Evidentiary Hearing Should’ve Been Held In Custody Modification Case

The trial court in this custody matter improperly refused to hold an evidentiary hearing on the plaintiff-mother’s request to modify custody and parenting time, the Michigan Court of Appeals has ruled. 

The parties in Crane v Crane (Docket No. 369051) were divorced and shared joint legal and physical custody of their minor child, NGC. The plaintiff-mother filed a motion in Oakland County Circuit Court seeking sole legal custody of NGC and a decrease in the defendant’s overnight parenting time, claiming the defendant “was obstructionist and noncommunicative regarding all joint-custody matters and that [his] behavior was having a significant negative effect on NGC’s behavior, health, and well-being.” The guardian ad litem (GAL) in the case recommended the plaintiff be granted sole legal custody and the defendant’s parenting time be decreased because his “opposition [was] frequently contrary to” NGC’s best interests. 

At a hearing on the plaintiff’s motion, her attorney argued the trial court needed to hold an evidentiary hearing to address disputed factual issues. The trial court, however, declined to hold an evidentiary hearing and found that the plaintiff failed to meet her burden of showing proper cause or a change of circumstances. As a result, the trial court denied the plaintiff’s motion to change custody and parenting time.  

The plaintiff appealed, claiming the trial court should have at least held an evidentiary hearing before ruling that she did not meet the threshold issue of proper cause or a change of circumstances. 

The Court of Appeals agreed. “Because disputed questions of fact remain regarding the existence of proper cause or a change of circumstances, the trial court abused its discretion by failing to hold an evidentiary hearing,” the appeals court said. “We therefore vacate the trial court’s order denying plaintiff’s motion and remand for an evidentiary hearing.” 

Judge Anica Letica, Judge Mark T. Boonstra and Judge Philip P. Mariani were on the panel that issued the unpublished opinion.

Evidentiary Hearing Required

The plaintiff argued on appeal that the trial court should have, “at a minimum,” conducted an evidentiary hearing before issuing its ruling. The Court of Appeals agreed, referencing MCL 722.27(1)(c) and noting that a custody order may only be modified “for proper cause shown or because of change of circumstances.”  

To establish “proper cause” to review a custody order, “a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court,” the Court of Appeals explained, citing Vodvarka v Grasmeyer, 259 Mich App 499 (2003). 

Meanwhile, to establish a “change of circumstances,” a movant “must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s wellbeing, have materially changed,” the Court of Appeals said. 

The threshold requirement for changing custody is “a factual determination that must be decided on a case-by-case basis,” the Court of Appeals observed. “This fact-intensive inquiry may involve an evidentiary hearing, but one is not necessarily required. … Whether an evidentiary hearing is necessary is a discretionary decision that depends on the facts of each case. … Such discretion is reflected in MCR 3.210(C)(8), which provides: ‘In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.’” 

Here, the trial court denied the plaintiff’s motion to change custody “without holding an evidentiary hearing on the threshold issue of whether proper cause or a change of circumstances existed,” the Court of Appeals said. “The court, however, failed to adequately justify why such a hearing was not necessary, and the record belies that conclusion.” 

According to the Court of Appeals, “this is plainly not a case where ‘the facts alleged to constitute proper cause or a change of circumstances [are] undisputed.’ … While the parties agree that they struggle to coparent effectively, largely due to communication issues, they strongly dispute whether defendant is solely to blame for the coparenting issues and the impact of defendant’s actions on his relationship with NGC, his ability to provide care for NGC, and NGC’s emotional and mental health.”

Further, “the record makes clear that plaintiff’s allegations were not so legally insufficient on their face that, if true, they would not constitute proper cause or a change of circumstances,” the Court of Appeals stated. “The bulk of plaintiff’s allegations were based on defendant’s alleged obstructionism and refusal to communicate with plaintiff and the GAL, and the trial court made clear that, based on the documents attached to plaintiff’s motion, the exhibits attached to the GAL’s report, and its own experience with the parties over the years, it did not believe that defendant was solely to blame for the parties’ poor coparenting and communication issues. We do not dispute this finding because it is supported by the record. The trial court, however, entirely failed to address plaintiff’s allegations regarding defendant’s ability to provide for NGC and the substantial negative impact that defendant’s behavior has had on NGC.” 

The Court of Appeals also pointed out that, according to the plaintiff, “NGC has significant anxiety regarding parenting time with defendant, has demonstrated bad behavior and poor grades at school, does not want to stay in defendant’s home, and has turned to plaintiff for financial and emotional support with increasing frequency. If true, these allegations would constitute proper cause or a change of circumstances because they demonstrate something more than mere ‘normal life changes’ and are relevant to several of the best-interest factors [in] MCL 722.23.”  

As a result, the trial court “could not have denied plaintiff’s motion, without holding an evidentiary hearing, by accepting ‘as true the facts allegedly comprising proper cause or a change of circumstances, and then decid[ing] if they are legally sufficient to satisfy the standard,’” the Court of Appeals said. 

Under MCR 3.210(C)(8), “the trial court was required to decide whether an evidentiary hearing was necessary, ‘by requiring an offer of proof or otherwise,’ where – as here – the alleged facts are disputed and the allegations, if true, would constitute proper cause and a change of circumstances,” the Court of Appeals explained. “Instead, the trial court summarily dismissed plaintiff’s allegations without duly considering the necessity of an evidentiary hearing under MCR 3.210(C)(8). As a result, the trial court operated under the wrong legal framework and palpably abused its discretion.” 

Moreover, the trial court’s error was not harmless “and instead necessitates remand for an evidentiary hearing on the threshold issue of proper cause or a change of circumstances,” the Court of Appeals stated. “The record makes clear that ‘there are contested factual issues’ regarding plaintiff’s allegations that would warrant an evidentiary hearing under MCR 3.210(C)(8). … We therefore conclude that the trial court palpably abused its discretion by failing to hold an evidentiary hearing, and we remand for an evidentiary hearing on whether proper cause or a change of circumstances warrants revisiting the existing custody arrangement.” 

On remand, “we further instruct the trial court to expressly determine NGC’s established custodial environment …,” the Court of Appeals said. “It is unclear from the existing record whether an established custodial environment existed with one or both of the parties, so this determination must be made on remand before the trial court can properly determine whether plaintiff’s request to modify parenting time should be treated separately from her request to modify custody.” 

Accordingly, “we vacate the trial court’s order denying plaintiff’s motion to modify legal custody and parenting time, and remand for further proceedings …,” the Court of Appeals concluded.