Recommendation by Friend of the Court for Kids to Live with Dad

My question involves a child custody case from the State of: Michigan

My boyfriend and his soon to be ex wife attended a custody investigation and Friend of the Court spoke with both of them plus his kids. We received the report yesterday and because of the Mother's poor financial choices and the fact that she lost her house to foreclosure (and many other major issues with the Mother), FOC recommended custody go to my boyfriend with visitation given to the Mother. The Mother got the report and threw a fit and went in to appeal it. We are really nervous now because we want the kids with us because we can give them a more stable environment. Is the judge likely to go with the recommendation?

The judge's decision can be influenced by the referee's recommendation, but is made independently of that recommendation.

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Quoting jackandstacey

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Is the judge likely to go with the recommendation?

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many judges will rubber stamp those kinds of things. Who was the primary care taker of the children?

Many judges will also simply ignore these recommendations if they go against the grain of what the judge was already inclined to do.

FOC minimum qualifications are pretty low, requiring little more than a law degree and 3 years practicing family law. http://www.ocba.org/resource/attach/...URTREFEREE.pdf

Whatever weight a court gives to a recommendation often boils down to a judges personal opinion of the referee.

Mom is within her rights to object to the recommendation, and must do so if she has issue with it. If mom is still the custodial parent, the judge will likely not adopt the recommendation without reviewing that and whatever else it wants to consider. One thing a judge may differ on is what weight, if any at all, to give to mom's financial issues as cause to change custody.

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Quoting tex11

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If mom is still the custodial parent, the judge will likely not adopt the recommendation

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I agree, that is why I asked.

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Quoting jackandstacey

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My question involves a child custody case from the State of: Michigan

My boyfriend and his soon to be ex wife attended a custody investigation and Friend of the Court spoke with both of them plus his kids. We received the report yesterday and because of the Mother's poor financial choices and the fact that she lost her house to foreclosure (and many other major issues with the Mother), FOC recommended custody go to my boyfriend with visitation given to the Mother. The Mother got the report and threw a fit and went in to appeal it. We are really nervous now because we want the kids with us because we can give them a more stable environment. Is the judge likely to go with the recommendation?

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You're dating and/or living with a married man; if I were you, I wouldn't be talking about Mom's stability too much.

If her financial status is the main factor, she should appeal it.

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Quoting tex11

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Many judges will also simply ignore these recommendations if they go against the grain of what the judge was already inclined to do.

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In Michigan, referees work very closely with their assigned family court judges. It's not a situation of some random person the judge may not like and feels free to ignore. It's almost always a close, cooperative relationship.

I agree on the working relationship between judge and referee.

But at the end of the day the judge has without exception the last word on whether to accept a recommendation or not... of which there is no room for a referee to question. A referees purpose is as a fact finder and to help cull the wheat from the chaff, especially in cases where either party is unrepresented. In cut and dried cases where there is little room for dispute, a neatly packaged recommendation and proposed order makes it easier for a judge to quickly dispose the case and move on to other cases.

Though in a contested custody modification, with referee recommendations to change custody based at least in part on the custodial parents financial difficulties, and the referees findings are challenged, final disposition may likely require a trial on the merits. However short or long that may be.

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Quoting Dogmatique

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You're dating and/or living with a married man; if I were you, I wouldn't be talking about Mom's stability too much.

If her financial status is the main factor, she should appeal it.

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I can't agree more because this speaks DIRECTLY to dad's decision making skills. Poor financial choices shouldn't be a factor, however, having a married man living with another woman in the presence of the children...

poor life choices.

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Quoting tex11

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Though in a contested custody modification, with referee recommendations to change custody based at least in part on the custodial parents financial difficulties

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If mom currently is the CP and her resources however meager combined with child support can provide a roof over the children's head, clothing and adequate food, then it is highly unlikely the FOC's recommendation would be accepted by a judge unless there is more to it than the girlfriend is stating. If there is not more to it and the judge accept the FOC's recommendation then an appeal is warranted.

A foreclosure is not grounds for taking away custody unless it leaves mom homeless with no ability to put a roof over her kid's head.

Hang on. I thought it was considered a violation of Mom's civil rights for custody decisions to be made on a financial basis. That who could give the kids the most "stuff" was right out. That even homeless folk could retain custody of their children.

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Quoting cbg

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Hang on. I thought it was considered a violation of Mom's civil rights for custody decisions to be made on a financial basis.

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If you are talking about the Troxel case, the issue is fundamental rights, not civil rights. But that case was b/t a parent and a non-parent so it isn't an appropriate case to cite when there is a dispute b/t 2 parents.

In general though, courts don't take away custody from the parent who has been the primary care giver unless there is abuse or neglect and as long as the CP can provide shelter, clothing and adequate food, that is not neglect.

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Quoting cbg

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That even homeless folk could retain custody of their children.

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I think you are confusing the issue of whether the state can take the children away from a homeless parent and put the children in foster care with a dispute b/t 2 parents over custody. The former is a fundamental rights issue the latter is a best interest of the child issue. However, the best interest of the child standard is heavily weighted towards maintaining the status quo when it comes to who is the primary care giver provided the child is not abused or neglected by staying with the primary care giver.

I wasn't talking about Troxel specifically and I hadn't seen your post immediately above mine when I posted. Wasn't in response to you. Sorry for confusion.

