Threshold Questions Not Addressed, Custody Case Wrongly Referred To FOC
The trial court erroneously referred this custody case to the Friend of the Court without first determining whether there was proper cause or a change in circumstances that necessitated a review of custody and parenting time, the Michigan Court of Appeals has ruled.
In Assemany v Assemany (Docket Nos. 371694 and 371832), the plaintiff-father appealed the Lapeer County Circuit Court’s order referring the case to the Friend of the Court (FOC) regarding legal custody and parenting time.
The Court of Appeals reversed and remanded, finding the trial court “committed clear error” by not addressing the threshold question of whether proper cause or a change in circumstances warranted referring the case to the FOC.
Further, “[g]iven the circumstances of this case, the error was not harmless,” the Court of Appeals said. “On remand, we direct the court to make this threshold determination, using the proper standards and considering the best-interest factors, before deciding whether the case warrants referral to the FOC.”
Judge Michael F. Gadola, Judge Michelle M. Rick and Judge Philip P. Mariani were on the panel that issued the unpublished opinion.
Background
The plaintiff-father and the defendant-mother have three children together, ALA, AGA and ARA. The parties divorced in 2020 pursuant to a consent judgment of divorce. (Note: This appeal solely concerned the parties’ youngest child, ARA, because ALA and AGA had reached the age of majority.)
The Lapeer County trial court, as part of the consent judgment, awarded the father sole legal and physical custody. At the time, the mother lived in Florida and the father lived in Michigan. The mother was allowed to exercise unsupervised parenting time in Michigan or Florida. “Extensive litigation” subsequently arose and it primarily centered on the mother’s failure to comply with the conditions that had been imposed regarding custody and parenting time.
The mother relocated to Michigan on November 3, 2021. In response to a motion filed by the father, the trial court entered an order on June 1, 2022 that continued the father’s sole legal and physical custody, and stated that no further reunification therapy between ALA, AGA and the mother was necessary and it was within ALA’s and AGA’s discretion to engage with her. Meanwhile, reunification therapy remained mandatory for the mother and ARA, as well as parenting time with ARA on a graduated schedule that depended on the mother maintaining sobriety and participating in therapeutic visitation sessions.
On February 28, 2023, the trial court entered an order regarding noncustodial parenting time after an evidentiary hearing. The order stated, in part: “(a) The parenting time provisions of the June 1, 2022 Order Regarding Custody, Parenting Time, Support are suspended. Notwithstanding the foregoing, Plaintiff father shall continue to have sole legal custody and sole physical custody of the minor children of the parties, and child support shall continue to be set at zero. … (c) The parties, along with Samantha Hazelton, the individual therapist for [ARA] agree that it is in [ARA’s] best interests that any parenting time plan with Defendant mother be suspended at this time and that [ARA] have a break from working on parenting time with Defendant mother.”
The order also prohibited the mother from communicating or interacting with ARA during the period of suspension, with the exception of letters permitted by Hazelton. In addition, a reunification plan was to be discussed at the end of the 2023 school year.
On May 31, 2024, the mother filed a verified motion to reinstate parenting time, joint legal custody and other relief. She claimed the father was responsible for alienating her from the children and that Hazelton, in her capacity as ARA’s therapist, assisted the father in doing so. The mother also alleged that, although she had maintained her sobriety and engaged in reunification therapy since the entry of the consent judgment of divorce, she remained barred from exercising her parenting time. Additionally, the mother observed that Hazelton had been ARA’s therapist since March 2022 after ARA’s previous therapist was removed and that Hazelton subsequently authored “bogus” reports regarding ARA’s care and acted “in an unprofessional manner.” The mother further alleged the father removed ARA from school without her knowledge, and that she was concerned for ARA’s mental health and well-being. To support her allegations regarding Hazelton, the mother provided a report from Jane Kessler, a clinical psychologist, who stated that she had “concerns” about Hazelton’s role as ARA’s therapist based on her review of a letter written by Hazelton in December 2023.
The trial court held a hearing on the mother’s motion. At the hearing, the father’s lawyer indicated that she had contacted the mother’s attorney to request an adjournment because a complete copy of the motion and the relevant exhibits had not been received. The mother’s attorney refused to adjourn the matter. The trial court responded by indicating the only openings available in the court’s schedule were several months later, and suggested the case be handled by an FOC referee, who could “hear all this and make a recommendation.” The father’s lawyer then asserted the mother’s attorney failed to make a threshold showing to warrant a review of the parties’ legal custody and parenting time arrangement. The trial court, “believing the parties were solely contesting parenting time,” stated it was “satisfied that there is a significant change of circumstances if nothing but time that’s gone by. This case has been pending for over five years. So, at this time, I am going to refer it to the Referee for a hearing on parenting time.”
Thereafter, the mother’s attorney clarified that she was also seeking joint legal custody of ARA. The father’s lawyer responded that it was a violation of due process for the mother’s attorney to rely on an exhibit that was not presented to opposing counsel to make this argument, in addition to relying on that exhibit to establish the threshold showing of proper cause or a change in circumstances. To this argument, the trial court stated, “Yeah, [father is] gonna get a hearing, so that’s his due process. I am simply referring it to the Referee for a hearing … and it’ll include the issue of joint legal. You can argue it.”
