The evidence in a custody action demonstrated that a change in circumstances had occurred and, therefore, the trial court wrongly denied a mother’s motion to modify a custody order, the Michigan Court of Appeals has ruled, instructing the trial court to analyze the best interest factors on remand.

In Ainsworth v Dunkel (Docket No. 344311), the Court of Appeals held there was sufficient evidence to establish a change in circumstances or proper cause, concluding the defendant-mother showed the circumstances surrounding the child’s custody had “materially changed” since the last custody order had been entered.

“The court abused its discretion in denying defendant’s motion for a modification of custody insofar as the change in circumstances demonstrated by the evidentiary record warranted a best interest hearing,” the Court of Appeals wrote.

Judges Michael J. Riordan and Amy Ronayne Krause joined the unpublished, per curiam opinion. Judge Brock A. Swartzle concurred in the result only.

Custody & Parenting Time

The plaintiff and the defendant were romantically involved as teenagers. In 2011 at age 15, the defendant gave birth to a child, LDD. The plaintiff was the child’s father. From 2011 to 2014, the defendant cared for and lived with LDD. The defendant also had another child, LDD’s half-sister.

In 2014, Child Protective Services (CPS) filed a complaint against the defendant for failing to protect her children from her boyfriend at the time. The Department of Health and Human Services (DHHS) eventually took jurisdiction over the defendant’s children, placing LDD’s half-sister in a foster home and placing LDD with the plaintiff-father.

In August 2014, plaintiff filed a complaint in Ingham County Circuit Court requesting physical custody of LDD and reasonable parenting time. In October 2014, a conciliator recommended the plaintiff be awarded sole legal custody of LDD because the child benefitted from residing with the plaintiff’s parents and receiving support from them. The conciliator also recommended the plaintiff be awarded parenting time. In December 2016, the trial court terminated its jurisdiction over LDD.

The defendant then moved for a change of custody in April 2017, asserting that because her issues with CPS and DHHS were resolved, a change of circumstances had occurred. The trial court denied the motion but granted the defendant’s request to change her parenting-time schedule. In June 2017, the trial court ruled the defendant’s change in behavior and parenting skills did not justify a change in the custodial environment of LDD. According to the trial court, the proper legal analysis focused on a change of circumstances or proper cause in the child’s life – not the parent’s life. Subsequently, the trial court denied the defendant’s motion for a change in custody but granted her request to modify the parenting-time schedule to allow overnight visits, subject to certain conditions.

In February 2018, the defendant alleged the plaintiff was not complying with the visitation schedule. The plaintiff claimed that he had concerns about LDD visiting the defendant, including that the defendant’s boyfriend was allegedly around during visitations although a no-contact order with him had been issued, and that a criminal background check revealed the boyfriend had a criminal record.

In April 2018, the defendant filed a motion to terminate the no-contact order, to modify parenting time and to authorize a change in physical custody. The defendant argued she was no longer under investigation by CPS and the issues that led to the initial investigations had been resolved. In her motion, the defendant claimed the plaintiff had abandoned LDD, asserting that a private investigator had observed the plaintiff’s parents frequently caring for LDD and dropping her off at school, among other things. The defendant also maintained the plaintiff had refused numerous requests for scheduled parenting time. While the trial court entered an order granting the defendant additional parenting time, it indicated it would hear the motion for a change of custody at a later date.

At an April 16, 2018 hearing, the defendant requested the no-contact order with her boyfriend be lifted because it hindered her ability to fully exercise parenting time with LDD. The trial court ordered the removal of the no-contact order and allowed the defendant to amend parenting time.

In May 2018, on the same day the trial court denied the plaintiff’s motion for reconsideration, the defendant filed a motion to hold the plaintiff in contempt for refusing her parenting time and asked to make up the weekends that she had missed with LDD. The defendant argued there was proper cause to modify the order because a change in circumstances had occurred.

The trial court held a hearing and denied the defendant’s motion for a change of custody. According to the trial court: “The mere fact that you were able to document that the grandparents take the child to and from school is insufficient for the Court to conclude that there’s a proper cause or change in circumstance that would justify a re-evaluation of the best interest factors.”

“Material” Change In Circumstances

On appeal, the defendant claimed the changed circumstances that warranted a change in custody included: 1) the plaintiff’s parents were caring for LDD regularly; 2) the plaintiff did not appear to be living with LDD; 3) the plaintiff had moved in with his girlfriend; and 4) the plaintiff’s parents often cared for LDD overnight.

The Court of Appeals agreed with the defendant’s arguments. “We conclude that defendant did establish that a change in circumstances existed. In Vodvarka [v Grasmeyer, 259 Mich App 499 (2003)], this Court defined what a ‘change of circumstances’ means, and explained what evidence is appropriate for a trial court to consider in making its determination.”

Citing Vodvarka, the Court of Appeals said that in order to establish a “change in circumstances,” the moving party “must prove that, since the entry of the last order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. … [T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors.”

The Court of Appeals continued by explaining that because a “change of circumstances” requires a “change,” the circumstances must be compared to some other set of circumstances. “And since the movant is seeking to modify or amend the prior custody order, it is evident that the circumstances must have changed since the custody order at issue was entered. Of course, evidence of the circumstances existing at the time of and before entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. As a result, the movant cannot rely on facts that existed before entry of the custody order to establish a ‘change’ of circumstances.”

Here, the trial court’s order of October 2, 2017, was the last order regarding the custody of LDD, the Court of Appeals noted, thereby making it the “the custody order at issue” for the purpose of determining whether a change of circumstances had occurred. Further, the Court noted that all the “circumstances” the defendant alleged had “changed” had indeed occurred after the October 2, 2017 amended custody order. “[T]he record indicates a significant material change in circumstances due to plaintiff no longer residing under the same roof as LDD. The allegations outlined in the private investigator’s report about the significant care and support plaintiff’s parents provided LDD is sufficient to establish a change in circumstances under Vodvarka.”

The defendant also argued that LDD’s grandparents’ “extensive care” for her and the plaintiff’s moving out of his parent’s home qualified as proper cause. “We agree,” the Court of Appeals stated. “As defendant indicates, plaintiff’s abstention from parenting meets the threshold in Vodvarka to establish proper cause. Residing in a different home than LDD and absenting himself from primary caretaker duties does not indicate the presence of a strong affection or emotional tie with LDD, nor a serious disposition to provide love, affection, guidance or a stable home environment to the child. … What is in question is whether plaintiff’s lack of care is of such a magnitude to have a significant negative effect on LDD’s well-being. … [I]t is the opinion of this Court that plaintiff’s retreat from parenting poses significant impacts on the child’s well-being.”

In conclusion, the Court of Appeals rejected the defendant’s argument that an evidentiary hearing was required under MCR 3.210(C)(8), ruling this issue was moot. “We find that the evidence clearly establishes proper cause or change in circumstances, and therefore no further evidentiary hearing is required. Rather, the trial court must proceed to analyze the best interest factors.”

Accordingly, the Court of Appeals reversed and remanded the matter for an analysis of the statutory best interest factors.