Anybody out there that can give me some advise, I would surely appreciate it. I just discovered the SPARC site and in reading it, came to realize that I could be a poster boy. However, a State Appeals Court has reversed in part and remanded the Curcuit Court Judge's decision, meaning another trial. They ruled that the Circuit Court Judge's custody decision was a palpable abuse of discretion. The Appeals Court claimed that "the Judge's factual finding that no established custodial environment existed, is against the great weight of the evidence". Moreover, and this is what I need help on, they (the three judge panel) agreed that the trial court commited a clear legal error when it relied on information that was not part of the record. This refers to the Judge, in his post-trial written opinion, citing local publications that recommend a stable environment for young children and that this cannot be attained by joint custody and the frequent changes involved with such a situation. My feeling has always been that IT IS BECAUSE OF THE YOUNG AGE OF THE CHILDREN that the bond be maintained to the greatest extent possible, meaning both the father and mother should be nuturing the children in eqaul parts. That is BIC! My question is: does anyone know of any reputable publications that would support this position? Perhaps they are under my nose on this site. I need some sort of expert opinion to counter the publications that the Circuit Court Judge relied on, and I was not provided an opportunity to challenge.
I have hoped and prayed and struggled mightily against an insidiously schemeing ex, who has taken advantage of my desire to keep conflict away from the children while trying to provoke it at every turn. Just this morning I recieved an e-mail claiming that "the girls sustained head injuries under your care this weekend". But I will not give up on our children. I am just so glad to have a second shot at this since I've been told it is so rare. Please help if you can.
'.......they (the three judge panel) agreed that the trial court commited a clear legal error when it relied on information that was not part of the record. This refers to the Judge, in his post-trial written opinion, citing local publications that recommend a stable environment for young children and that this cannot be attained by joint custody and the frequent changes involved with such a situation.'
You do NOT want any publication to support your views, because the appeals court said the trial judge overstepped his boundaries by doing the same. When this goes back to trial, any info the judge used in the prior hearing that came from unauthorized sources will be thrown out.
You might want to ask this of Socrateaser on his board. He's the resident legal guru........
If anyone knows what may be in the sparc archives, it is Brent, hopefully he will post.
Also, post your info on Soc board, he is legal here.
Good luck!
http://www.apa.org/journals/fam/press_releases/march_2002/fam16191.html
http://www.law.fsu.edu/journals/lawreview/issues/254/mcneely.html
http://www.law.fsu.edu/journals/lawreview/downloads/303/perrow.pdf
Add to that these:
http://www.custodyattorney.com/michaelarobbins/article4.htm
http://my.webmd.com/content/article/25/3606_1372?src=Inktomi&condition=News_and_Events
TM
Thanks, I and my kids appreciate your help
And thank you for the Michigan-specific help.
Its no problem at all. I'm glad you were granted a re-hearing. Your situation is very similar to mine. I just filed an appeal in the Fifth District in Florida. I'm representing myself pro se. The custody evaluator I had, recommened one overnight each week, and every other weekend Friday afternoon through Monday morning(5 of 14). The judge gave me a overnight on the Wednesdays which preced my weekend, and no overnight on Sunday of my weekend(3 of 14). He gave me no holidays, and one week in the summer. I would love to see a copy of your brief.
It appears that a reverse/remand is certainly called for, especially in light of the Holidays and one week in the summer. Gross abuse of judicial discretion that may work in your favor. The trial is at the end of June, send me another message around then and I'll get you my brief.
I only have 50 days from the notice of appeal (05/7/04) to submit the brief which is 06/25/04. I found a copy of a brief on the internet, so I can probably manage. If you were to get me a copy I swear it would not be shared with anyone. Is the apellate court's ruling available on the web? Let me ask you in a retrial(assuming I'm so fortunate), can new evidence be submitted along with new motions, or is it limited to what had been done at the time of the first trial? What if the lower trial judge refuses, do you have to appeal again? Good luck with your rehearing, let me know how it goes.
[email protected]
New evidence can be submitted as the Appeals Court ruling stated that up-to-date information can be considered. My understanding is that it is a whole new trial and my attorney feels that the lower court judge will be very mindful if not reverent of the higher courts ruling. The appeal itself can only consider trial tesimony and submitted exhibits. My appeals ruling is on the web: http://www.michbar.org/e-journal/092503.html, page down under Family Law. e-Journal number 20403. I can fax you my original brief for the appeal,
[email protected]. Good luck, be patient, and don't give up.