recent update.

She indicated there was a problem with school and medication. Hawver. there

was no documentation provided to the clinician by the school that supports her

recommendation. Ms. Asteriou appeared to take Father's word without verification.

Regarding factor 0 the clinician found that both parties had resided in two homes

during the past 8 or more years. Testimony indicated there was a very short time when

 

 

there was a delinquency in paying utilities. The clinician did not provide a basis for

favoring the Father in this factor.

Regarding factor g, the Mother testified that she was taking medication for stress

and anxiety. No finding was made that there was any impact on parenting time to

Father. The clinician did not have knowledge that QXXX's medication has been

reduced since then.

Regarding factor j, there is reference to the show cause hearing over the years.

This is the basis for her finding. The Court has considered these previously and

considered it in rendering its decision in this matter.

Regarding k, the clinician may have relied on outdated information. The Mother

has obtained two PPO's against the father, one lasting a year. A PPO against the

mother from the stepmother was obtained for a year in 2004 . Mr. Richmond has never

obtained a PPO against the Mother. There was at least one police visit to the home of

the Mother. Based on this, the clinician favored the Father. The police visits were not

documented by the clinician and later testimony minimized these events. This finding is the evidence provided.

FINDING: Cross-examination elicited testimony that the clinician primarily accepted theunsubstantiated statements of Father and ignored/dismissed the statements of the Mother. She took little or no time to speak with the Mother. She appeared to have gathered little verification of the facts.

 

 

            The testimony of Ms. Asteriou is not given great weight because she did not

spend adequate time with all of the parties, failed to document, seemed to rely on very outdated information, and gave the appearance of giving Ms. Gates little consideration. Priscilla Wells Fame Supervisor Defendant's Exhibit B Interview of August 4,2010

            She testified that the parties were equal on factors a, b, d, e, f, and h.

            She favored factor c for the father primarily on the asthma issue. Assuming

factually that QXXX's medical condition is vastly improved with no incidents of problem for a period in excess of a year, this factor would no longer be a concern for the Supervisor. Ms. Wells did not find that QXXX's blood was drawn by his mother.

Ms. Wells favored 9 for Father but appeared to give very little weight to it. The

Mother was following directives of her family doctor. No evidence was presented

indicating any impact on the child.

            Ms. Wells did not address the issue of custody threshold when she made her

recommendation. She did not recommend a change in custody, only an increase in

parenting time for the Father.

            She noted that the Father was controlling, inappropriate and exhibited poor

judgment in his numerous sexual behaviors. such as when he required the Mother (Ms. Gates) to perform certain sex acts upon demand. (as reported to her by Ms. Gates). She noted his cheating and his extensive use of pornography. She testified that the Mother indicated the Father was disrespectful and insulting to her.

 

 

 

            She testified that the child seems to be doing well in school and the issue of

school absences was not deemed to be a significant issue, No complaints form the

school were presented to her.

            The Child was thriving in his current surroundings and there was no need to

make any substantial changes other than having the parents get along better. No

change in custody was warranted as the mother had in effect an established custodial environment that was working for QXXX, according to the FAME clinician,

            As a supervisor of Ms, Asteriou, Ms, Wells indicated that she spent a greater

amount of time talking to the parties separately and individually than did Ms, Asteriou.

She was less willing to accept the word of one party over the other, She felt that Father could benefit from anger management and that Ms, Gates should continue to her mental health, (i,e., anxiety, depression) issues, She saw no indication that QXXX was effected by Ms, Gates' mental health and noted that the child did extremely well with his step-father and siblings, She saw nothing in Ms, Asteriou's report that would cause her to conclude that QXXX was not doing well with his Mother, once QXXX's health issues have been appropriately addressed. Ms. Wells was more willing to attribute some of the problem to the lack of cooperation of the parties rather than to one parent. She indicated that much time had elapsed since her report and even more from Ms, Asteriou' report and that FAME input on medical might be less important at this point.

The Court finds the testimony of Priscilla Wells to be very credible and will give

credible weight to the testimony and adopt many of her recommendations, Ms. Wells' opinions are well thought out and relevant and are given considerable weight.

 

 

PAUL GATES: He testified that Mother is a very loving and caring parent to all of her

children, including QXXX, He sees affection in both directions between Mother and

son. He testified that the mother helps with school homework and there are no

discipline problems with QXXX. He stated that Qunicy is a very good child and the

child does not exhibit any stress while at the home, Qunicy loves and adores his

siblings. He did not witness the mother attempting to draw the blood of QXXX.

