The trial court’s order denying the plaintiff-father’s motion to remove the lawyer-guardian ad litem (L-GAL) from this custody case is reversed and the matter is remanded for an evidentiary hearing, the Michigan Court of Appeals ruled in Jacob v Jacob.

The Oakland County Circuit Court in Jacob had issued numerous orders, most of which were related to custody and parenting time. One order also denied the plaintiff-father’s request to remove the L-GAL from the case and ordered him to pay the L-GAL more than $22,000 in fees.

The plaintiff appealed.

The Court of Appeals (Docket Nos. 344580, 344598, 344654, 344809, 344894, 347014 and 350162) held the trial court applied an incorrect burden of proof, violated the plaintiff’s right to a timely hearing and modified custody without establishing proper cause or a change of circumstances. Accordingly, the Court of Appeals vacated the parenting-time orders and an order awarding the defendant-mother sole legal and physical custody, and remanded the matter for reinstatement of the plaintiff’s parenting time.

Regarding the plaintiff’s motion to remove the L-GAL from the case, the Court of Appeals remanded for an evidentiary hearing as to the L-GAL’s fees. The panel also ordered the immediate reassignment of the case to a different judge.

Judges Elizabeth Gleicher, Michael Gadola and Anica Letica were on the appellate panel that issue the 23-page unpublished opinion. Judge Letica concurred in the result only. 

L-GAL Statutes

The plaintiff presented numerous arguments on appeal, including that the trial court erred by denying his motion to remove the L-GAL and ordering him to pay $22,748.48 in L-GAL fees.

Addressing this argument, the Court of Appeals explained that the appointment of an L-GAL in a custody proceeding is governed by the Child Custody Act - specifically MCL 722.24. That statute provides, in part:

“(1) In all actions involving dispute of a minor child’s custody, the court shall declare the child’s inherent rights and establish the rights and duties as to the child’s custody, support, and parenting time in accordance with this act.

(2) If, at any time in the proceeding, the court determines that the child’s best interests are inadequately represented, the court may appoint a [L-GAL] to represent the child. A [L-GAL] represents the child and has powers and duties in relation to that representation as set forth in … MCL 712A.17d. All provisions of … MCL 712A.17d, apply to a [L-GAL] appointed under this act.

(3) In a proceeding in which a [L-GAL] represents a child, he or she may file a written report and recommendation. The court may read the report and recommendation. The court shall not, however, admit the report and recommendation into evidence unless all parties stipulate the admission. The parties may make use of the report and recommendation for purposes of a settlement conference.”

Meanwhile, MCL 712A.17d outlines the powers and duties of an L-GAL. That statute provides, in part:

“(1) A [L-GAL’s] duty is to the child, and not the court. The [L-GAL’s] powers and duties include at least all of the following: (a) The obligations of the attorney-client privilege. (b) To serve as the independent representative for the child’s best interests, and be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child. … (g) To file all necessary pleadings and papers and independently call witnesses on the child’s behalf. (h) To attend all hearings and substitute representation for the child only with court approval. (i) To make a determination regarding the child’s best interests and advocate for those best interests according to the [L-GAL’s] understanding of those best interests, regardless of whether the [L-GAL’s] determination reflects the child’s wishes. The child’s wishes are relevant to the [L-GAL’s] determination of the child’s best interests, and the [L-GAL] shall weigh the child’s wishes according to the child’s competence and maturity. Consistent with the law governing attorney-client privilege, the [L-GAL] shall inform the court as to the child’s wishes and preferences.” 

 ‘Personally Enmeshed’ L-GAL

Here, the parties had stipulated to the appointment of Colleen Ronayne as L-GAL to represent the minor children, the Court of Appeals explained. The L-GAL’s duties, which were later set forth in the judgment of divorce, included meeting with the parents to discuss 1) parenting time over holidays, school breaks and birthdays; 2) the logistics of the children’s camp and extracurricular activity attendance; and 3) the schedule for vacation time.

“The parties’ stipulation defines Ronayne’s role as parenting-time facilitator or coordinator,” the Court of Appeals wrote. “Her job was to help the parties reach agreements without the need for trips to the courthouse. The stipulated order of appointment obliged Ronayne to work with Mother and Father to achieve a meeting of the minds.”

However, “Ronayne’s involvement has far exceeded those agreed-upon boundaries,” the Court of Appeals said. “For example, Ronayne withheld [one child’s] passport despite a timely request from Father to produce it. Ronayne’s conduct was inconsistent with the order then in effect. More globally, Ronayne has firmly and repeatedly asserted that [one child] is opposed to any parenting time with Father.”

An L-GAL is expected to advocate for a child’s best interests, the Court of Appeals said, noting these interests “include parenting time with both parents.”

In addition, the evidence showed that Ronayne became “personally enmeshed in [one child’s] relationship with Father, has encouraged [the child] to discontinue that relationship, and has actively advocated in favor of maintaining [the child’s] complete separation from her father,” the Court of Appeals said.

“The parties engaged Ronayne to assist in resolving parenting-time disputes, not to inflame them,” the Court of Appeals wrote. “Ronayne’s stated antipathy toward Father will not permit her to participate productively in the reunification we have ordered. Accordingly, her removal is warranted.” 

Order To Pay L-GAL Fees

Next, the Court of Appeals examined whether the trial court properly ordered the plaintiff to pay the L-GAL more than $22,000 in fees. The panel pointed out that MCL 722.24(4) says:

“After a determination of ability to pay, the court may assess all or part of the costs and reasonable fees of the [L-GAL] against 1 or more of the parties involved in the proceedings or against the money allocated from marriage license fees for family counseling services under …. A [L-GAL] appointed under this section shall not be paid a fee unless the court first receives and approves the fee.”

Here, the plaintiff had objected to the L-GAL’s fees on several occasions between January 2018 and July 2019, the Court of Appeals noted. “He challenged both the factual bases for the fees and their amount. There is no record of the resolution of his challenges as the circuit court discussed this issue in chambers and off the record. As a general matter, attorney fees must be reasonable, see, e.g., Pirgu v United Servs Auto Ass’n, 499 Mich 269 … (2016). An L-GAL’s fees also must be ‘reasonable.’ MCR 3.204(D); MCL 722.24(4).”

Furthermore, an L-GAL “shall not be paid a fee unless the court first receives and approves the fee,” the Court of Appeals said, again citing MCL 722.24(4).

“We vacate the L-GAL fee award,” the Court of Appeals concluded. “If Father renews his motion and adequately supports it, the court must conduct an evidentiary hearing and determine a reasonable attorney fee.”

Judicial Bias

Lastly, the plaintiff claimed the case should be reassigned to another judge because the trial judge was biased against him. The Court of Appeals agreed.

MCR 2.003(C)(1)(a) allows for the disqualification of a judge who “is biased or prejudiced for or against a party or attorney” and due process entitles a party to have an unbiased judge hear and decide a case, the Court of Appeals explained.

In this case, the trial court’s determination that the plaintiff “lacks all credibility” and its order that he “undergo a psychiatric examination despite the absence of record evidence of good cause for such an evaluation, persuade us that the risk of actual bias is too high to be tolerable in the case,” the Court of Appeals stated. “The [trial] judge repeatedly expressed deep-seated, negative opinions about Father and his character, and we do not reasonably expect that the judge could easily put those views out of her mind on remand. Even if the judge could view the case afresh with a clear mind, reassignment would be required to preserve the appearance of justice and impartiality on the part of the bench.”

After the Court of Appeals issued its opinion in Jacob, the defendant-mother filed a motion for reconsideration, which was denied.