The trial court in this case wrongly imposed restrictions on a father’s parenting time of his three minor children, the Michigan Court of Appeals has ruled.

The plaintiff-father in Mathewson v Mills (Docket No. 362798) argued the trial court erred when it considered information from outside the record and abused its discretion by imposing “significant conditions” on his parenting time “against the great weight of the evidence and contrary to the children’s best interests.”

The Court of Appeals agreed.

“[T]he trial court committed clear legal error when it failed to make a finding that proper cause or change of circumstance existed to merit conditions on plaintiff’s parenting time and abused its discretion when it made unwarranted findings and determined that the weight of the evidence supported the children’s best interests,” the Court of Appeals said.

Judge Michael J. Kelly, Judge Kathleen Jansen and Judge Thomas C. Cameron were on the panel that issued the unpublished opinion.

Background

The plaintiff and the defendant ended their relationship in December 2010 and agreed to joint legal and physical custody of their three children, HM, SM and AM. In October 2019, the parties entered into a new custody agreement in which they maintained joint legal custody but the plaintiff got full physical custody of HM and SM, and the defendant got full physical custody of AM. The parties also agreed on parenting-time changes.

In July 2021, the defendant asked the Montcalm County Circuit Court for a change in custody, parenting time and child support. She claimed the plaintiff entered into a domestic relationship with Tara Williams shortly after the revised custody order, that Williams was living with the plaintiff and the children were left in Williams’ care while the plaintiff was not home. The defendant alleged that Williams had “a long history” of drug abuse, that Williams and the plaintiff engaged in domestic violence, as well as numerous other allegations. The defendant’s allegations were ultimately unproven and Child Protective Services (CPS) determined that the reports of abuse and neglect were unsubstantiated.

The trial court held that an established custodial environment existed with both parents. After analyzing each of the best-interest factors in MCL 722.23, the trial court determined that all but two factors - (b) the capacity and disposition to give the children love, affection, and guidance and (j) willingness to facilitate a relationship with the other parent - weighed equally between the plaintiff and the defendant.

Regarding factor (b), the trial court found it was “hard to explain” why school personnel found more than 15 absences to be normal and that neither they, nor the social workers, “had anything negative to say regarding plaintiff.” The trial court also expressed concern about the plaintiff’s behavior toward the children when he drank alcohol or used marijuana. As for factor (j), the trial court found the plaintiff was “just not very fond of defendant mother” and that he “made it difficult or failed to encourage a close and continuing parent-child relationship between the boys and mom.” The trial court further said that it “had no doubt that Williams exacerbated the communication issue” and that it would “do what it [could] to remedy that going forward.”

In the end, the trial court did not find by clear and convincing evidence that a change in custody was warranted. However, the trial court issued modifications to the October 2019 order. The trial court also imposed the following restrictions on the plaintiff’s parenting time: “There shall be no unsupervised contact with Plaintiffs wife, Tara Mathewson. Mrs. Mathewson shall not transport the children to school, medical appointments, or extracurricular activities. While the children are with Plaintiff Father, there shall be no drugs or alcohol in Plaintiff’s home, including any finished marijuana product. When the children are returned to Plaintiff Father, he is subject to a drug and alcohol screening.”

The plaintiff appealed.

Restrictions Reversed

On appeal, the plaintiff argued the trial court erroneously considered facts from its own investigation not presented on the record, and that Williams’ qualification as a recovery coach was not relevant to the complaint for custody but appeared to be a means for the trial court to assess her credibility.

Addressing the plaintiff’s contentions, the Court of Appeals first examined the concept of judicial notice under MRE 201(c). The purpose of judicial notice is to save “time, trouble and expense which would be lost in establishing in the ordinary way facts which do not admit of contradiction,” the appeals court explained. However, in this case, the trial court “did not seek out information within its own files and records, but instead asked staff at a district court whether they knew of or ‘would vouch for’ Williams’s official participation as a recovery coach.”