He gave testimony that on June 25, 2009, his wife took a prescription that was

later modified for being incorrect. She acted out through no fault of her own and the

police were called out to the home, There were no problems as a result of this incident between husband and wife relating to the fact that he was hurt by his wife during the incident. He said it was not her fault. There was no prosecution and no court proceedings resulting from the incident.

He testified that on a number of occasions he has witnessed or heard Mr.

Richmon be disrespectful and demanding of his wife and of him, He has learned to

tolerate it to minimize problems for his wife, He testfied that he and his wife are

Jehovah's Witnesses and they regularly attend meetings and try to raise their children in a good moral environment. Mr, Gates played voice mails for the Court showing Mr. Richmond's propensity to swear and be disrespectful -- calling people, him, his wife, his wife's attorney and the others stupid.

The Court adopts the testimony of Mr. Gates in its findings and finds him to be

credible.

 

 

 

            Rozenia Johnson: She is a neighbor of my ex. She testified that she

sees Ms. Gates three times a week and her family nearly as often. The family works

well and my ex is a good mom to all of her children including QXXX according to

the witness. She observed the Mother spending time inside the custodial home with

QXXX including homework. She has not seen QXXX experiencing problems in the

home. She testified that QXXX appears to be doing well in the home.

The court adopts the testimony of Ms. Johnson in its findings and finds her to be

credible.

            Teacher Monique Dooley: She testified that she was Qunicy's teacher for Math

and English. She testified that QXXX is a nice child that does not cause problems in

the class and does a good job with his school work. While his attendance includes a

number of absences they have not affected his performance in school and are not a

concern to the school. His homework is not a problem for her but could be a problem

with another teacher, Ms. Andrews, per the report card.

Findings of the Court are that Ms. Dooley's testimony IS credible and her testimony is adopted by the Court.

MICHAEL PETTY: He testified that he helps with return of QXXX to Ms. Gates.

Officer Darryl Lightfoot: He observed slurred speech of Ms. Gates and irregulary body

movements when he came on June 25, 2009. An arrest was made but he is not aware

if anything further action occurred. It appeared to him that Ms. Gates was under the

influence of drugs.

 

 

 

 

            The testimony of the officer is accepted by the court. It may have appeared to

him that physical contact occurred between Ms. Gates and the Mother but no

competent evidence that a crime had been committed in view of other testimony

presented in this case.

LEANDER RICHMOND: He is employed by AD Transport Express and works 8am to 5

pm and his wife is a stay at home mom. His chief complaints relate to QXXX's asthma

condition and the Mother's failure to obey orders of the Court. He claims the mother

does not give the medication to QXXX and does not follow Dr. Marcus's instructions.

He says that he supplied all the mdication to Ms. Gates that she needed. He presented

information regarding the number of vials to demonstrate that Ms. Gates is not providing

QXXX with enough medication. When asked about QXXX's medications, he admitted

that he did not know that hydrocortisone was for treatment of seasonal allergies and not

asthma. He feels Qunicy has had too many asthma attacks and therefore he should

have custody because it is the Mother's fault. He did not testify to any such episodes

since Dr. Marks has been treating QXXX in February 2011 .

            He testified that Mother does not properly monitor to see if QXXX is bathed, his

teeth brushed, and properly clothed. This testimony regarding the number of said

instances of these behaviors was limited in terms of time and duration. Most of these

alleged instances came after he questions QXXX about them. He testified that Mother

does not follow the Court orders as written and he produced text messages in support

of his position He complained about missing a few hours of parenting time and

acknowledges that he has received time in addition to the court ordered . He

acknowledged that he did not clearly state that he would not enroll the child in Canton

schools in the fall of 2011 . Confusion about Christmas and Halloween 2011 are major issues for him even though they only accounted for several hours each time.

            He testified about not receiving daily phone contact with QXXX but yet admitted that he was not calling QXXX's correct cell phone number.

            He testified about QXXX's absences in school but provided no documentation that this affects his school performance. He provided no documentation that QXXX was poorly dressed in school nor that the school complained of his hygiene including bathing and brushing.

            Regarding the blood draw incident, Mr. Richmond testified to his outrage

regarding the incident. He did not provide evidence that QXXX was negatively

impacted by this action, however, or that in any way it affected the child·parent

relationship; nor did he say the child suffered pain.

