Preparing to Motion for Change of Residence

[wendy11068]

State is MI, all parties reside in MI.

Ex and I have joint legal and joint physical custody of the minor children with ex having primary residence.  Ex is not providing a fit and proper environment for the children to reside in.  Ex also does not follow orders from the pediatrician regarding the children's health.  Ex does not spend CS on the children and continually asks me for money above and beyond the CS he receives "for the benefit of the children".

Also, ex has a "revolving door" of girlfriends and broken relationships lasting two months or less where the children were subject to these multiple partners.  Ex has taken the children to the doctors when absolutely necessary and unavoidable and has listed me as having financial responsibility but has used my name when married to him and his address and when the bills come they are sent back until they go into collections and then the collectors find me, much to my surprise. Ex was also in court yesterday regarding a fraudulent statement claiming that he had a discount to purchase his new truck that he did not have and could not provide.  Ex does not hold a job for more than 4-6 months during a 12 month period and is once again unemployed (he lives with mom and always has).

DH lost his driver license and is eligible now for reinstatement of the license but we have not had the money for the costs and fees to reinstate and won't until the fall of this year.

That being said, I am preparing to file the aforementioned motion because I believe that ex is not capable of providing a fit and proper primary residence.  I have written evidence of the majority of the claims I will make but I also have some concerns as follows:

1.  Will anything that ex has said directly to me or admitted directly to me be hearsay and therefore inadmissible?
2.   Should I wait until after DH's license is reinstated to file so that the issue is a moot point during the FOC investigation?
3.  Is ex's unstable employment history and apparent unwillingness to assist in supporting his children a valid argument?
4.  How can I best use the "revolving relationship door"?
5.  Can I follow the "best interests" test when writing the motion?
6.  Should I provide examples of my claims within the motion?  (i.e.  Plaintiff willfully and egregious refuses to support his children.  Plaintiff cannot remain employed for more than 4-6 months in any 12 month period and his behavior and attitude are the main causes for termination.)

I am pro se as ex will be and I don't want to screw this up because I don't think you get another chance if you upset the judge!

[socrateaser]

>concerns as follows:
>
>1.  Will anything that ex has said directly to me or admitted
>directly to me be hearsay and therefore inadmissible?

Statement by opposing party offered against that party is nonhearsay. It's called an admission, and the other party has the opportunity to explain, so it comes into evidence subject to the explanation.

>2.   Should I wait until after DH's license is reinstated to
>file so that the issue is a moot point during the FOC
>investigation?

No opinion. Weigh child's best interests, reason for suspension and how that makes your case look vs. not having it as an issue.

>3.  Is ex's unstable employment history and apparent
>unwillingness to assist in supporting his children a valid
>argument?

No. Custody is about who the better day to day caretaker is, not about who is the better financial provider.

>4.  How can I best use the "revolving relationship door"?

As evidence of an environment that puts the child in distress, due to the confusion of new partners. For this, you will need a psycholgist to assess whether the child is actually suffering any distress, and you can't get that until you prove changed circumstances. So, absent some existing proof of how the parent's unstable relationship pattern is adversely affecting the child, this will be deemed irrelevant.

It's a catch-22, because you need the court to order the parent evaluated, in order to get the evidence that you need to prove that the other parent should be evaluated. But, that's how it is.

>5.  Can I follow the "best interests" test when writing the
>motion?

Sure. Just tell me what the test is, and then we'll both know. LOL! "best interests," is totally subjective to the judge. In addition, you need SUBSTANTIAL evidence that the child's best interests are adversely affected by the other parent's behavior. "Substantial" means clear and convincing in legal terms and that means that it must be way more than just tending to prove that you're right and the other parent is wrong. The evidence must be...well..."clear" and "convincing." Hard to prove that level of bad acting, unless the other parent's been convicted of a crime or institutionalized/rehab, etc., or something like that.

>6.  Should I provide examples of my claims within the motion?
>(i.e.  Plaintiff willfully and egregious refuses to support
>his children.  Plaintiff cannot remain employed for more than
>4-6 months in any 12 month period and his behavior and
>attitude are the main causes for termination.)

You need independent, objective evidence. Just saying that the other parent can or can't do something is insufficient. You need records from third parties. And, if it's based on employment issues, then you're wasting your time, because they're not relevant to a custody action, unless you can show that the instability is actually causing the child distress, because it is evidence of the mother's mental disturbance. (good luck with that one).

