The trial court erroneously suspended the plaintiff-father’s supervised parenting time, the Michigan Court of Appeals has ruled.

In Dekarske v Lopez (Docket No. 366704), the Ingham County Circuit Court conducted an evidentiary hearing related to child custody and visitation. The trial court awarded the plaintiff-father and the defendant-mother joint legal custody of their child, CAD, and awarded the defendant-mother sole physical custody.

After addressing the best-interest factors in MCL 722.23 and the parenting-time factors in MCL 722.27a(7), the trial court held that parenting time with the plaintiff was in CAD’s best interests. However, the trial court also suspended the plaintiff’s parenting time until he surrendered access to the contents of three encrypted (password protected) USB thumb drives.

The plaintiff appealed, challenging the suspension of his parenting time.

The Court of Appeals vacated the trial court’s decision and remanded the case.

“Because clear and convincing evidence did not demonstrate that supervised parenting time would endanger CAD or that suspending parenting time was in CAD’s best interests, we vacate the suspension of plaintiff’s supervised parenting time,” the Court of Appeals said.

Judge James Robert Redford, Judge Douglas B. Shapiro and Judge Christopher P. Yates were on the panel that issued the unpublished opinion.

Background

The plaintiff pleaded no contest to fourth-degree criminal sexual conduct in 2000, for which he served five years of probation and completed a sexual rehabilitation program.

The plaintiff disclosed his CSC conviction to the defendant when they began dating “but misrepresented the underlying circumstances.” The plaintiff told the defendant that when he was 17 years old, he sexually abused an 11-year-old girl. The truth, however, was that the plaintiff sexually abused his 3-year-old half-sister approximately 30 times.

The plaintiff and the defendant began living together in 2017. At the time, the defendant had a 9-year-old son, BL, who also lived with them. In 2019, the defendant gave birth to the parties’ child, CAD.

In 2022, the defendant discovered the “presentencing report documents” that set forth the true nature of the plaintiff’s CSC conviction and also sexual assaults he committed on two other children. The defendant was concerned the plaintiff had sexually abused CAD and BL, so she took photos of the documents and three USB thumb drives to the police, and she contacted Children’s Protective Services. The parties’ relationship ended around this time.

A police detective testified that she contacted the plaintiff to obtain the passwords to the thumb drives, to be sure there was nothing illegal on them before returning them to the plaintiff. The plaintiff made about 60 attempts to communicate with the detective and, when they finally talked, the plaintiff “became very irate” and refused to provide any passwords, telling the detective that she needed to contact his lawyer and to get a search warrant.

The detective further testified there was no criminal investigation regarding the thumb drives and she did not have probable cause for a warrant. She attempted to forensically interview 4-year-old CAD, but could not because he became “too scared.” The detective did successfully interview BL, who did not disclose any sexual assault or physical abuse.

The plaintiff then filed the present action to establish custody and parenting time for CAD. The Ingham County trial court held an evidentiary hearing. The defendant requested that the plaintiff receive supervised parenting time.

The plaintiff denied sexually assaulting CAD or BL. He testified that he did not desire a sexual relationship with a minor and acknowledged that, according to the rehabilitation program he had completed, he was still considered a risk to young children. Regarding the thumb drives, the plaintiff “admitted that one of the drives was the backup for his computer, but he denied having the passwords or telling the police that he had the passwords.”

The trial court awarded the parties joint legal custody of CAD and awarded the defendant sole physical custody. The trial court held that parenting time with the plaintiff was in CAD’s best interests. The trial could not find by a preponderance of the evidence that the plaintiff had sexually assaulted CAD or BL.

However, the trial court observed the plaintiff posed a “potential risk” to CAD and ordered that his parenting time be supervised. The trial court acknowledged the plaintiff had “good reason not to divulge any passwords to law enforcement, but concluded that plaintiff knew what was on the drives, knew the passwords to the drives, and believed there was something on the drives that he did not want the police to see.” The trial court further concluded that it needed “to know whether or not there’s child pornography” on the thumb drives “because if there is I don’t think you deserve any contact with your child.” The trial court also said that it would “make us feel better about going forward as to when we decided it’s going to be safe to allow you to have unsupervised time with your son.”

Accordingly, the trial court ordered the plaintiff’s parenting time be suspended until he 1) surrendered access to the contents of the thumb drives and 2) no criminal activity or pornography was found.

The plaintiff appealed.

‘Impermissible’ Action

On appeal, the plaintiff argued the trial court failed to find by clear and convincing evidence that supervised parenting time would endanger CAD’s physical, mental or emotional health in the absence of knowledge of the content of the thumb drives and, as a result, the trial court’s conditional suspension of his supervised parenting time was erroneous.

“We agree,” the Court of Appeals said.

The trial court was unable to find by a preponderance of the evidence that the plaintiff had sexually assaulted CAD or BL, the Court of Appeals observed. “Further, the trial court unambiguously determined that it was in CAD’s best interest to maintain an ongoing bond with plaintiff, so it ordered that plaintiff must receive four hours of parenting time a week. However, the trial court nonetheless believed there was a risk that plaintiff might harm CAD if left alone with the child, and therefore ordered that plaintiff’s parenting time be supervised. The record evidence supports the trial court’s finding that plaintiff should not have unsupervised parenting time, and plaintiff does not challenge on appeal whether his parenting time should be supervised.”

Rather, “this appeal concerns whether the trial court erred by suspending plaintiff’s supervised parenting time until he turns over the passcodes for the three thumb drives,” the Court of Appeals explained. “In suspending plaintiff’s parenting time, the trial court failed to identify any harm plaintiff could perpetrate on CAD under close supervision. The trial court did refer to an incident when plaintiff failed to ‘follow the ground rules’ at a supervised parenting time visit by taking CAD to the bathroom alone. There is no indication, however, that anything inappropriate took place in the bathroom. Further, that parenting time visit was supervised by plaintiff’s brother, and under the trial court’s order, plaintiff’s parenting time will now be supervised by an unrelated, third-party parenting time agency.”

The trial court indicated that it had “to know whether or not there’s child pornography on there because if there is [the trial court did not] think [plaintiff] deserve[d] any contact with [his] child,” the Court of Appeals said. “However, the inquiry is what is in CAD’s best interests, not what a parent ‘deserves.’”

In addition, the trial court also expressed that knowing the contents of the thumb drives would “make us feel better about going forward as to when we decided it’s going to be safe to allow you to have unsupervised time with your son,” the Court of Appeals noted. While it is true that the thumb drive contents may be relevant to whether the plaintiff’s parenting time could ever be unsupervised, “in the absence of a threat of harm posed by supervised parenting time, the suspension of plaintiff’s parenting time appears to be intended as an impermissible sanction or an impermissible attempt to compel compliance with a court order.”

Based on the foregoing, the trial court “failed to find by clear and convincing evidence that supervised parenting time would endanger CAD’s physical, mental, or emotional health in the absence of knowledge of the content of the thumb drives,” the Court of Appeals held. “Therefore, we conclude that the trial court’s suspension of plaintiff’s supervised parenting time conditioned on surrendering access to the thumb drives was clearly erroneous. The trial court’s conditional suspension of plaintiff’s supervised parenting time is vacated.”