Children

What Is An Ex Parte Motion With Regard To Children?

August 19, 2022 By Laurie Schmitt

EX PARTE DEFINED

An ex parte motion is a motion filed with the court and signed by a judge before the other party is given notice of the motion, and before they are given an opportunity to be heard in front of the court.

WHAT YOU WILL BE REQUIRED TO PROVE AN EX PARTE MOTION

You must clearly show in your ex parte motion that the minor child will suffer irreparable injury, loss or damage will result from the delay required to effect notice.

CIRCUMSTANCES WHEN AN EX PARTE MOTION MAY BE APPROPRIATE

Some of the reasons an individual would file an ex parte motion in a family law case are as follows:

A parent has taken the children and is hiding them
A parent refuses to return the children per the terms of the custody/parenting time order
A parent has moved the children to another state without permission of the other parent or without obtaining a court order from the judge
A parent has recently become homeless and has no safe place to visit with the children

WHY EX PARTE MOTIONS FAIL

Judges vary greatly as to what they deem an emergency meriting the issuance of an ex parte order. With the same facts presented, some judges will issue an ex parte order, while others will not. Judges require compelling reasons to grant an ex parte order, as a request for an ex parte order is done without giving the other person notice of the motion, and done without a hearing.

Common reasons why ex parte motions fail:

The judge believes that the crisis has passed.
The moving party failed to provide enough facts in their ex parte motion to clearly define the emergency.
The circumstances do not meet the test of “the minor child will suffer irreparable injury, loss or damage will result from the delay required to effect notice”.

PARTIES MAY OBJECT TO AN EX PARTE ORDER

If you have been served with an ex parte order, you have the right to object. You may

file a written objection to an ex parte order or file a motion to modify or rescind the ex parte order. You must file the written objection or motion with the clerk of the court within 14 days after you were served with the ex parte order.

IF YOU DO NOT OBJECT TO THE EX PARTE ORDER

The ex parte order will automatically become a temporary order if you do not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed unless changed by a later court order. MCR 3.207(B).

WE CAN HELP!

We know your legal issues are unique and special. Call us, we will listen. To schedule a consultation or learn more about our services, contact Schmitt Law, PLLC online or call (616) 608-4634.

The Importance of Preserving a Relationship With Your Former Spouse When There Are Children

July 20, 2022 By Laurie Schmitt

Can preserving a relationship with your former spouse even be accomplished? Yes, it can, and successfully.

Why is it important to preserve a relationship with your former spouse? So that you can raise emotionally healthy children.

How do I go about preserving a relationship with someone I divorced? After all, we are divorced for a reason. The following are common sense ideas on how and why you should preserve your relationship with your former spouse:

Would you really speak to someone at your dentist’s office the way you speak to your former spouse? Act as if you are interacting with someone in a business relationship – be cordial and polite. I didn’t say it’s required to respect your former spouse. But you can interact with them in an appropriate way.
Don’t let your former spouse push your buttons, nor should you push theirs. It’s true that there is no better person to know how to get us angry in a second. However, it will serve no greater good in the long run to engage in negative back-and-forth behavior. It’s time to move from the past and make a paradigm shift…that we need to be good people to raise good children.
Be a good role model for your children…yes, they are watching and listening to both of you.
Why must everything a battle? Learn to compromise.
Don’t let significant others or spouses get in the way of maintaining a positive relationship with your former spouse. It will benefit your current relationship if you reduce the friction with your former spouse. Who wants to go on date night and listen to you spend the entire evening complaining about your former spouse.
Yes, there will be different rules and lifestyles at your former spouse’s home then you may have at your home. Accept that you do not have control or influence on how your former spouse lives, nor how they raise the children during their parenting time.
Try and respect the decisions your former spouse makes regarding the children during their parenting time. If it benefits the children, then support the decision.

To summarize, if you maintain a civil relationship with your former spouse, the children will be the winners. It’s important to look into the future and know that children grow up and become adults. If you create a healthy relationship with your former spouse now while the children are young, there is a greater likelihood that your children will want both of you at their extracurricular events, their high school graduation, their college graduation, and their wedding.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

We understand that filing for divorce can be an emotional and confusing experience. That’s why we are committed to providing personalized service to each client we represent, and will be with you through this difficult journey. At Schmitt Law, PLLC we encourage clients to take a more collaborative approach to divorce that promotes positive communication and cooperation. Through mediation or the collaborative divorce process, Laurie guides her clients through amicable divorce settlements so they can move forward with their life. To discuss your circumstances and legal options, contact Schmitt Law, PLLC at (616) 608-4634 to schedule a consultation. Or contact us online to arrange a consultation.

