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Bert Whitehead IV
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Bert Whitehead’s Answers

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  • I'm thinking about asking for full physical custody but not sure I'll have a chance

    My daughter is 5 leaving with her single mom, her aunt and cousin. Her mom has a lot of physical problem which require physical therapy and also going to grade school plus full time job so not a lot of time for my daughter. I work full time, my wi...

    Bert’s Answer

    Hi there. In order to modify custody, you must show that a "material change of circumstances or other proper cause," related to the best interests of the child, has occurred since the last "custody" order.

    Therefore, your first question is: what is the date of the last custody order that went into effect. If it went into effect 5 years ago, then there is a higher likelihood that here have been many material changes or other proper causes that affect the best interests of the child since that order. If the current/latest custody order went into effect not long ago, then there is less likely going to be enough to get the court to consider a change.

    Changes could be with regards to your situation (you are now employed; before you were not. You live much closer than you used to. You used to be on drugs; now you are not. You used to be in jail; now you are not. You now have stable housing; before you did not. Etc).

    Changes could also be related to your ex's situation (she has boyfriends in/out of the child's life; she doesn't have stable housing anymore; she gets in trouble with the law; she is using drugs; she is living with an ex-con child molester boyfriend, etc).

    And changes could be related to your child (the child's grades are terrible and getting worse; the child is having behavioral problems; the child is not eating well at mom's; the child is not getting proper medical attention at mom's, etc).

    Usually, a person in your situation would be able to point to a combination of factors in your favor, and against the mother, and regarding the child's best interests, that you would put into a single Motion to Modify custody. Then once you file, the court holds a "threshold hearing," in which the Referee or Judge basically decides only one thing: based on your motion and evidence presented, has there been a material change of circumstances or other proper cause, affecting the best interests of the child, to justify moving forward with an evaluation and recommendation for a change of custody.

    If you meet that burden in that hearing, then your motion to modify can proceed, and the court will ultimately decide on a change of custody based on the "12 best interest factors" that you referenced (or, better yet, you and the mom will agree on a new custody order together).

    I hope this helps.

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  • What can I do?

    I let a friend of a friend store hydroponic growing equipment in my shed 5mths ago. He said it would be for a few weeks and we had no contract. He has told me he was coming to get the equipment 15 times, I have the text messages. I told him I was ...

    Bert’s Answer

    Hi there,

    Since your friend was not living there, then I don't believe that the MI Landlord/Tenant Act applies. Also, based on your fact-set, I don't believe that the Self-Storage Act applies to this case, either (see definitions in MCL 570.522).

    Therefore, this is what I would recommend:

    1. Take inventory of the abandoned property

    2. Give written notice to the person detailing how and where to reclaim the property.

    3. Provide a deadline for picking up the property -- give him 30 days from the date the letter is delivered at his house (delivery date, not sent date).

    4. Declare clearly in your written notice that failure for them to claim the property means that it is legally abandoned, and that you will dispose of the property after it is legally abandoned.

    Then send the letter by Priority mail with tracking on, so that you have clear tracking of its delivery. Make a copy prior to sending. Keep the postage receipt and print out the tracking information after it is delivered.

    After the 30 days past the delivery date, then get rid of the property. If he sues you, share all of this information and documentation.

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  • Hi me and my hubby have a roomate that is not on our lease and has stopped paying us rent how can we get him out we have told

    him to move but he sayes no he has also quit his job how can we get him out we told him last november to move out he has told us no please what can we do i have bad medical problems and the stress from him is not helping

    Bert’s Answer

    Hi there, you should give him a 7 day Demand for Possession (Form DC 100a) for nonpayment of rent, and then if he fails to catch up ALL of the past-due rent, you can then file a Complaint - Non Payment of Rent DC 102a, with the necessary copies and attachments. You will get a court date within a couple weeks, and then he must show up or get a default judgment against him. Even if he shows up, the judge will still likely order him out. He then has 10 days (unless the judge gives him a little more time) to move out, at which time you can get an Order of Eviction from the court clerk, and then you can move his stuff out onto the street. You can also call the local police or sheriff and ask if they will stand-by while you move out his stuff.

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  • My ex and I have agreed to make some changes to our child support and perhaps custody. How can we do this?

    I have arrearages for child support. The father of my daughter has agreed to forgive any arrearage amount (he doesn't want me to pay him) and that I do not have to pay support going forward. This is due to the fact that he has been working out o...

    Bert’s Answer

    • Selected as best answer

    First of all, Michigan LAW presumes that it is in the best interests of the child if parents agree as to both custody and parenting time.

    MCL 722.26a(2) states that, "If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child."

    MCL 722.27a (2) states that, "If the parents of a child agree on parenting time terms, the court shall order the parenting time terms unless the court determines on the record by clear and convincing evidence that the parenting time terms are not in the best interests of the child."

    Therefore, unless you are both trying to agree that only one of you should have sole custody, the court is supposed to presume that your agreement is in the best interests of the children.

