|
|
|
"Best Interest Factors," Factor (F) |
|
||||||||||||||||||||||||||||
|
|
( F ) The moral fitness of the parties involved.
|
|
|
|
|
|
(A) Love, affection, other emotional ties (B) Capacity to give love, affection, guidance (C) Capacity of parties to provide for the child (G) Mental and physical health (H) Home, school, and community record (I) Reasonable preference of the child |
|
|
|
|
|
This information comes directly from the Washtenaw County website which is "public domain." Except for formatting, no changes have been made to this material. It is included herein with the specific knowledge of the County webmaster. Further, as a Washtenaw County Circuit Court writing, this is neither binding precedent nor governing dictate even on other judges in this specific county. Footnote 1: Written by The Honorable Judge John N. Kirkendall, Family Division, Washtenaw County Trial Court, Ann Arbor, Michigan. The author gratefully acknowledges contributions from the following lawyers and judges: Craig S. Ross, Esq., Washtenaw County Friend of the Court's Office; Norman N. Robbins, Esq., domestic relations practitioner, author and lecturer; Hon. Bruce A. Newman, Genesee County Probate Judge; Hon. Joan E. Young, Oakland County Circuit Judge; and Monika H. Sacks, domestic relations practitioner, author and lecturer. They have reviewed the chart and suggested additions and improvements. I thank Stuart D. Lurie, law clerk, who has helped revise the chart since its first publication. Errors are mine. The chart should be viewed as "evolving", not "finished." Therefore, the reader's suggestions and comments will be helpful. Footnote 12: Feldman v Feldman, 55 Mich. App. 147 (1974), custody granted to wife who had engaged in two "adulterous affairs" but who was a "good mother and was in charge of sons' religious education." Moral fitness is only one factor and on balance it is in best interests of children for her to have custody. (In this case husband drank toilet bowl cleaner in an effort to commit suicide.) Mother's act of unfaithfulness or of adultery does not necessarily preclude her from being awarded custody of her children. Bednarski v Bednarski, 141 Mich. App. 15 (1985). Gulyas v Gulyas, 75 Mich. App. 138 (1977): Hon. Dorothy Riley in her dissent states, parenthetically, that this factor should not be used by a trial judge to impose work ethic notions. Fletcher v Fletcher, 200 Mich. App. 505 (1993) states that the court may not use marital affairs of which the child has no knowledge against such parent with respect to morality. The trial judge used morality test wrongfully and in addition let it influence the court in balancing the other factors as well. On appeal, (Fletcher v Fletcher, 447 Mich. 871 (1994), the Supreme Court did not disturb this ruling, but added the following: "[moral fitness], like all the other statutory factors, relates to a person's fitness as a parent. To evaluate parental fitness, courts must look to the parent child relationship and the effect that the conduct at issue will have on that relationship. Thus, the question under factor f is not "who is the morally superior adult"; the question concerns the parties' relatives fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct. We hold that in making that finding, questionable conduct is relevant to factor f only if is a type of conduct that necessarily has a significant influence on how one will function as a parent." In making that determination, the court refers to this article as it originally appeared in 21 Mich Fam LJ 15 (Oct, 1994) in footnote 6. The Supreme Court states this article "provides a list of conduct that, although not exhaustive, represents the type of morally questionable conduct, relevant to one's moral fitness as a parent. It includes: verbal abuse, drinking problems, driving record, physical or sexual abuse of children, and other illegal or offensive behaviors. While the list also includes consideration of 'extra-martial conduct known by the children,' we believe that today's decision sufficiently addresses the relevance of that fact." Bowers v Bowers, 198 Mich. App. 320 (1993) shows that a variety of subjects can be used under this category, specifically, the court may consider a drinking problem, arrest record, living with child's baby sitter, allowing son to drink from his beer, verbal abuse, and lying about past alcohol record. Helms v Helms, 185 Mich. App. 680 (1990), allows consideration of a circumstance where plaintiff is pregnant, unmarried, and living with her boyfriend, since the case is not one of unmarried cohabitation "standing alone"; plaintiff's pregnancy is an aggravating factor. Since moral fitness was not the sole basis for the decision, it was proper to make a custody award taking this factor into account as one of the relevant factors. Snyder v Snyder, 170 Mich. App. 801 (1988), states that in a case where the court is considering morality as an issue in determining visitation rights, it is error for the judge to cancel visitation with father when he moves in with a woman to whom he is not married. Lifestyle cannot be sole factor by which morality is judged. Truitt v Truitt, 172 Mich. App. 38 (1988) explains that cohabitation with girlfriend does not of itself mean the party is immoral. A now out of print publication by the State Court Administrative Office has this to say: "Is there a pattern of behavior in the realm of morals and ethics on the part of either party that might have an adverse effect on the moral or ethical development of the children? This question may be answered in regard to two basic issues: example and psychological impact. In the first, repeated illegal or immoral behavior conducted by the parent in the presence of the child, or behavior of which the child is likely to learn, can serve as a negative example to the child and may encourage such behavior on the child's part. In the second instance, behavior on the part of the parent such as use of drugs or repeated liaisons with multiple partners could cause neglect of the child's basic needs or disruption in the child's ability to bond with significant adult figures...it is only the task of the investigator to note any differences between the behavior of the parents which impacts on the moral or ethical development of the child." |
|
|
|
|
"The Messy (Legal) Steps of Divorce" |
|
|
|
|
"The Messy (Legal) Steps of Divorce" |
|
|
|
|
"The Messy (Legal) Steps of Divorce" |
|
|
Copyright © 1998-2008 Divorce Peers. Saline and Ann Arbor, Michigan U.S.A. All Rights Reserved. Terms of Use. Privacy Statement.
|