Trial Court Improperly Relied on the Consequences of a Parent’s Voluntary Change of Custody
Opinion Published:10/27/2022 (Ronayne Krause, P.J., Jansen, Murray, JJ.)
Docket No. 360441
Wayne County Circuit Court
Holding: The trial court improperly relied on the consequences of a parent’s voluntary change of custody as being sufficient to constitute proper cause or a change of circumstances to order a change of custody. The Court of Appeals vacated the trial court’s order denying the father’s objections and affirming the referee’s recommended order, reinstated the parties’ prior custody order, and remanded to the trial court.
Facts: When the parties divorced, their consent judgment of divorce awarded them with joint legal and physical custody with alternating weeks of parenting time. The judgment also provided that the parties may mutually agree to modify the parenting time plan, but any modification would be temporary unless it specified in writing that it was permanent. When the COVID-19 pandemic began in March 2020, the parties mutually agreed that their six-year-old child would primarily live with the mother to protect their child’s health.
After more than a year of following this agreement, the mother moved for an order changing custody, parenting time, and child support. She argued that this agreement established a change of circumstances and changed their child’s established custodial environment to solely with her. The Friend of the Court held a hearing on the mother’s motion. At the hearing, the mother stated father was not involved in their child’s medical decisions or education. On the other hand, the father stated he only consented to the modification to protect their child from COVID-19 exposure. Following the hearing, the Friend of the Court referee issued a recommendation finding the mother demonstrated by a preponderance of the evidence there was proper cause or a change of circumstances warranting a review of custody and parenting time. The referee found it was in the child’s best interests to modify parenting time to reflect the agreement schedule.
The father objected to the referee recommendation, arguing the recommendation was in error because it (1) changed custody without an evidentiary hearing, (2) made no established custodial environment or best interest findings, and (3) applied an improper evidentiary burden. Further, the father argued that the recommendation was contrary to the parties’ judgment of divorce. The trial court denied his objections and upheld the referee order.
Key Appellate Rulings:
The trial court did not violate the parties’ consent judgment of divorce by considering the fact that the father agreed to a temporary change of custody in considering whether proper cause of a change of circumstances existed.
The father argued that the trial court could not consider his waiver of parenting time to protect the best interests of their child. The Court of Appeals disagreed. The court reaffirmed its holding in Theroux v Doerr, 137 Mich App 147, 149-150; 357 NW2d 327 (1984), that a parent who temporarily sacrifices parenting time to protect the best interests of their child should not be punished for doing so. However, the court acknowledged that the parties’ consent judgment of divorce never prohibited a temporary agreement from eventually constituting a change of circumstances. A trial court is not prohibited from considering the fact of the change when considering whether a change of circumstances occurred. In this case, the referee’s recommendation was based on the length of time that the agreement lasted, not the mere fact that the father agreed to a modification.
A parent’s established custodial environment is not deemed relinquished if they agree to a temporary change in parenting time and custody.
The referee’s recommendation made no findings regarding the parties’ child’s established custodial environment. The Court of Appeals reiterated that whether an established custodial environment exists is critical to making custody determinations. However, despite the trial court’s lack of findings, the Court of Appeals did not remand on this issue. Michigan has an important public policy in returning children to their prior custodial environment after a parent temporarily transfers custody. In this case, because the parties’ child had an established custodial environment with father and he voluntarily changed custody for his child’s best interests, his previous established custodial environment was not relinquished. Therefore, an established custodial environment remained with both parents as a matter of law.
A parent’s voluntary agreement to change custody for the best interests of their child cannot constitute proper cause or a change of circumstances to order a change of custody.
The trial court’s order in this case decreased the father’s overnights from approximately 182 overnights per year to 104 overnights per year. Based on this calculation, the change was the equivalent of relegating the father to being a “weekend parent,” which is really a change in custody. Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008). When the nature of a change is to change a child’s custody, a more stringent standard for proper cause or a change of circumstances applies. Lieberman v Orr, 319 Mich App 68, 83; 900 NW2d 130 (2017).
In this case, the referee’s recommendation concluded that the mother established proper cause or change of circumstances because the parties’ child primarily resided with mother for a fair amount of time and that the mother has more parenting and responsibilities while their child primarily resided with her mother. The Court of Appeals acknowledged that these findings were consequences of the father’s agreement to permit their child to primarily reside with her mother for their child’s health. While that fact can be considered, it alone does not constitute proper cause or a change of circumstances to order a change in custody.