    Also, in my experience, the courts will rarely ever deny a consent judgment for custody, parenting time, and support. We have helped many clients write up a consent order for custody, parenting time, and child support (using software that complies with the Michigan Child Support Guidelines), have both parents sign them, and submit the docs to the judge, and the judge will nearly always sign them. The only time that a judge did NOT sign our consent order was when the mother was giving up complete custody of her children to the father. Again, that fits with my comment above.

    As far as there being a court form, there certainly is a court form that you can use to file a motion to modify custody and parenting time with the court. For a "Motion Regarding Parenting Time," there is FOC 65. For a "Motion Regarding Custody," there is FOC 87. So you could file one of these motions, the court will give you a court date, and then you both show up at the court hearing and both agree to the new custody/parenting time arrangement. The court will write up the order, you both sign it, and you are good to go.

    As for child support, if the parenting time change will change the number of overnights that each of you has the children, or if your incomes have changed, etc., then the FoC will recalculate the child support for you, and will create the new Child Support Order, which you both can sign, and the judge will sign.

    Now, if you'd prefer to avoid the court hearings, and to avoid having the Friend of Court calculate the child support, then you can use an attorney to draft up a consent judgment for Custody, Parenting Time, and Support, as well as run the child support numbers through the Child Support software, prepare the child support worksheet and child support order, then have both of you sign all copies, and we can submit the copies to the judge for signature. The judge will very likely sign all copies, and you will be on your way (Note: some counties may insist on having their FoC to calculate the child support, but most will accept the child support order if it is attached to the underlying worksheet, and was prepared by an attorney).

    Our firm can do the above for a fairly reasonable low flat rate.

    I wish you the best!

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  • Do I need to involve Friend of the Court if we do mediation?

    My goal is to be able to have 50/50 custody. I filed an ex parte because I am moving to another apartment in the same complex, but I am not abandoning my child in any way.

    Bert’s Answer

    I too do not quite understand what you are asking, but I can at least answer what I think you may be getting at.

    First, even if you are somehow able to get mediation, such as out of court, or you both agree to certain terms yourselves, then you will need to get that agreement into a Court Order. You don't necessarily need to go through Friend of Court; you can write up a Consent Order for Custody and Parenting time, both sign it, and then ask the judge to sign it. Unfortunately, writing an order that complies with all state law provisions, and following the correct process to get it in front of the judge, is not very straightforward. Also, if the change in custody or parenting time would result in a change of child support, under the Michigan Child Support Guidelines/Calculator, then either the Friend of Court or an Attorney must calculate those changes and create a new child support order for you. I recommend that you have a lawyer help you with this.

    Second, as Counsel noted, there is nothing in your question that suggests a situation in which an "Ex Parte" filing is appropriate. An ex parte order is one that a judge signs without a hearing, because there is some emergency situation that requires an order so urgently that there will be irreparable harm or loss if the court waits for a hearing and notifies the other party. Your facts do not suggest anything like this is at stake.

    Therefore, if you want to "file" something with the court, to change custody or parenting time to 50/50, then you'd file either a Complaint for Custody, Complaint for Paternity, or Motion to Modify Custody/Parenting Time, depending on your situation. You should probably consult a lawyer (or provide much more detail here) to understand what kind of complaint or motion you need to file.

    Thank you!

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  • Can you live in a two bedroom apartment with four children and one adult?

    My husband and his ex wife have a court date coming up for parenting visitation. Over the last three years the two boys have been living with us full time and seeing her every other weekend (her choice) even though its joint custody. Now since the...

    Bert’s Answer

    Yes, one can live in a two bedroom apartment with four children and one adult. There is no law against that, nor is there a presumption in family law court that such an arrangement is not fit for the children.

    However, it certainly can be a fact that weighs against the ex-wife when the court considers the best interests of the children. The court uses the twelve "best interest factors" of Michigan statute MCL 722.23 to determine whether it is in the best interests of the children for a custody change. They are:

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

    (b) 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.

    (c) 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.

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

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

    (f) The moral fitness of the parties involved.

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

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

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

    (j) 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.

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

    (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

    The court will first determine if there has been a material change of circumstances since the last order, affecting the best interests of the children, to even grant a further evaluation.

    Assuming the ex-wife passes that "threshold test," then the court looks at whether there is an established custodial environment in place, and whether the motion, if granted, would change that established custodial environment.

    If granting mom every other week would change the established custodial environment, then she must prove, by "clear and convincing evidence," that it is in the best interests of the children for the change to be granted. If there is a change in parenting time (obviously), but no change in the established custodial environment, then the ex-wife must only prove by the "preponderance of the evidence" that it is in the best interests of the children to change the order.

    A lawyer can best help you consider all of the facts in your case and help you determine: 1) has there been a material change of circumstances since the last order; 2) is there is an established custodial environment; 3) the meaning of "clear and convincing evidence" vs. the preponderance of evidence; 4) and how to evaluate the facts of your case and how the court might view them against each of the best interest factors.

