COA Holds Plain-Error Standard of Review Applies to Child Custody Cases
Opinion Published: 04/04/2024
Docket No. 368002
Ionia Circuit Court
Jordan Ahlers of the Speaker Law Firm represented the Appellant-Mother
Holding: The Court of Appeals vacated the Trial Court’s order awarding the Father sole legal custody of the parties’ minor child based on a failure to consider the minor child’s preference pursuant to MCL 722.23(i) and remanded for a new custody hearing with consideration of up-to-date information.
Facts: When the parties divorced, they were awarded joint legal and physical custody of their one minor child. Parenting time for Father was “as the parties agree.” Four years after the entry of the judgment, Father moved to change custody and parenting time based on Father’s concerns regarding Mother’s behavior, which Father argued interfered with the child’s schooling, medical, and dental appointments. Following a hearing on Father’s motion, the Trial Court agreed and granted Father sole legal custody and modified parenting time such that Father was the primary physical custodian. The Trial Court did not interview the minor child when making its determination, as the Trial Court was not comfortable interviewing a child of the age of seven and neither party had requested the Trial Court interview the child.
Key Appellate Rulings:
Plain-error standard, rather than the “raise or waive rule,” applies to unpreserved issues in child custody cases.
Where a party in a civil case fails to raise an issue in the trial court, the Court of Appeals ordinarily will decline to address the issue under the “raise or waive” rule. Tolas Oil & Gas Exploration Co v Back Servs & Mfg, LLC, __ Mich App __, __; __ NW2d __ (2023) (Docket No. 359090); slip op at 3. However, the Court of Appeals noted that Michigan appellate courts have applied the plain-error standard of review in certain civil cases, particularly child protection cases. In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). While the Court of Appeals also noted that child custody cases differ from child protection cases, the Court of Appeals held that both types of cases have “certain material similarities, including a focus on the best interests of the child.” As such, the Court of Appeals concluded that “judicial prudence favors applying the pain-error standard to an unpreserved claim in a child-custody proceeding.”
Failure to interview the child pursuant to MCL 722.23(i) is a plain-error affecting the child’s substantial rights.
Applying the plain-error standard, the Court of Appeals held that the Trial Court’s custody order had to be vacated. First, the Court of Appeals determined that an error was committed and that error committed by the Trial Court was plain, as MCL 722.23(i) requires a trial court to consider the reasonable preference of the child and the requirement is not contingent upon either party requesting the trial court do so. The Court of Appeals noted the only limitation on this requirement was whether the child was of sufficient age to express a preference, which the Court of Appeals in Pierron v Pierron determined was as young as six years of age. Pierron v Pierron, 282 Mich App 222, 258-259; 765 NW2d 345 (2009). As the child in this case was seven years old at the time of the hearing, and there was nothing to suggest that he could not express a reasonable preference.
While the Court of Appeals noted that “ordinarily we would consider whether the error affected a party’s substantial rights,” the Court of Appeals concluded that the focus of whether the Trial Court’s plain error of failing to comply with MCL 722.23(i) affected substantial rights should be on the child. The Court of Appeals held that doing otherwise would “ignore the substantial rights of the child whose custody is being decided. To do so would be pedantic and, more importantly, would defeat the very reason why we apply plain-error review in this kind of case, i.e., to ensure that the child’s best interests are protected.” Focusing on the child, the Court of Appeals held the Trial Court’s error affected the child’s substantial rights as MCL 722.23(i) is the only opportunity for the child to have his or her voice heard by the court in a custody proceeding. The Court of Appeals noted “[o]ur Legislature deemed this right/opportunity of sufficient worth to mandate its consideration in a trial court’s best-interests analysis, and our Court has similarly deemed it of sufficient worth to mandate its consideration by the trial court despite a parent’s failure to raise it.” As such, the Court of Appeals vacated the Trial Court’s order and remanded for a new custody hearing with consideration of up-to-date information.
The requirement of MCL 722.23(i) applies even where a parent is only requesting a change of legal custody.
The Court of Appeals noted that this case was different “from the mine-run of custody appeals” as the Trial Court only modified legal custody. The Court of Appeals expressed concern regarding whether a child could even express a reasonable preference regarding which parent should be awarded legal custody. However, the Court of Appeals ultimately did not reach this question, as it held that the Legislature did not differentiate between physical and legal custody for purposes of the MCL 722.23 best interest factors. The Court of Appeals held that the Legislature determined that MCL 722.23 best interest factors apply to all custodial challenges, and that the Legislature “left to the sound discretion of the trial court to determine whether a particular child’s preference with respect to legal custody is a reasonable one.”
Judge Yates’ Concurring Opinion
Judge Yates agreed completely with the majority’s opinion, however he wrote separately to express his “misgivings” about requiring a trial court to interview a child as young as six years old. Judge Yates noted that the Court of Appeals, in published opinions, had previously determined that six years old was considered a sufficient age to express a preference, however, Judge Yates “wish[ed] this Court had not said that.” Judge Yates concluded that the Court of Appeals should “instead had given trial courts substantial discretion to decide whether the young children before them are sufficiently mature to express their preference.”