On June 10, 2024, the trial court entered an order referring the case to the FOC regarding legal custody and parenting time.
The father appealed.
Case Precedent
On appeal, the father argued the trial court improperly referred the case to the FOC without adequately addressing whether there was proper cause or a change in circumstances warranting a re-examination of legal custody or parenting time.
“We agree,” the Court of Appeals said, citing MCL 722.27(1)(c) and pointing out that “a custody order or parenting time order may only be altered ‘for proper cause shown or because of change of circumstances’ if it is in the best interest of the child.”
If the trial court finds that a proper cause or change in circumstances exists, “then it is required to ‘determine whether there is an established custodial environment with one or both parents before making any custody determination,’” the Court of Appeals said, citing Kessler v Kessler, 295 Mich App 54 (2011). “[A] party who seeks to change an established custodial environment of a child is required to show by clear and convincing evidence that the change is in the child’s best interests.”
Further, if the proposed modification “does not change the established custodial environment, then ‘the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests,’” the Court of Appeals explained, citing Shade v Wright, 291 Mich App 17 (2010).
Before custody can be modified, the trial court “must determine whether the change of custody is in the children’s best interests and … make specific findings of fact regarding each of the twelve statutory best-interest factors,” the Court of Appeals emphasized, citing Johnson v Johnson, 329 Mich App 110 (2019). “If a trial court inadequately adjudicates a child-custody matter, and the resulting error is not harmless, the proper remedy is to remand for reassessment or for a new child custody hearing. … On remand, a trial court should examine up-to-date information, including the child’s present and reasonable preferences, in addition to any alternate changes in circumstances arising since the original custody order.”
Next, the Court of Appeals looked to Vodvarka v Grasmeyer, 259 Mich App 499 (2003), where the panel held the threshold showing of proper cause or change in circumstances must be established prior to altering custody. The appeals court explained the Vodvarka panel ruled that “to establish ‘proper cause’ necessary to revisit 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 appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being.”
The Vodvarka panel further said that “in order 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 well-being, have materially changed,” the Court of Appeals wrote. “Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, the 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.”
According to the Court of Appeals, “[t]his Court has resolved that an evidentiary hearing is not required to answer the initial factual question of whether proper cause or change in circumstances exists, because ‘[o]ften times, the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.’”
‘Threshold Question’ Not Addressed
In the present case, the trial court “failed to adequately consider, both during the motion hearing and in its subsequent order referring the underlying matter to the FOC, whether proper cause or a change of circumstances had arisen to justify revisiting parenting time and legal custody as established in the consent judgment of divorce,” the Court of Appeals said. “Instead, the court simply stated that it was ‘satisfied that there is a significant change of circumstances if nothing but time that’s gone by.’ It further noted that ‘[t]his case has been pending for over five years.’”
The trial court, in reaching this determination, “neglected to consider any of the substantive allegations discussed in [the] mother’s motion,” the Court of Appeals observed. “It should have considered those allegations in order to resolve whether there was a change in circumstances to justify re-examining custody or parenting time following the issuance of the February 2023 order. … Moreover, the court disregarded the twelve statutory best-interest factors relevant to a determination that there was proper cause to revisit a custody order.”
The trial court also erroneously determined that the “lesser legal standard” stated in Shade “governed the underlying legal custody and parenting time issues,” the Court of Appeals said. “The Shade Court resolved that the Vodvarka threshold was inapplicable to a request solely pertaining to a change in parenting time, unless the proposed modification resulted in a change in the established custodial environment. … The Shade Court further clarified that ‘the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should take into account in making determinations regarding modification of parenting time.’”
Although the passage of time may be the type of “normal life change” that would permit a reconsideration of parenting time, “in the instant matter, [the] mother requested a modification of parenting time and a change in legal custody,” the Court of Appeals stated. “Furthermore, the trial court neglected to determine whether amending the parenting time agreement could result in a change of the established custodial environment to warrant the application of the Vodvarka standard. Indeed, the court did not comment on the existence of an established custodial environment at all. However, considering that [the] mother maintained minimal contact with ARA for several years, and [the] father has maintained sole legal custody and sole physical custody since the initiation of the underlying custody proceedings, it is likely that even a modification of parenting time alone would mandate an examination under Vodvarka. Regardless, because the contested order referred the matter to the FOC as to both legal custody and parenting time, the trial court erred when it neglected to apply the more stringent proper-cause-or-change-of-circumstances standard stated in Vodvarka to the parties’ dispute.”
In conclusion, the Court of Appeals ruled that the trial court “committed clear error by failing to adequately address the threshold question of whether proper cause or a change in circumstances warranted referring this case to the FOC” and found this error was “not harmless.” Accordingly, the Court of Appeals directed the trial court on remand to make the proper threshold determination, using the correct standards and considering the best-interest factors, before deciding whether the case necessitated referral to the FOC.