The trial court “plainly erred when it considered information that was not allowable under judicial notice and not otherwise presented on the record” and “by conducting its own investigation and making evidential inquiries outside the evidence presented on the record,” the Court of Appeals said. This error was not harmless because the trial court “appears to have improperly used the information to assess Williams’s credibility.”

The Court of Appeals then turned to the plaintiff’s claim that the trial court erred by imposing restrictions on his parenting time and did not apply the proper three-tiered procedure for assessing parenting time.

“The best interests of the children involved govern decisions related to custody issues, including parenting time,” the Court of Appeal said, citing MCL 722.27a(1). Likewise, the trial court has an “obligation to avoid changes that might disrupt the child’s custodial environment.”

According to the Court of Appeals, three cases in particular “guide trial courts when faced with requests for changes to custody and parenting time.” Those cases are:

• Kaeb v Kaeb, 309 Mich App 556 (2015) - Kaeb applies when a party requests the imposition of a condition on parenting time. The Kaeb panel held that “a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial court’s determination that the condition in its current form no longer serves the child’s best interests.”

• Vodvarka v Grasmeyer, 259 Mich App 499 (2003) - Vodvarka sets forth the requirement that the proponent of a change in custody demonstrate a proper cause or change in circumstances sufficient to revisit a custody issue.

• Shade v Wright, 291 Mich App 17 (2010) - Shade provides that, when a requested change involves only parenting time and would not alter the established custodial environment, the definitions of proper cause and change of circumstances in Vodvarka are inapplicable

Here, the defendant asked the trial court to impose conditions on the plaintiff’s existing parenting time. Therefore, “the burden was on defendant to demonstrate a proper cause or change in circumstances sufficient to justify the change and that parenting time was not serving the children’s best interests before the change,” the Court of Appeals noted.

The plaintiff argued the trial court erred by considering only the best-interest factors in the Child Custody Act of 1970, but not those for parenting time, the Court of Appeals explained. “However, [b]oth the statutory best interest factors in the Child Custody Act [of 1970], MCL 722.23, and the factors listed in the parenting time statute, MCL 722.27a[(7)], are relevant to parenting time decisions. Custody decisions require findings under all of the best interest factors, but parenting time decisions may be made with findings on only the contested issues.”

Meanwhile, MCL 722.27a(7) says the trial court may consider the listed best-interest factors for parenting time, the Court of Appeals observed. “In this case, the trial court committed clear legal error when it did not discuss whether a proper cause or change of circumstances existed since entry of the October 2019 custody order that rendered imposition of the parenting-time conditions necessary,” the appeals court wrote. “In fact, plaintiff and Williams entered into a relationship before October 2019, from which time both took measures to improve themselves as parents through classes and abstention from alcohol and drug use other than plaintiff’s marijuana use. They participated in counseling and school-related sessions with the boys, and the boys’ performance was gradually improving. CPS investigations completed since October 2019 found allegations of abuse or neglect to be unsubstantiated.”

In addition, the trial court “minimally considered how it believed that the restrictions regarding Williams were in the best interests of the children,” the Court of Appeals said. “However, just as the trial court was vocally skeptical that plaintiff or Williams actually improved their lives and behaviors since the entry of the October 2019 order, we are equally suspicious that the trial court’s decision to impose restrictions regarding Williams’s participation in parenting went beyond a mere credibility determination and was driven by passion or bias.”

The defendant alleged several shortcomings of Williams in her complaint for custody, “but nearly all of these were left unproven,” the Court of Appeals stated. “The trial court also acknowledged that the testimony showed that Williams was clean from drug use and serving as a recovery coach, though it added multiple times that it was ‘stunned’ by that. … In all, the trial court appeared to be overly concerned about holding Williams’s past against her, as well as plaintiff for choosing to enter into a relationship with a recovering drug addict.”

In conclusion, the Court of Appeals said the trial court’s assessment of Williams’ motivation was “not only irrelevant to the determination but further suggests that the trial court held a bias against her, presumably on the basis of her former addiction and the turmoil it caused. To that end, the trial court abused its discretion and imposed conditions regarding Williams that went against the great weight of the evidence.”