            He admitted to having sex with is current wife while still married to Mother.

            It is the Finding of the Court that Father had legitimate concerns relative to

QXXX's health but that the health concerns are not currently as significant as he

portrays them. Father's failure to cooperate with the Mother suggests Father is more

interested in using these issues for purposes of "winning" than for the purpose of

helping QXXX --parenting QXXX in a manner that is in his best interests. It appears

that his belief structure requires that decisions involving QXXX should be made by him exclusively and that Mother should have little or no input. There are many examples in the record of how little regard he has for the Mother. Plaintiff nearly had a physical altercation with Mother's attorney in the Court room during the trial.

 

 

Findings Re: Father:

His disrespecting FEMC supervisor Priscella Wells on internet.

Contacting Wayne County Prosecutor's Office to take action against Mother on PPO's.

Contacting Chief of Family Court in inappropriate manner during pendancy of case.

Filing bar grievance against the attorney for the Mother.

Inapproriate verbal communication with QXXX.

His making inappropriate and demeaning (offensive) comments to Ms. Gates and Mr.

Gates as evidenced by the voice mails that were listened to in Court; such as "Hey

stupid" dumbasses, "that time of day again", "your attorney is such a retard", "you aren't

goint to do shit", "you blow everything off', "Fuck Judge Adams", "not a fucking secret",

"dufus, "heartless clod", "ignorant mother of my child", "worst mother on the planet"

Father told son they were moving to Minnesota per testimony of the Mother.

QXXX is not allowed to call mom freely per Mother. (FACTOID)

Findings of Mr. Richmond showing his control of Ms. Gates and inappropriate attitude

and behavior towards her:

Uncontradicted testimony of Ms. Gates as follows:

DURING MARRIAGE: Mother testified that she was not allowed to wear make-up

except when he made her go to sex clubs with him

Mother was not allowed to wear necklace because it brought attention to her breasts

 

 

 

 

 

 

Mother was not allowed to go to hair dresser because he told her she could not account

for the time she was gone.

She a 9:00 pm curfew with QXXX per Mr. Richmond.

She was not allowed to consume alcohol or smoke cigarettes.

She was not allowed to work.

Her job was to have sex with him when he felt like it.

Her job was to stay home with QXXX.

He made her got to sex clubs where he would pick out the women he wanted her to

have sex with: if there was a woman he wanted sex with she would have to have sex

with the man.

He required her to host and participate in sex parties at home.

Her driving was limited to her aunt and the grocery store.

Plaintiff never cared for or valued her opinion.

my ex

Regarding medical: QXXX's asthma/allergy condition is under control and has been for more than a year per Ms. Gates. The medications have been reduced more than once by the treating doctor, Dr. Amy marks, who in her written reports, that are exhibits, indicated how well QXXX is doing. QXXX's asthma is under control. Testimony indicated that when the parents see Dr. Marks that the mother usually asks more questions.

            Problems occurred in the past per Ms. Gates because Dr. Marcus did not give

her prescriptions at her pharmacy and because he gave medication to only Mr.

 

 

Richmond who did not always give her same. She went to another doctor because Dr.

Marcus was not willing to see her. She testified that Dr. Marcus did not listen to her and

she had no choice but to see another doctor. She disputes Mr. Richmond's testimony

that she did not give medication as prescribed.

            Regarding attempt at blood draw from QXXX: Ms. Gates testified that she never

drew blood from QXXX. There is no testimony that said she did. She admitted to

using poor judment in attempting to draw blood and expressed remorse. The child was

not hurt and did not complain.

            CPS was told that no blood was drawn as that was the question asked by the

worker.

            She denies that QXXX has a problem with brushing, bathing, dressing.

            Regarding school QXXX is doing pretty well with an occasional problem

handling homework in one class. Mother is working together with him to improve this

area. Attendance has not affected his schoolwork. His average is about a B.

Parent-child relationship is excellent and QXXX gets along well with his siblings.

He goes with the family to Jehovah Witnesses hall. He enjoys his family. Whether it is

schoolwork or play, Mother is there for him. The level of affection between child and

Mother is very high.

            Mother testified that the problem in 2009 where the police came out arose

because she was prescribed the wrong medication and she reacted to it. The

medication was changed and that problem was never repeated.

 

 

 

 

FINDINGS: Together the Mother and Father have been dysfunctional, creating too

much conflict for the child , Neither party has a monoply telling the truth, Sometimes it

may appear that one or both parties would not know the truth if it hit them in their fact.

