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01/08/76 BURGHDOFF v. BURGHDOFF

January 8, 1976

BURGHDOFF
v.
BURGHDOFF



Appeal from Barry, Richard Robinson, J.

T. M. Burns, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. Infants -- Custody -- Determining Factors -- Best Interests -- Statutes.

The guiding factors in child custody matters are the best interests of the child involved, and the factors which determine those best interests are set out in a statute (MCLA 722.23; MSA 25.312[3]).

2. Infants -- Judgments -- Review -- Weight of Evidence -- Abuse of Discretion -- Legal Error.

All orders and judgments of a circuit court regarding a child custody dispute should be affirmed on appeal unless the trial Judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCLA 722.28; MSA 25.312[8]).

3. Infants -- Custody -- Preference of Child -- In Camera Conference -- Relevant Matters.

The reasonable preference of the child is a factor to be considered in a child custody dispute if the court deems the child to be of sufficient age to express a preference, and an in camera conference is generally the best way for the Judge to determine the preference of the child, but such a conference must be confined to those matters reasonably necessary to enable the Judge to determine and understand the child's preference.

4. Infants -- Custody -- Testimony of Infant -- Open Court -- Cross-Examination.

A child who is the subject of a custody dispute should not be required to testify in open court and be cross-examined as he would if he were a witness in an ordinary criminal or civil litigation.

5. Infants -- Custody -- Statements of Infant -- Statute -- Testimony -- Applicability.

A statement by a child to a Judge that he prefers to live with one parent rather than another is not to be equated with testimony regarding facts which are in dispute; therefore, the statute requiring the court to ascertain on the record that a child has the intelligence and sense of obligation to tell the truth when he is called as a witness is inapplicable to such a statement (MCLA 600.2163; MSA 27A.2163).

6. Infants -- Custody -- In Camera Proceedings -- Questions of Moral Fitness -- Resolving Conflicting Testimony -- Appeal and Error -- Harmless Error.

Judicial questioning of a child involved in a custody dispute concerning the moral fitness of the parties in an apparent attempt to resolve conflict in the testimony exceeds the scope and intent of an in camera conference and is improper, but reversal is not required where, viewing the record as a whole, the court's findings of fact were not against the great weight of the evidence ...


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