Child Custody – The Best Interest Factors

July 13, 2022 By Laurie Schmitt

Child custody and parenting time can be two of the most difficult issues to address for parents who are divorcing, or unmarried parents.

It’s important that parents understand that custody and parenting time decisions are determined by the judge. In making a ruling on custody and parenting time, the judge is concerned with what is in the best interest of the children, and will review the best interest factors.

The following are the best interest factors with sample questions under each factor. These questions will provide you with an idea of what the judge is reviewing under each factor.

1. The love, affection and other emotional ties existing between the parties involved and the child. (A)

To whom is the child more closely bonded?
When the child has a problem, to whom does the child speak?
When the child has a triumph, to whom does the child speak?
Who spends more hours per day with the child?
Who prepares the child’s meals?
Who has the ability to separate the child’s needs from their own and to empathize with the child?
To whom does the child openly show signs
How does the child relate to each parent?

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. (B)

Who bathes and dresses the child?
Who stays home from work when the child is sick?
Who takes responsibility for involvement in academic affairs?
Who takes responsibility for involvement in extracurricular activities?
Who disciplines the child?
Who uses preferable discipline techniques?
Who has preference because of the other’s verbal abuse, substance abuse, or arrest record?
Who has preference because of the ability to provide the child access to an?
extended family?
Who has been most consistent in the guidance of the child as it relates to their education and faith?

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. (C)

Who buys the groceries, plans and cooks the meals?
Who makes purchases for the child?
Who attends to special needs of the child?
Who has greater earning capacity?Who adjusts working hours based on the needs of the child?
Who has certainty of future income?
Who has the ability to provide insurance for the child?
Who attends classes for professional involvement?
Who has requisite knowledge to meet the needs of the child?
Who has kept up vaccinations and daily hygiene?
Who schedules and takes the child to medical appointments?
Who schedules and takes the child to dental appointments?
Who arranges for and supervises child care?

4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. (D)

Who has provided the greatest sense of stability of residence for the child?
Who is more likely to provide stability in the future?
Who can provide a safe environment?
Who can provide continuity of the child’s overall custodial environment?

5. The permanence, as a family unit, of the existing or proposed custodial home or homes. (E)

In whose custody will the family unit not be split?

6. The moral fitness of the parties involved. (F)

Here, the focus is not to punish a parent. Rather, it is on the effect the parties’ behavior has had, or will continue to have on the child, and how the individual functions as a parent. For example:
Who has priority as a result of the other party having an extramarital affair known by the children?
Has either party engaged in any of the following conduct:
Verbal abuse
Drinking problem
Poor driving record
Physical or sexual abuse of the child
Other illegal or offensive behaviors.

7. The mental and physical health of the parties involved. (G)

Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being?
Age of contestant compared to age of the child—would energies of the child overwhelm the contestant?

8. The home, school, and community record of the child. (H)

Who can provide leadership to attend school?
Who can provide leadership in extracurricular activity participation?
Who is actively involved in school conferences, transportation, and attendance at school events?
Who can more adequately assist reducing the necessity for other agency involvement (the juvenile court, the DHS), or if another agency is involved, who can cooperate more fully?
Who can more adequately assure the child’s access to friends and peers useful for the child’s development?
Who can more adequately plan and supervise the child’s undertaking of home responsibilities that are appropriate to the child’s age and circumstances?
Who takes responsibility for completion of school assignments?

9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (I)

This is relevant only if the child appears mature enough and capable of expressing with whom they prefer living, absent the product of manipulation or coercion.

10. 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. (J)

Who can best cooperate with an appropriate parenting time schedule by the other party? Who is least likely to disparage the other parent in the presence of the child based upon past performance?
Has either party actively sought to alienate the child from the other parent?

11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (K)

Have there been incidents of violence in the home by any party against any party? If so, has there been a police report, arrest or conviction? Has there been a pattern of violence whether reported or not reported?