Regarding QXXX the mother showed poor judgment trying to draw his blood ,

Fortunately QXXX did not suffer in any way,

            Neither party had dealt with their disputes in a way that is QXXX's best interests,

            The past 17months have shown that cooperation and treatment with Dr. Marks

did work in the best interest of QXXX and that is what is important to the Court,

            The issue of giving medications is unclear. The Mother may not be fully believed

and neither is the father, Dr, Marcus last contacted CPS in 2008 and QXXX has not

documented asthma problems since 2009, Therefore, the Court cannot conclude that

Mother's behavior towards giving of medicine is significat enough to disturb the

established custodial environment that exists.

Witness, Dr. Todd Marcus

            After a lengthy voir dire, Dr. Marcus was not qualified as an expert, He said that

Mother was not in parental compliance and the failure to comply was not in the best

interest of QXXX. He recalled seeing QXXX in approximately six months ago only for

a physical examination , He remembered nothing about examining him for asthma or

allergy issues then, He did not bring any records more recent than 2009 and could not

say anything about QXXX's asthma for the years 2010, 2011 or 2012,

The Established Custodial Environment

 

 

 

            Under the Child Custody Act, the first question the Court must address is

whether an established custodial environment exists with either parent or both parents.

MCl 722.27(1 )(c) provides: "The court shall not modify or amend its previous

judgments or order or issue a new order so as to change the established custodial

environment of a child unless there is presented clear and convincing evidence that it is

in the best interest of the child" The statute then defines an established custodial

environment in the following manner:

"The custodial environment of a child is established if over an appreciable time the child

naturally looks to the custodian in that environment for guidance. discipline, the

necessities of life, and parental comfort. The age of the child, the physical environment.

and the inclination of the custodian and the child as to the permanency of the

relationship shall also be considered. The determination of whether a child has an

established custodial environment is a factual determination of the Court."


            Despite QXXX
's physical residence with his mother since 2000, the Court must

determine whether a custodial environment exists under MCl 722.27(A)(c). The

testimony is undisputed that QXXX has lived continuously with his Mother from October

16, 2000 to the present. Mother is his primary custodial parent.

The Court finds that QXXX has an established custodial environment with both

of his parents. While Mother has provided the primary residence for QXXX since birth,

QXXX looks to both of them for love, affection, guidance and discipline. Both have

been involved in his medical treatment and his education.

Since QXXX has an established custodial environment with both parents,

Father's motion for change in custody cannot be granted unless clear and convincing evidence shows that the change is in the child's best interest. Mel 722.27; Duperon v Duperon, 175 Mich App 77; 437 NW2d 318 (1989) .

 

            The Court now turns to evaluation of the best interest factors. As set forth in

MCl 722.23, the best interest factors are:

 (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 stabled, 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.

The Court shall consider each of these factors, in making its determination on the

Father's Motion to Change Custody. The best interest factors must be evaluated by the

 

court, but there is no scorecard. Lustig v Lustig, 99 Mich App 716; 299 NW2d 375

(1980). The weight each factor is accorded is left to the court's discretion. McCain v

McCain, 229 Mich App 123; 580 NW2d 485 (1998).

A. The Love, Affection, and Other Emotional Ties Existing Between the

     Parties Involved and the Child,           

   Both parties clearly demonstrate love, affection and other emotional ties

with the child. The Mother has been the primary caregiver for throughout

QXXX's life, the Father has consistently exercised parenting time. There

was no testimony of Mother relinquishing physical custody, nor of QXXX

having only sporadic visitation with Father at any time. (FACTOID)


      B. The Capacity and Disposition of the Parties Involved to Give the Child

   Love, Education and Guidance and to Continue the Education and

   Raising of the Child in his or her Religion or Creed.


            Both parties testified to providing QXXX with love
, affection and guidance.

It was substantiated that both parents are supportive of QXXX's efforts and

achievements, being actively involved. the Mother assists QXXX consistently

with homework and tutoring, while the Father has exposed the child to

computer systems.

   There was testimony that each parent participates in religious service.

although the Mother testified that she and QXXX attend regularly, while the

Father attends only occasionally. There was no testimony that either parent

engages in the use of corporal punishment as a form of discipline for QXXX.

This factor favors both parties equally.