    A lawyer can also be very helpful in court to argue that: 1) there has been NO material change of circumstances (and thus, the court should dismiss); 2) there IS an established custodial environment and this request would change that; 3) and that she has NOT proven, by clear and convincing evidence, that it is in the best interests of the children to grant her request.

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  • What can my step son do to see his baby?

    My step son's daughter lives with her mother, but because he broke up with her she won't let him see their baby. Other than going to court (he can't afford an attorney), is there anything else he can do to see his daughter?

    Bert’s Answer

    Overall, I agree with the attorneys that without court action, your step-son has no recourse.

    However, it is important to understand that your step-son has the right to go to court without hiring an attorney. As long as he has signed an Affidavit of Parentage and/or is on the birth certificate, then he has the right to file a "Complaint for Custody and Parenting Time" with the local county court. The court then usually orders the Friend of Court to get involved and help facilitate the process of evaluating and recommending parenting time. There is a $230 filing fee, but if he is low income or has no income, then he can get that waived by the court. There is a court form for this.

    Second, as others have said, your son may qualify for free legal aid. Many legal aid agencies are listed on Julies List Homestead (Google it).

    Finally, even if your son does not qualify for legal aid, there are affordable attorneys throughout Michigan. For example, if you Google 'affordable legal services Macomb County" you will likely find an affordable attorney. Even our firm helps people write and file their own paperwork for only $500 flat, and represents clients with full representation for only $750 initial retainer.

    Don't give up. It will be worth it in the long run for your step-son to have a strong and loving relationship with his children, and Michigan law presumes that it is in the best interests of the child to have both parents in the child's life.

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  • My boyfriend's mother threatened to sue me for Grandparents rights. I'm 19 weeks pregnant and living with my boyfriend.

    Can she do this? I mean, it came completely out of the blue when I was visiting her. She just said "if you don't like me see my grandchild, I will sue you for grandparents rights and I know how to get an attorney. I have no plans to deny her from ...

    Bert’s Answer

    Hi there,

    The previous attorney is correct, but I would like to add the following:

    1) First, because you are unmarried, then the grandparents only have rights to file if your boyfriend signs an Affidavit of Parentage (required to get on the birth certificate), or a court orders child support, etc. Until there is a court order, an order of paternity, or he signs an Affidavit of Parentage, they have no right to file, much less get any grandparenting visitation rights.

    2) Second, even if they do file, the law says that "the grandparent filing a complaint or motion under this section must prove by a preponderance of the evidence that the parent's decision to deny grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health. If the grandparent does not overcome the presumption, the court shall dismiss the complaint or deny the motion."

    It will therefore be the grandparent's right to 1) file the complaint first, and 2) prove by a preponderance of evidence (just over 50%) that denying them creates a "substantial" risk of harm. They have the burden to convince the court of the harmful effect of denying them. You can argue why it won't be a harmful effect. Namely, if a child is a newborn, the child has no clue who these grandparents are, and therefore can hardly be harmed by the lack of the grandparents in the baby's life. The court presumes that fit parents are all that is needed to care for the needs of the child, and that no grandparents are necessary. I frankly think they would lose in court for this reason.

    Finally, as the other lawyer said, until they get a court order granting them parenting time, you don't have to give them any parenting time, and there is nothing they or any court can do about it. Even if a court ultimately grants them parenting time, the court certainly isn't going to penalize you for not giving parenting time before the order went into effect. You can only get in trouble if you disobey the order giving grandparent rights, once that order is in effect.

    Therefore, I recommend that you do whatever you think is in the best interests of the child. If that means you ultimately think grandma's influence is not good for the child, then you have every right to not allow grandma to see the child. If she wants to get a lawyer, that's fine. She has the bigger burden of proof than you do. And until the court gives her rights, she has no rights at all.

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  • Seeking attorney in child custody (12 yr old boy). Need asap and looking for smaller retainer.

    Other party has lawyer and I have been representing myself. Other party seems to keep wanting to go to court right before school EVERY year. He has drug, DUI, Domestic violence issues and can not take care of himself let alone our child. PLEASE...

    Bert’s Answer

    Hi there, our firm serves the entire state of Michigan, including with in-person representation in any county, and our initial retainers are $750. We also offer monthly payment plans on the remainder of your fees. Our overall costs are typically much less expensive than the average lawyer, as well. If you do not qualify for free legal aid, then we are often the next best alternative for lower- and moderate-income people.

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  • How do I request a paternity test in a child support case?

    I have been paying child support for a child that I'm 99% sure is not mine. I have called the court and they don't give me any answers pertaining to a paternity test. I would like to know what I can do so I can stop these payments.

    Bert’s Answer

    You need to file a "Motion to Revoke Paternity" in the local county court where the child resides or may be found. Once you get a court date, you can ask the judge to order a DNA test from both parties.

    However, this must be done within 3 years of birth of the child. If it is beyond 3 years, especially if the child knows you as "daddy," the court may still require you to be responsible. But file your motion and make your case in front of the judge. A lawyer can be very helpful to represent you.

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