12. Any other factor considered by the court to be relevant to a particular child (L)

Who can most likely address the special needs of the child?
Has either parent threatened to kidnap the child?
Does either parent spend excessive time traveling for the child?
Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return the child?
Who has responsibility for the actual and proposed child care arrangements?

CUSTODY ATTORNEY

At Schmitt Law, PLLC, we help parents work together to create a parenting plan that is in the best interests of your children. Through mediation, collaboration, or litigation, if necessary, our knowledgeable Michigan family law attorney will be your advocate and help you through this difficult time. To schedule a consultation or learn more about our services, contact us online or call (616) 608-4634.

Co-Parenting Mistakes To Avoid

May 2, 2022 By Laurie Schmitt

It may not be easy to maintain a working relationship with your ex. However, the well-being of your children depends on it. The following are commonsense tips for co-parenting with your ex.

USING THE CHILDREN AS MESSENGERS: Your communication with your ex should be directly to your ex, not through the children. When you use your children as messengers, you put them in the middle of your adult war. Parents should never involve their children in adult matters and discussions. Let your children be children and let them love you both.

REFUSING TO RESPOND: Communication is key to a successful co-parenting relationship.

If your ex-contacts you regarding a legitimate co-parenting concern, respond within a timely manner. If you want to maintain joint legal custody, you need to be an effective parent. You need to work with your ex and respond appropriately. Your failure to respond can be read as your disinterest in what happens with the children. Your unwillingness to work with your ex can be used against you, and the joint legal status can be reviewed. Use your joint legal status wisely or lose it!

REFUSING TO MAKE DECISIONS WITH YOUR EX: Part of co-parenting means assisting in important decisions. Your ex-contacts you regarding a co-parenting decision. You do respond but refuse to commit. A non-committal response is nothing more than failing to respond disguised as cooperation. Once again, if you want to maintain joint legal custody, then participate.

FAILING TO TAKE THE CHILDREN TO EXTRA-CURRICULAR EVENTS ON YOUR PARENTING TIME: If the children have routinely participated in extracurricular events, both parents should honor the children’s involvement in these events. This means that when they are with you, take them to their games and practices. Failure to allow your children to attend extra-curricular events only leads to disappointed children.

FAILING TO FOLLOW THE PARENTING TIME ORDER: Your parenting time order defines the terms of your parenting time. Follow it or suffer the consequences of the court!

BEING CONSISTENTLY LATE FOR EXCHANGE OF THE CHILDREN: Your parenting time order clearly defines what time you are to be at the exchange of the children. Prioritize your children and be at exchanges, on time!

FIGHTING AT EXCHANGES OF THE CHILDREN: What needs to be said about bad behavior at exchanges of your children? Fighting, screaming, yelling, swearing, and physical altercations have no place during exchanges. Your children are witnesses and innocent victims to your inappropriate behavior. They learn from your actions. Be adults, exchange the children, and be on your way.

In summary, if you place the needs of your children first, it’s not hard to make good decisions for the benefit of your children. If you share joint legal custody, you have equal rights in making major decisions for your children. If you want to maintain joint legal custody, put aside your frustration and anger with your ex, and participate in the decision-making process.

CUSTODY ATTORNEY

How To Prepare For a Divorce Mediation

April 29, 2022 By Laurie Schmitt

Ending a marriage can be incredibly difficult. Unfortunately, many people believe that litigation is the only way to end their marriage. However, there is an alternative to resolve the outstanding issues and complete your divorce and that is through Mediation.

WHAT IS MEDIATION?

In Mediation, the parties and their attorneys meet with a neutral third party who will assist you in coming to an agreement that is fair and equitable.

WHY DO I WANT TO PARTICIPATE IN MEDIATION?

Mediation offers a less stressful option for couples in that the mediation process offers the couple the ability to maintain total control over the outcome of their case. Additionally, Mediation can save you both time and money verses litigating your case.

WHAT DO I NEED TO DO BEFORE MEDIATION?

Before you attend Mediation, it is important for you and your attorney to prepare. It is also imperative that both you and your attorney have a shared understanding of what your desired outcome is at mediation. At Schmitt Law, PLLC, we sit down with our clients prior to mediation and discuss our strategy. This allows us to be “on the same page” with the client when we attend Mediation.

