The trial court in this custody action properly denied the plaintiff-mother’s objections to the Friend of the Court referee’s recommendation that sole legal and physical custody be awarded to the defendant-father, the Michigan Court of Appeals has ruled.

The plaintiff-mother and the defendant-father in Pacholski v Ladd (Docket No. 368466) were never married and had two children together. The plaintiff, who is disabled by narcolepsy and cataplexy, receives Social Security benefits. The parties entered into a consent judgment for custody, agreeing to share legal and physical custody of the children. The defendant later filed an emergency motion to suspend the plaintiff’s custody and parenting time, claiming that her negligent supervision of their children resulted in one child sustaining multiple injuries.

The Macomb County Circuit Court referred the matter to the Friend of the Court (FOC). After an investigation and an evidentiary hearing, the FOC referee recommended the defendant be awarded sole legal and physical custody of the children because he could provide “a more appropriate, stable and safe living environment, while also providing for their special needs.” The referee further found that numerous best interest factors in MCL 722.23 weighed in the defendant’s favor.

The plaintiff objected to the best interest findings, claiming there was no material change that justified a modification of the custody agreement. The Macomb County trial court denied the plaintiff’s objection and adopted the FOC referee’s findings and recommendation. As a result, the defendant was awarded sole legal and physical custody. The plaintiff appealed.

The Court of Appeals affirmed the trial court’s decision, finding that the statutory requirements for changing a custody order under MCL 722.23 “were satisfied.”

Notably, the Court of Appeals rejected the plaintiff’s argument that the trial court violated her due process rights because it modified the custody order after Children’s Protective Services (CPS) had already successfully used “less restrictive means” to protect the children’s welfare. “However, [the plaintiff] cites no Michigan authority in support of her theory that due process requires trial courts to pursue other, less restrictive means of protecting children’s welfare before modifying a custody order, nor does she attempt to demonstrate that Michigan’s legislative scheme for changing a child’s established custodial environment are insufficient to protect a parent’s substantive due-process rights,” the appeals court said.

Judge Kristina Robinson Garrett, Judge Michael J. Riordan and Judge Anica Letica were on the panel that issued the 11-page unpublished opinion.

Change Of Circumstances

In its opinion, the Court of Appeals first refuted the plaintiff’s argument that the trial court wrongly found there had been a change of circumstances that warranted a change in custody because the facts relied upon “existed before the entry of the last custody agreement, and, therefore, could not justify a change in the custody agreement.”

According to the Court of Appeals, the trial court found the defendant’s allegations regarding abuse, neglect and improper supervision “constituted a change of circumstances sufficient to permit modification of the custody order.” The defendant’s emergency motion to modify custody described the plaintiff’s history of neglect, the appeals court noted. “Also attached to [the defendant’s] motion for a change of custody was a pediatrician’s report … detailing ML’s multiple bruises and black eye. The report stated that ML was a suspected victim of physical abuse because his black eye could not have been caused by a miniature candy bar as [the plaintiff] described. The report also contained pictures of ML’s bruising.”

The custody order issued prior to the defendant’s emergency motion was entered in September 2020, the Court of Appeals observed. “Consequently, this medical report established a change in circumstances that occurred after the last custody order. This change of circumstances - suspected physical abuse - had the potential to significantly affect the children’s well-being if one of the parents was physically abusing the children or failing to properly supervise them, resulting in excessive injuries.”

Therefore, “the trial court did not err in its determination that there was a change of circumstances that warranted review of the existing custody arrangement,” the Court of Appeals held.

Best Interest Factors

Next, the Court of Appeals addressed the plaintiff’s argument that the information and circumstances used to evaluate the statutory best interest factors “were irrelevant, lacked evidentiary support or had changed by the time of the evidentiary hearing.”

The Court of Appeals emphasized the parties did not dispute the children had an established custodial environment with both parents. “Therefore, the trial court was required to find clear and convincing evidence that modifying the children’s established custodial environment was in their best interests. …  On appeal, as she did below, [the plaintiff] challenges the trial court’s findings under MCL 722.23(b), (g), (h), (j), and (l).”

First, the Court of Appeals examined factor (b), which considers “[t]he 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.” The trial court’s finding in this regard “was not contrary to the great weight of evidence,” the appeals court said. “While both parents had substantiated allegations of improper supervision, the evidence demonstrated that [the defendant] made more substantial and faster improvement in his parenting skills than [the plaintiff] because he was consistent with his services and stayed in constant communication with [the caseworker]. Additionally, ML sustained a serious burn because plaintiff failed to watch him. There were also concerns that the children were malnourished while in [the plaintiff’s] care because they were seen eating out of trash cans at school, even though [the caseworker] verified that the children were within the average weight range for their age. …  In sum, given the testimony and exhibits presented during the evidentiary hearing, we conclude that the trial court’s finding that factor (b) weighed slightly in favor of [the defendant] was not contrary to the great weight of evidence.”