 

C. The Capacity and Disposition of the Parties 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

The Mother is currently a stay at home caregiver and the Father is

employed at XXXXXXXX in an information technology position and

works the day shift, reportedly earning approximately $XX,000.00 per year.

The mother has been previously employed but testified she lost her most

recent employment as a result of having to come to Court so often to deal

with the various issues raised by Father relating to QXXX (parenting time

enforcement, QXXX's medical treatment, FAME interviews and evaluation,

other various motions brought before the Court). Both parties have been

involved in QXXX's medical treatment for asthma and allergies with

continuous conflicts between the parents - with Father alleging the Mother

was neglectful. Dr. Todd Marcus, the child's former general physician,

testified about filing 3200 complaints with Child Protective Services on Mother

in 2007 and 2008 because of QXXX having acute asthma episodes. Aside

from the testimony of Dr. Todd Marcus, who testified briefly at the court

proceedings on June 1, 2012, testimony was unsubstantiated for medical

negligence from 2006-2009 resulting in the Court ordered medical directives,

and holding the Mother in contempt. Complaints to the Department of Human

Services Child Protective Services by the Father against the Mother were

unsubstantiated to the extent that no competent evidence was presented at

the hearing substantiating that any formal neglect charges were initiated

brought against Mother as a result of CPS investigation(s). A change in

medical doctor/pediatrician occurred from Dr. Todd Marcus to Dr. Amy Marks,

an asthma specialist. Dr. Marcus indicated that QXXX did not show any

acute asthma systems when he saw him 6 months ago for a general physical

exam.

   Testimony substantiated that the Mother exercised poor judgment by

injecting the child with a needle in an isolated incident occurring as part of

practicing for her new job. Mother admitted to this poor choice - to subjecting

QXXX to this highly inappropriate act. The Mother testified that she made this

attempt only on one occasion and has assured the Court that she no longer

engages in this practice. This Court finds that Mother is clearly remorseful about this unfortunate incident, and her poor decision and lapse in judgment. She has presented documentation to the Court evidencing her completion of parenting skills classes. indicating that she is now better educated as a result of the classes she completed.

It has been Substantiated that QXXX's medical health is in good

condition; his asthma/allergy condition is under control and has been for more

than a year, approximately 17 months. Dr. Marks reduced QXXX's medication

more than once, On April 18, 2012, Mother specifically testified that as of his last visit with Dr. Marks in March 2012, Dr. Marks reduced QXXX's medication by 50% due to the child's asthma/allergy systems arresting, Medications are Albuterol and Streizen, an allergy pill of 10 milligrams, and Dr. Marks wanted to see him back in three (3) months.

 

 

   At the conclusion of the evidentiary custody hearing in this case, there

remained some question as to who would be QXXX's treating physician for his

asthmal allergies condition. Through legal counsel, Dr. Marks sent a letler dated May 22 , 2012 to the Court indicating that she was unwilling to provide future medical care to QXXX due to the apparent escalation of the high degree of conflict between the parents regarding such care. The letler basically indicated that she simply did not want to be put in the middle of or subject to the level of conflict, lack of cooperation, and abuse exhibited by the parents. The Court admonished the parties about behavior causing Dr. Marks' termination of

provision of her services to QXXX, as being detrimental to his overall well being and clearly not in his best interests.

On the final day of proceedings, the Mother testified that she was in the

process of arranging for a new medical specialist to treat QXXX, giving

assurances that she would keep QXXX's medical care current

This factor favors the father.

D. The Length of Time the Child has lived in a Stabled, Satisfactory Environment, and the Desirability of Maintaining

   The evidence established that both parents have facilitated a stable and

satisfactory Environment, and the Mother as the established custodial home. Mr. Gates testified that he has assisted QXXX with school work and community activities.

   Both parents testified to living in more than one residence in the past 8

years, with Mother testifying to having at least two prior residences before

establishing her current residence Buena Vista Street in Detroit. There was

testimony that Mother allowed utilities to be turned off for a brief period at the

location on at least one occasion. The Mother gave testimony indicating that

QXXX considers her current residence to be his 'home." Mother did not express any intention to move from this location in the near future. Rozenia Johnson, a neighbor, testified relative to the cleanliness and adequacy of the custodial home and to her observations of healthy interactions between QXXX, his Mother and Step-Father and with his two younger siblings inside the home. No testimony was presented at the hearing citing any instances where QXXX's safety or personal well being has been compromised by virtue of living in the present custodial home (location). The current home environment is safe and stable for the child. Testimony indicated that QXXX is provided much love, affection, guidance, moral and spiritual training and educational opportunities within the present custodial home.