In order to have a successful mediation, the following information must be compiled prior to attending a divorce Mediation:

Statements for all of your bank accounts.
A list of your vehicles, with a Kelly Blue Book value on each vehicle.
A list of your recreational vehicles (boats, campers, snowmobiles, etc.), with values for each.
Copies of all appraisals for each real property. If you have not had your real property appraised, have it appraised prior to mediation.
Statements for life insurance policies, and their cash value.Statements for each of your retirement accounts (401k’s, IRA’s, 403B’s, pensions, profit sharing, etc.).
Statements for each of your investments (stocks, bonds, mutual funds, etc.).
Statements for all of your credit cards, and documents for all other indebtedness.

If you have children under 18:

Verification of yearly daycare costs.
Cost of employer provided health insurance with breakdown for costs for self and cost for self with family.
Tuition statements.
Prior to mediation discuss with your attorney
- What type of legal custody you are seeking.
- What type of physical custody you are seeking.
- What parenting time schedule you are seeking.
- What holiday schedule you are seeking.
- What type of telephone contact you are seeking.
- Who will provide transportation for pick up and return of the children.
- Who will claim the child as a dependent under City, State and Federal Taxes.

Make sure to provide copies of the documents to your attorney, to ensure they have them available at mediation. The preparation you and your attorney do now will hopefully result in a fair and equitable agreement at mediation (and completion of your divorce).

Experienced Divorce Attorney

We understand that filing for divorce can be an emotional and confusing experience. That is why we are committed to providing personalized service to each client we represent, and will be with you through this difficult journey. We are prepared to guide you in all aspects of your case.

To discuss your circumstances and legal options, contact Schmitt Law, PLLC online or call (616) 310-4975 to schedule a consultation.

What Is a Judgment Of Divorce

April 6, 2022 By Laurie Schmitt

A Judgment of Divorce is the legal document that finalizes the divorce process. It is the written court order that formally dissolves the marriage.

WHAT DOES A JUDGMENT OF DIVORCE CONTAIN?

The Judgment of Divorce contains the terms of the judge’s ruling after trial on all aspects of the divorce, or the specific terms of the of the parties’ agreement. A Judgment of Divorce contains pertinent information as follows:

Divorces with minor children:

Custody
Parenting time
Holiday parenting time
Telephone contact
Extracurricular activities
Any miscellaneous provisions specific to the parties
Child support
Health insurance
Residency (100 mile) Rule
Change of Domicile Rule
Hague Convention
Income Tax Exemptions

All divorces (with or without minor children)

Vehicles
Personal property
Bank accounts
Retirement accounts
Real property
Debts
Restoration of maiden name
Other statutory provisions

WHAT IF THE TERMS OF THE JUDGMENT OF DIVORCE ARE NOT FOLLOWED?

A Judgment of Divorce is a court order and therefore both parties are bound to its terms and required to follow its provisions. Failure to follow the Judgment of Divorce may lead to court-imposed sanctions.

WHAT IF THE JUDGMENT OF DIVORCE NEEDS TO BE MODIFIED?

A modification can be achieved two ways.

The parties come to an agreement, that agreement is reduced to writing through a stipulated order, and presented to the judge for signature.
One of the parties files a motion, a hearing is set, and the judge makes a ruling on the matter. There are times when the issue requires an additional hearing called an evidentiary hearing. If the judge believes an evidentiary hearing is required, a date will be set by the court wherein testimony will be taken, and the judge will rule on the matter.

Experienced Divorce Attorney

If you need to know more about a Michigan divorce, including how to file for a divorce, contact an experienced attorney, Laurie Schmitt at Schmitt Law, PLLC. We look forward to speaking with you and being your advocate during this crucial time in reframing your life. Call Schmitt Law, PLLC at (616) 310-4975 or contact us online to arrange a consultation.

What Are The Rights of Unmarried Parents?

March 14, 2022 By Laurie Schmitt

Common concerns for unmarried parents are custody, parenting time, and child support. If parents are not married, how do they go about establishing custody, parenting time, and child support? These issues are often complicated. But when parents are unmarried, establishing custody, parenting time, and child support can be even more problematic.