Looking at factor (g), which considers “[t]he mental and physical health of the parties involved,” the Court of Appeals said that, given the issues that arose with the children, “we will not interfere with the trial court’s determination that [the plaintiff’s] health issues were exacerbated after the birth of her youngest child, which fact supports the trial court’s conclusion that factor (g) weighed in [the defendant’s]  favor.” In addition, the trial court “was correct when it recognized that [the plaintiff’s] health issues were chronic, while [the defendant’s] health issues had been acute before they fully resolved. Because the trial court’s finding that [the plaintiff’s] health issues were more serious than [the defendant’s] health issues was supported by the record, we conclude the trial court’s finding, that factor (g) weighed in favor of [the defendant] … was not against the great weight of evidence.”

The Court of Appeals then turned to factor (h), which considers “[t]he home, school, and community record of the child.” The trial court found this factor weighed in the defendant’s favor because he “has almost entirely been responsible for the children’s health needs which are extensive.” According to the appeals court, the testimony “was clear that the reason [the defendant] took the children to most of their medical appointments was because he lived much closer to the pediatrician than [the plaintiff] did. [The plaintiff] did not change the children’s pediatrician because of their longstanding relationship. We recognize that parents in shared custody arrangements must work together and delegation is often necessary to successfully care for children. Nevertheless, the trial court’s decision was not against the great weight of evidence because [the defendant], though understandably so, was indeed more involved in the children’s doctor appointments than [the plaintiff]. … [T]he referee was in the best position to determine the credibility of the witnesses. … Because the record supported the trial court’s finding that factor (h) weighed in [the defendant’s] favor, we conclude that it was not against the great weight of evidence.”

Next, the Court of Appeals turned to factor (j), which considers “[t]he 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.” The referee’s finding that the plaintiff denied the defendant parenting time “out of anger or spite” was supported by the defendant’s fiancée’s testimony that the plaintiff “would often come up with an excuse to withhold the children from [the defendant] if she was upset with him,” the appeals court observed. “There was nothing in the record indicating that [the defendant] did not cooperate in working with [the plaintiff] to parent the children or that [the defendant]  attempted to interrupt [the plaintiff’s] parenting time. Accordingly, the referee’s finding concerning this factor, which was adopted by the trial court, was not against the great weight of evidence.”

Lastly, the Court of Appeals addressed factor (l), which considers “[a]ny other factor considered by the court to be relevant to a particular child custody dispute.” Although both parents had substantiated allegations for improper supervision, the plaintiff’s “improper supervision led to ML’s serious burn injury, and the children generally incurred more injuries while in [her] care,” the appeals court said. In addition, the defendant “more quickly and substantially improved his parenting skills” than the plaintiff and he “voluntarily kept in regular contact with [the caseworker], while [the plaintiff] only provided pictures and updates when asked to do so. [The defendant] also followed CPS’s recommendation that each child have his own bedroom. [The plaintiff] was living alone, as opposed to [the defendant’s] two-adult household. Moreover, ML was burned because [the plaintiff] was not watching him. [The plaintiff] recently had another child, which added more responsibility to her daily life. Additionally, the children’s paternal grandmother testified that [the plaintiff] sometimes slapped the children on their heads and failed to adhere to the recommendations she received regarding care for the children’s special needs. Accordingly, the referee’s findings under this factor were not contrary to the great weight of evidence. And, because none of the referee’s findings were contrary to the great weight of evidence, the trial court did not err by adopting them.”

Due Process

The plaintiff also argued the trial court violated her constitutional rights because “less restrictive means for protecting the children’s welfare had already been accomplished prior to the trial court’s order changing custody.”

The Court of Appeals disagreed, noting that parents have a “fundamental right” to raise their children.  “The state is precluded from depriving a parent of his or her liberty interest in the care and custody of a child without due process of law.”

Here, the plaintiff asserted - without citing any legal authority to support her position - that the trial court violated her rights because it altered the custody order after CPS had successfully used “less restrictive” means to protect the children’s welfare. “Accordingly, [the plaintiff] has abandoned this part of her argument.”

Further, even if the plaintiff “had not abandoned this argument, it lacks merit,” the Court of Appeals said. “In Robertson v Robertson, unpublished opinion per curiam of the Court of Appeals, issued April 13, 2006 (Docket No. 264321), … this Court rejected a mother’s claim that applying the Child Custody Act’s best-interest factors to determine custody violated her substantive due process right to parent …. Even though Robertson is not precedentially binding, its analysis is persuasive and we adopt it.”

In addition, the plaintiff “reference[d] the parens patriae interest” to support her argument that the trial court erred by changing the custody order. “However, what [the plaintiff] does not contemplate in her argument is that the Child Custody Act ‘is intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders,’” the Court of Appeals wrote. “In other words, the Child Custody Act advances the parens patriae interest by specifying the requirements that must be met before a trial court may modify a custody order. Further, child custody orders ‘shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ … [The plaintiff] does not assert that the trial court abused its discretion or committed a clear legal error, and … the trial court did not make findings of fact that were against the great weight of evidence.”

Accordingly, “the statutory requirements for changing a custody order under MCL 722.23 were satisfied and we affirm the trial court’s order awarding [the defendant] sole legal and physical custody,” the Court of Appeals concluded.