This factor favors the Mother.

E. The Permanence, as a Family Unit, of the Existing or Proposed

Custodial Home or Homes.
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   The Father lives with his wife whom he testified to having a good

relationship with QXXX, and this union has a female child in common, 4 years

old, and Ms. Richmond has 2 minor children from a previous relationship, 2

males, 12 years old and 11 years old, who reside in the home. The Mother lives

with her husband, and their children, a male 5 years old and a younger female

child. The evidence established that QXXX spends quality time with the

maternal relatives, and he is very much bonded and attached to the step·father

 

and step-sibling, Gates, the Father does take occasional trips out of state to visit

the paternal relatives,

   QXXX is acclimated to living with his Mother and step-father, in their

home, and to spending time at his Father's and step-mother's home on alternate

weekends, He has his own bedroom at the custodial residence but has to share

bedroom accommodations with other individuals at Father's residence, There

was no testimony presented indicating Mother's intent to relocate from her

current residence, This factor focuses, not on the acceptability of the home (or

child care arrangements) but on stability, and permanence of the home, Ireland

v Smith, 451 Mich 457; 547 NW2d 686 (1996),

This factor favors the Mother.

F. The Moral Fitness of the Parties Involved

   The evidence established that the parties had a history of sexual deviance

throughout their marriage, The Mother testified she was sexually abused and

complied in fear of Domestic Violence, and that there was infidelity on the part of

Father during their marriage.

Testimony substantiated that the Father made disrespectful and inappropriate

remarks about the FAME Supervisor, Priscilla Wells, and placed them on the internet, while the case was pending before this Court, reports that the Father was recording the Court proceedings, on and off the record, and using foul, demeaning, and offensive comments made via email and/or text messaging to others and to Mr. Gates, Mother testified that the child has communicated to her that Father has made disparaging and

offensive remarks about her and other type of females to QXXX (or in front of him) that appear to have had a significant. negative impact on the child (caused him to cry).

   Mother admitted to driving the child to school while having open traffic·related

suspensions on her driving record . The Court had entered an Order requiring the Mother to clear all open suspensions and to obtain a valid Michigan operator's license by a specific date. Mother complied with the court order, providing evidence of her compliance at the custody hearing. Neither party admitted to having a criminal record.

This factor favors the Mother.

G. The Mental and Physical Health of the Parties Involved.

   Evidence was presented that Father did not comply with a course in anger

management, while the Mother testified that she sough mental health treatment

for anxiety and depression, yet has been unable to participate due to a lack of

insurance coverage; documentation was not presented.

   Both parties have made poor decisions as parents, with the Father

refusing to explore, or is unable to effectively address unresolved issues

between Mother and Father.

   Both parties are in good physical health. No other evidence was

presented that either party has any mental or physical health problems which

would interfere with his or her ability to parent.

This factor does not favor either party.

 

H. The Home, School, and Community Record of the Child

   The Court does not have a concern with regard to QXXX's academic

progress. QXXX is a very bright young man; he is thriving. His current teacher

testified that QXXX does not cause problems in the class and he does a good

job with his schoolwork. While his attendance record includes a number of

absences, they have not affected his performance in school and are not a

concern to the school. His homework is not a problem for her. The Mother

testified that she would provide further assistance (check his homework every

night in the one class (social studies) the child was having difficulty with. The

child's slight decline in academic performance for the current card marking period is attributed to the impact of court proceedings on him and the uncertainty he feels.

The Mother and Step-Father testified that they have QXXX enrolled in

extra-curricular and community activities, i.e. Karate classes. QXXX is a

friendly, high achieving , well-mannered child . He is comfortable and socially

well-adjusted at his present school.

This factor favors Mother.

I. The Reasonable Preference of the Child, if the Court Considers the

Child to be of Sufficient Age to Express Preference.


   The Court has interviewed the child on two separate occasions and finds

that he is of sufficient age to express a reasonable preference. The Court has

taken his reasonable preference into consideration and has given considerable

 

weight to said preference because of the child's demonstrated level of maturity.

Duperon v Duperon, 175 Mich App 77; 437 NW2d 318 (1989).

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.