The first thing to know is that when a child is born out of wedlock, sole legal custody and sole physical custody is automatically awarded to the mother. This means the mother has complete authority to make all decisions regarding the child to include where the child will live, where the child will go to school, health care decisions, and extracurricular decisions.

The award of custody to the mother does not change until the father of the child takes action to establish his rights. In order for the father to establish custody, parenting time, and child support, parentage must be established.

Parentage can be established through an affidavit of parentage. This may be signed by the parties at the time of birth of the child, or any time afterwards.

If an affidavit of parentage was not signed, then the father must establish his rights to the child through a DNA test. Either party may file a petition to establish paternity (mother of child, someone identified as the father, or someone who believes he is the father).

The court then grants either party an order requiring the father, mother, and minor child to complete a DNA test. After a valid DNA test has been completed, and the results deem a specific man to the father, then the father can request the court to establish his rights to the child (custody, parenting time, and child support).

If the father does not believe a paternity test is necessary, then he must seek to have the court enter an order of filiation. An order of filiation is a court order declaring a man to be the biological father of a child born outside a marriage. Once an order of filiation has been entered by the court, the court now has jurisdiction to decide the matters of custody, parenting time, and child support on behalf of the father.

It is important to note that once the father is legally deemed the father of the child, he will now be financially responsible to provide for the child in the form of child support.

As the father of a child born outside of a marriage, it is critical to take action immediately. Each passing day means you and your child will not receive time together to establish an important parent-child bond. As the mother of a child born outside of marriage, each passing day means you and your child will not receive the financial support you deserve.

KNOW YOUR RIGHTS – WE CAN HELP

At Schmitt Law, PLLC, we help parents work together to create a parenting plan that is in the best interests of your children. Through mediation, collaboration, or litigation, if necessary, our knowledgeable Michigan family law attorney will be your advocate and help you through this difficult time. We know your legal issues are unique and special. Call us, we will listen. To schedule a consultation or learn more about our services, contact Schmitt Law, PLLC online or call (616) 310-4975.

The Do’s and Don’ts of Holiday Parenting Time

October 18, 2021 By Laurie Schmitt

Once again, the holidays are fast approaching. Children of separated or divorced families often find themselves in a difficult position…. torn with loyalties. Children grow up fast. Divorce can make the holidays difficult for both parents and children. Parents should shift their focus on building great holiday memories for the children to look back on.

Do: encourage your children to have a wonderful time at the other parent’s home
Don’t: make your children feel bad about wanting to spend time with the other parent during the holidays

Do: provide your children the opportunity to speak to the other parent (text, phone, skype) if it is geographically impossible for the children to spend time with the other parent
Don’t: grill your children when they return home from the other parent’s home

Do: give your children the time to spend with their siblings and step-siblings
Don’t: try to compete with the other parent for the children’s attention

Do: do allow the children to call their grandparents (from the other parent)
Don’t: make holiday gift giving a competition

Schedule a consultation

Do: allow the children to take their gifts to the other parent’s home
Don’t: don’t purchase the children’s gifts that you know the other parent would be extremely opposed to

Do: allow the children to come up with new holiday traditions
Don’t: dwell on old traditions (“when we were a happy family”)

Do: allow the children to attend school and church holiday functions, even when they fall on your parenting time
Don’t: ask the children to choose who had the better holiday, it’s not a competition

Do: understand that your children may be struggling with their loyalties and validate their feelings
Don’t: introduce new significant others to the children. The holidays are not the appropriate time to introduce the children to your new significant others as the focus should be on their time with you.

Do: be respectful with the other parent’s holiday time by exchanging the children on time and at the designated location
Don’t: purchase the children a gift that will be a financial burden to the other parent (unless you have discussed it with the other parent and agreed on the purchase)

Do: respect the other parent’s religious observations, or lack thereof, when you are talking to the children – if you can’t say anything nice, say nothing at all!
Don’t: over plan every minute of your holiday parenting time, to include spending the entire holiday parenting time traveling to see extended family

Do: understand that your children are older than you think they are, have friends, and are growing more independent…they may want to spend time with their friends over their holiday breaks
Don’t: argue with the other parent about holiday plans in front of the children

For assistance with your divorce and to develop a fair and equitable plan for holiday parenting time, contact me, Laurie Schmitt, at Schmitt Law, PLLC. I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Children

Footer