Decision to Suspend Mother’s Parenting Time Had the Effect of Modifying the Award of Joint Physical Custody
Unpublished Opinion: August 24, 2023 (Boonstra, P.J., Letica and Feeney, JJ.)
Approved for Publication: October 12, 2023
Docket Nos. 364921 and 365078
Oakland Circuit Court
Holding: The trial court’s decision to suspend Mother’s parenting time had the effect of modifying the award of joint physical custody in the consent judgment of divorce, and MCR 3.207 did not apply to the case. The trial court also failed to make the necessary findings regarding proper cause or change in circumstances or findings regarding the effect of parenting time with Mother on the child’s physical, mental, or emotional wellbeing, as there was no admissible evidence of endangerment that could have been solely attributed to Mother, and clearly erred when it failed to hold an evidentiary hearing prior to suspending Mother’s parenting time. Therefore, the Court of Appeals deemed it necessary to remand the case to the trial court so an evidentiary hearing could be held.
Facts: The parties share one minor child and they shared joint legal and physical custody of the child with a week on/week off parenting time schedule. The parties filed various post-judgment motions regarding custody and parenting time, consistently alleging the other party engaged in wrongful conduct. The number and severity of the allegations escalated throughout the proceedings, and the child began to develop significant mental health issues.
On December 15, 2022, the trial court granted Father’s motion to immediately suspend Mother’s parenting time alleging: (1) the child missed or was tardy to school during Mother’s parenting time; (2) Mother was suffering from mental health issues; (3) Mother was attempting to alienate the child from Father; and (4) Mother failed to take the child to appointments for the child’s mental health. Mother moved to have the ex parte order set aside, arguing that it was not in the child’s best interests to suspend her parenting time and place the child solely in Father’s care. Mother stated that the child alleged the child had been sexually assaulted by Father and Father’s other child. She also alleged that Father failed to take the child’s mental health issues seriously despite them involving suicidal ideation, anxiety, and depression.
The trial court denied Mother’s motion on December 19, 2022. Mother was ordered to place the child in Father’s care, and the child was ultimately admitted to a psychiatric hospital. In a December 21, 2022, hearing, the GAL recommended that Mother be granted supervised parenting time after the child’s release from treatment for his mental health issues, but the GAL did not present any evidence or reasoning explaining why supervised parenting was necessary.
When the child was released from the hospital, he returned to Father’s care. The Trial Court then referred the issues of custody and parenting time to the Friend of the Court for an evidentiary hearing and required Mother’s parenting time to be limited and supervised.
Mother immediately moved the trial court to lift the supervision requirement for her parenting time and restore her parenting time. She also moved the trial court to order that Father was limited to supervised parenting time, arguing that Father failed to address the child’s mental health needs after his release from the hospital, and that she was the only parent equipped to ensure the child received the necessary mental health treatment.
On January 12, 2023, Mother moved the trial court to immediately suspend Father’s parenting time because the child was hospitalized while in Father’s care. The next day, the trial court entered an order finding Mother failed to show specific facts in an affidavit or verified pleading that irreparable injury, loss, or damage would result from the delay required to effect notice. It further suspended Mother’s parenting time pending oral argument on January 18, 2023.
The GAL and Father noted that medical professionals believed the child’s mental health issues improved after Mother’s parenting time and contact was suspended. The trial court adopted the GAL’s recommendation, informing Mother that it was temporary but suspended Mother’s parenting time indefinitely. Mother appealed.
Key Appellate Rulings:
A trial court is required to conduct an evidentiary hearing when allegations are made against a parent because it is a constitutionally protected due process right.
“Parents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process.” In re JK, 468 Mich 202, 210 (2003). This due process right can only be withdrawn when clear and convincing record evidence demonstrates that parenting time “would endanger the child’s physical, mental, or emotional health.” MCL 722.27a(3). When a court seeks to limit or deny parenting time, the liberty interests at stake are powerful and the state must provide the parents with fundamentally fair procedures to satisfy constitutional due process standards. Hunter v Hunter, 484 Mich 247, 257 2009).
The trial court was required to consider whether (1) proper cause or a change of circumstances had arisen to warrant revisiting parenting time and custody; (2) an established custodial environment existed and whether modifications to parenting time would disrupt it; and (3) the evidence supported a finding that any proposed modification was in the child’s best interests.
Thus, the trial court violated Mother’s due process rights when it failed to consider these factors in regard to the suspension of her parenting time with the minor child. Trial courts must comply with the Child Custody Act and make the requisite findings of fact.