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Quoting cbg

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I wasn't talking about Troxel specifically and I hadn't seen your post immediately above mine when I posted. Wasn't in response to you. Sorry for confusion.

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Ok but custody disputes b/t 2 parents do not invoke civil rights issues. Civil rights have to do with discrimination against protected classes. I suppose if the FOC's recommendation was based on the race of the parents then it would invoke a civil rights issues.

Custody disputes b/t 2 parents are determined under a best interest of the child standard.

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Quoting JulesJam

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If there is not more to it and the judge accept the FOC's recommendation then an appeal is warranted.

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If neither parent objects to the FOC recommendation then, absent very unusual circumstances, it would be accepted by the court. If either parent makes a timely request for a de novo review, it cannot be accepted by the court as the court is required to make its own determination following de novo review. See MCL 552.507.

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Quoting JulesJam

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A foreclosure is not grounds for taking away custody unless it leaves mom homeless with no ability to put a roof over her kid's head.

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The question of whether a foreclosure occurred does not of itself establish a parent's instability, but with other facts it could very well justify a finding that the parent is not able to offer a stable environment for the children. Some people rent an apartment after foreclosure, or move into an appropriate space in a relative's house, while they get back on their feet. Others may not be able to find a suitable home, or may provide little to no stability as they hop from temporary home to temporary home or eviction to eviction.

Odds are, the referee's decision goes through the best interest factors and makes specific findings for each factor. We're only hearing about circumstances that could potentially affect the analysis of one, maybe two, of the factors (c, e).

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Quoting cbg

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Hang on. I thought it was considered a violation of Mom's civil rights for custody decisions to be made on a financial basis. That who could give the kids the most "stuff" was right out. That even homeless folk could retain custody of their children.

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When a custodial parent has less income than the non-custodial parent, the usual remedy is to have the non-custodial parent pay child support. The fact that, even with child support, the custodial parent is not as well off as the non-custodial parent would not be a basis to change custody -- but it might justify increasing child support.

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Quoting JulesJam

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In general though, courts don't take away custody from the parent who has been the primary care giver unless there is abuse or neglect and as long as the CP can provide shelter, clothing and adequate food, that is not neglect.

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It's not yet clear in this case whether we're discussing a modification of custody or an initial custody decision.

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Quoting JulesJam

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I think you are confusing the issue of whether the state can take the children away from a homeless parent and put the children in foster care with a dispute b/t 2 parents over custody.

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Troxel has nothing to do with economic circumstances or with protective services actions. However, it is more than safe to say that if a parent is so unable to properly care for her children that they're being removed from her home by protective services, a financially stable and otherwise appropriate non-custodial parent would be able to use those circumstances to justify a review of the prior custody order.

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Quoting JulesJam

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Ok but custody disputes b/t 2 parents do not invoke civil rights issues.

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They don't always involve civil rights issues, but they can -- such as when parents disagree about the children's religious upbringing during custody proceedings. A court has to tread carefully if it becomes necessary to resolve such a dispute following a contested proceeding.

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Quoting Mr. Knowitall

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It's not yet clear in this case whether we're discussing a modification of custody or an initial custody decision.

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I believe this is an initial custody decision as the 2 parents are still married to each other so perhaps there was a temporary order as part of the divorce but no final order yet it seems.

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Quoting Mr. Knowitall

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Troxel has nothing to do with economic circumstances or with protective services actions. However, it is more than safe to say that if a parent is so unable to properly care for her children that they're being removed from her home by protective services, a financially stable and otherwise appropriate non-custodial parent would be able to use those circumstances to justify a review of the prior custody order.

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Troxel's holding is limited to the case of a non-parent seeking visitation rights against the parent's wishes. In that factual situation, i.e., non-parent vs. parent, the fundamental rights of the parents are at issue. There is tons of dicta in Troxel though that people like to quote as if it were the holding.

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Quoting Mr. Knowitall

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They don't always involve civil rights issues, but they can -- such as when parents disagree about the children's religious upbringing during custody proceedings. A court has to tread carefully if it becomes necessary to resolve such a dispute following a contested proceeding.

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This is consistent with what I said - civil rights issues have to do with protected classes and if the FOC wants to start deciding issues on the basis of race, religion or any other protected class, then yes, civil rights issues would come into play. But being poor is not a protected class.

Generally the courts don't side with one parent or the other when it comes to religion unless there has been a prior agreement b/t the parents that one of the parents is trying to enforce, i.e., they agreed as part of the divorce that the child would be raised jewish and now one parent doesn't want to honor the agreement.

Generally, if parents have joint legal custody, each parent can teach the child whatever religious ideals they want during their parental time and cannot stop the other parent from doing the same. This may be very confusing to the child but no court is going to be able to stop that and if they did, then the civil rights of the parent being ruled against would be at issue.

Why on earth has this become a discussion about Troxel?

FOCUS.

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Quoting Dogmatique

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Why on earth has this become a discussion about Troxel?

FOCUS.

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Because civil rights were erroneously brought into the discussion.

READ.

Mea culpa. I said civil when I should have said constitutional.

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Quoting Dogmatique

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Why on earth has this become a discussion about Troxel?

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Because Troxel was erroneously brought into the discussion.