   The parties have had difficulty getting along over the years and the Father

has battled the Mother for primary custody of QXXX at numerous times, since

the parties divorce, filling motions, complaints to DHS/CPS. Mr. Gates testified

that he generally deals with the Father rather than the Mother to lesson conflict.

   Mother has testified that Father intimidated her in the past and was very

controlling and non-cooperative. She testified that he thinks, "his way is the only way", and that he views QXXX as a "possession". someone he owns, versus viewing him as an individual in his own right having specific needs that he considers. Father stated during evidentiary proceedings that "the present

parenting time/custody order is "wonderful", he just wants compliance from

Mother.

This factor does not favor either party.

K. Domestic violence, regardless of whether the violence was directed

against or witnessed by the child
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Mother has made allegations that Father engaged in numerous acts of domestic violence over the years, including intimidation and physical acts of violence against her. The Mother gave testimony that the Father enters her home without permission or authorization. The Mother and Ms. Richmond had an incident of domestic dispute that resulted in the issuance of a Personal Protection Order (PPO).

 

There was testimony regarding a domestic incident which occurred at the

Mother's home that resulted in police being dispatched to the location.

This factor does not favor either party,

L. Any Other Factor Considered by the Court to be Relevant to a Particular Child Custody Dispute.
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The family evaluation reports and testimony of Ms. Angela Asteriou/Family

Counselor and Ms, Priscilla Wells/ FAME Supervisor were considered and

weighed, with Ms. Wells' testimony determined to be more credible. Ms. Wells

has years more experience than Ms, Asteriou dealing with difficult parties. Ms.

Wells spent considerable time with both parties, versus Ms. Asteriou's limited

time with Ms. Gates. Ms. Asteriou's evaluation focused on past behavior of the

Mother relative to QXXX's Medical treatment versus Ms. Wells testifying that

QXXX's medical health had improved in the past year, that QXXX was

appropriately adjusted to the mother's home and parenting time with the Father.

She assessed that the mother did not draw blood from her son, and testified that throughout the evaluation process Mr, Richmond attempted to control the

session inappropriately and exhibited lack of anger management. Ms. Wells

testified that the Father was invested in son and appears to view custody as a

possession, while refusing to build an appropriate parental relationship. Yet, she recommended more parenting time.

Father asserted the Fifth Amendment to the Court's inquiries regarding his

unauthorized recording of court's proceedings.

 

 

Conclusion

            After a considered evaluation of the best interest factors, this Court finds that

factors D, E, F, and H favor Mother and factor C favors Father. The remaining factors

either favor both parties equally or neither party.

            Based upon a review and analysis of the best interest factors, it is the opinion of

this Court that Father has not established by clear and convincing evidence that a

change in custody would be in the best interest of the minor child of the parties.

            IT IS THEREFORE ORDERED THAT the Defendant Father's Motion for Change

of Custody is DENIED.

            IT IS FURTHER ORDERED THAT as for parenting time, the parties will

cooperate with one another and that Father shall have liberal and reasonable parenting

time with QXXX, which includes, but is not limited to:

  1. Alternate weekends which may include Sunday overnight ifFather is able to

            transport QXXX to Palmer Park Academy on Monday mornings in a timely

fashion.

  1. One half of Christmas Break from School which shall include Christmas Day in

odd numbered years; Mother shall have one-half of Christmas Break from school which shall include Christmas Day in even numbered years.

  1. Father shall have one half of Easter/Winter Break from School which shall

include Easter Day in even numbered years; Mother shall have one-half of

Easter/Winter Break from school which shall include Easter Day in odd

numbered years; Parties shall alternate all other holidays.

           

 

 

  1. Father gets every Father's Day; Mother gets every Mother's Day; Parties shall

alternate QXXX's birthday with Father having parenting time on his birthday in

odd years and Mother having even years.

  1. Father may have two consecutive weeks in the months of July and August, so

long as the vacation time occurs during the period of time when QXXX is not in

summer school.

  1. Mother shall continue QXXX's tutoring at least one time per week and shall

enroll QXXX in summer school as recommended by his teachers,

  1. Father shall have daily telephone contact at 7:00 p.m.
  2. Pursuant to Referee Schewe's recommendation and this Court's Order, Father is

awarded two (2) make-up parenting time days to be exercised at his discretion,

  1. Therapy for both parents is mandated to assist with learning dispute resolution

skills,

IT IS FURTHERED ORDERED THAT this matter be referred to the Friend of the

Court for a recommendation regarding child support.