>I am pro se as ex will be and I don't want to screw this up
>because I don't think you get another chance if you upset the
>judge!

Good plan. I don't know what your evidence is, but if it's what you're presenting here, then you're wasting your time, because you don't have a case.

[wendy11068]

Sorry Soc...didn't want to write a novel but I guess I really didn't include enough information.

I am the mom in this case.  It's dad who has primary residence.

What happens in the county I am in, in the State of Michigan, is that one of us begins by filing a motion for the change.  The matter will be heard by a Friend of the Court Referee and at that time it will be decided if the motion has merit or not.  If it does, then it will be sent to a FOC Investigator who will recommend based on evaluating both of us against the Best Interests of the Child test (12 points that deal with the parent most likely to encourage a relationship, the parent who has the most willingness and capacity to support the child, the parent who will encourage the child's religious education/preference, the parent who will be the most likely to insure education and medical welfare, etc.).  The Recommendation will be reviewed by the judge who will make the final decision.

I do have evidence such as medical records, letters from the teachers and two former psychologists, school records, receipts, letters from ex.  I have witnesses such as the teachers, the current psychologist for my older son, pediatrician, other parents who have witnessed behaviors that do not meet the best interest standards, and so on.

During our CS review last year, the judge was very angry that my ex "willfully and with concious disregard for the welfare of the minor children" chooses not to work and sees no reason that my ex cannot and will not participate in the support of the children.

My DH got two DUI in two weeks, 6 years ago.  He was eligible for reinstatement 18 months ago however there were no funds to accomplish that task and I was not thrilled with the idea of taking on the Driver License Appeal Division without an atty.

Michigan has amended the guidelines for change of custody to state that it must be change in circumstances or "proper cause".  I have not found a definition of what is meant by "proper cause" though.

All of that being added....

1.  Is there a case now?
2.  If there is a case, should we clean up the DH mess before filing?
3.  If there is a case and I write the motion, how detailed should the motion be?
4.  If there is a case, I am taking the right stance by wanting to change primary residence rather than changing the existing joint physical/joint legal custody?
5.  What might be the definition of  "proper cause"?

Thanks Soc!  This is WAY too important to just play around with.

[socrateaser]

>1.  Is there a case now?

There is almost certainly a definition of "proper cause" in the appellate case law, and you had better find out exactly what it is, because that is the burden of proof that you must carry and without it you cannot possibly know if you have a case.

Go to //www.versuslaw.com, sign up for a month and search the MI case files until you get an opinion from the State Supreme Court defining the standard.

>2.  If there is a case, should we clean up the DH mess before
>filing?

Irrelevant.

>3.  If there is a case and I write the motion, how detailed
>should the motion be?

Very. You probably want to emphasize precisely how your evidence matches with the 12 factors that you say must be considered by the court.

>4.  If there is a case, I am taking the right stance by
>wanting to change primary residence rather than changing the
>existing joint physical/joint legal custody?

No Clue. Ask for the world. Take what you can get.

>5.  What might be the definition of  "proper cause"?

That "is" the question.

[wendy11068]

Just one more thing for now...

My state appellate and supreme court opinions are available online.  

1.  Do I still need versuslaw.com?

[socrateaser]

>Just one more thing for now...
>
>My state appellate and supreme court opinions are available
>online.  
>
>1.  Do I still need versuslaw.com?

Depends. Free case law research rarely goes back far enough to be comprehensive. If this "proper purpose," rationale was authored earlier than the free databases history, then you'll never know what you may have missed.

I don't work for versuslaw, but we're talking about $13.95 for a month. This is chump change and it will let you search for other things related to your case. Frankly, online case law research is the cheapest legal insurance money can buy.

[wendy11068]

Thank you Soc.  I trust what you say and will do what you recommend.

[wendy11068]

Just one more thing for now...

My state appellate and supreme court opinions are available online.  

1.  Do I still need versuslaw.com?

[socrateaser]

>Just one more thing for now...
>
>My state appellate and supreme court opinions are available
>online.  
>
>1.  Do I still need versuslaw.com?

Depends. Free case law research rarely goes back far enough to be comprehensive. If this "proper purpose," rationale was authored earlier than the free databases history, then you'll never know what you may have missed.

I don't work for versuslaw, but we're talking about $13.95 for a month. This is chump change and it will let you search for other things related to your case. Frankly, online case law research is the cheapest legal insurance money can buy.

[wendy11068]

Thank you Soc.  I trust what you say and will do what you recommend.