A mother’s motion for modification of custody was erroneously denied, the Michigan Court of Appeals has ruled, because the trial court failed to conduct an evidentiary hearing to determine whether she had established the required proper cause or change in circumstances.

The defendant-mother in Giordana v Giordana (Docket No. 354050) claimed the trial court should have held an evidentiary hearing before concluding that she did not establish the threshold issue of proper cause or change in circumstances to review the custody order.

The Court of Appeals agreed.

“Based on the record before us, we conclude that there was a contested factual issue, i.e., whether plaintiff committed physical abuse of any of the children, that needed to be resolved for the trial court to make an informed decision on defendant’s motion to modify custody,” the Court of Appeals wrote. “Furthermore, there was a contested factual issue regarding whether defendant was coaching the children to make false accusations against plaintiff.”

Accordingly, the Court of Appeals vacated the trial court’s ruling and remanded for further proceedings – namely, the threshold evidentiary hearing.

Judges Brock A. Swartzle, Jane M. Beckering and Elizabeth L. Gleicher were on the panel that issued the unpublished opinion.

Background

The plaintiff-father and the defendant-mother were divorced in 2017. The Marquette County Circuit Court awarded the parties joint legal and joint physical custody, and a parenting-time schedule was put in place.

In May 2018, the plaintiff filed a motion to modify parenting time. He alleged the defendant had filed two false reports, claiming that he was physically abusing the children. In September 2018, the defendant filed a motion to show cause, asserting the plaintiff had failed to abide by various provisions in the divorce judgment. In January 2019, the trial court entered a stipulated order addressing parenting-time issues. The stipulated order did not modify any custody provisions.

The defendant filed a motion to modify custody in July 2019, again alleging the plaintiff was physically abusing the children. The plaintiff, however, denied that he had harmed the children. He also insisted that the defendant continued to make false accusations against him and that the defendant had “coached” the children to make such false accusations.

At the hearing on the defendant’s motion, the referee found that although she had made “a showing of smoke,” she did not meet her burden of establishing proper cause or change in circumstances to warrant an evidentiary hearing. The trial court adopted the referee’s findings and denied the defendant’s motion to modify custody.

The defendant filed another motion for change in custody in March 2020. This time, she asked the trial court to award her sole legal and sole physical custody, primarily based on a parenting-time exchange that had occurred the month prior. In addition, the defendant claimed that one of the children had disclosed multiple incidents of physical abuse by the plaintiff. At the hearing on the motion, the defendant’s attorney made an offer of proof regarding how various witnesses would testify if there was an evidentiary hearing.

The trial court declined to conduct the evidentiary hearing, finding the defendant did not meet her burden of showing proper cause or change in circumstances. Accordingly, the trial court denied the defendant’s motion for change of custody.

The defendant appealed.

Evidentiary Hearing Is Necessary

On appeal, the defendant argued the trial court should have conducted an evidentiary hearing before concluding that she failed to meet the threshold issue of proper cause or change in circumstances.

The Court of Appeals began its analysis by citing MCL 722.27(1)(c), which says the party seeking to modify a child-custody or a parenting-time order “must first establish proper cause or a change of circumstances before the court may proceed to an analysis of whether the requested modification is in the child’s best interests.”     

The Court of Appeals then pointed out the trial court in this case had indicated the defendant’s attorney did “an excellent job” of establishing his client’s offer of proof. But despite this, the appeals court noted, the trial court ultimately ruled the defendant did not meet her burden of proof to review the custody order.

“[T]he trial court found that because there were reports of ‘good things’ and because the parties needed to get along to maintain their relationship with the children, the defendant had failed to meet her burden of proving by a preponderance of the evidence that proper cause or a change of circumstances existed to warrant revisiting the custody order,” the Court of Appeals explained. “In doing so, the trial court failed to consider whether an evidentiary hearing was required to resolve contested factual issues in the case.”

Therefore, based on the record, “we conclude that there was a contested factual issue, i.e., whether plaintiff committed physical abuse of any of the children, that needed to be resolved for the trial court to make an informed decision on defendant’s motion to modify custody,” the Court of Appeals explained. “Furthermore, there was a contested factual issue regarding whether defendant was coaching the children to make false accusations against plaintiff. Defendant’s offer of proof and the other information contained in this record were sufficient to warrant an evidentiary hearing to determine whether defendant had met her burden of establishing proper cause or change in circumstances.”

The defendant’s motion implicated several best-interest factors, including MCL 722.23(h), (i), (j) and (k), the Court of Appeals pointed out. “Plaintiff’s counsel indicated that she received an e-mail from the prosecutor’s office stating that the allegations one of the children made during a forensic interview were unsubstantiated. The fact that authorities believed that these allegations were unsubstantiated is not dispositive when determining whether there is proper cause or change in circumstances.”

According to the Court of Appeals, the defendant’s attorney made an offer of proof that, if there was an evidentiary hearing, witnesses would testify they did not see the defendant coaching the children and the children were nervous and unwilling to go with the plaintiff. “Defendant’s counsel also stated that the child’s school counselor would testify that the child kept a journal about plaintiff’s alleged physical abuse. Assuming that defendant could have authenticated the journal at the hearing, … the journal would be admissible under MRE 401 and MRE 402. … We conclude that defendant’s offer of proof was sufficient to warrant a hearing to determine whether defendant could establish that there was proper cause or change in circumstances.”

Therefore, on remand, the trial court must conduct the threshold evidentiary hearing, the Court of Appeals concluded. Then, if the trial court determines the defendant has established proper cause or change of circumstances, “the trial court should consider whether an established custodial environment existed before conducting a review of the best-interest factors.”