Child custody cases regularly require the filing of an emergency motion - which is what happened in Brenner v Kerkstra (Docket No. 346078). In Brenner, the appeal by right deadline had been missed, leaving an application for leave to appeal as the only option for appellate review.

Because the trial court had ordered a complete change of custody from the father to the mother in Brenner, the Speaker Law Firm filed an emergency appeal on the father’s behalf on October 24, 2018. We requested a decision from the Michigan Court of Appeals by November 14, 2018.

The Court of Appeals, however, sat on the motion for several months, eventually granting the application for leave on March 8, 2019. The appellate court ultimately ruled in our client’s favor on July 23, 2019.

The Brenner case is an unfortunate example of the Court of Appeals inexplicably delaying a ruling on an emergency motion. Here’s what happened in the case.

Background

The plaintiff mother and the defendant father were never married. They had one child together in 2006. The plaintiff and the defendant ended their relationship about one year after the child was born and eventually married other people. The trial court had ordered that the plaintiff have sole legal and physical custody of the child and that the defendant have “reasonable parenting time.”

In 2017, Children’s Protective Services (CPS) conducted an investigation regarding allegations that the plaintiff’s then-husband, Jacob Proper, possessed material depicting sexually explicit content of children. When the Michigan State Police (MSP) executed a search warrant at the plaintiff’s home in February 2017, Proper acknowledged that he had posted photos of minors online and that he had sexually abused the parties’ child for approximately two years. The MSP also reportedly found visual evidence of Proper sodomizing the family dog. Law enforcement and CPS told the plaintiff to not allow Proper to have any contact with the child.

On March 13, 2017, the defendant notified CPS that he observed Proper at the plaintiff’s house on March 8, 2017, when the child was present. The defendant also informed CPS the child had told him that Proper picked him up from school after the search warrant had been executed in February. As a result, the Allegan County Circuit Court removed the child from the plaintiff’s home and placed the child in the defendant’s care and custody.

On December 15, 2017, the defendant filed a motion to change custody, requesting legal and physical custody of the child. He alleged that: 1) the plaintiff exposed the child to Proper in contravention of the no-contact order; 2) a substantial change in circumstances had occurred; 3) it was not in the child’s best interests to reside with the plaintiff; 4) the child had an established custodial environment with him; and 5) he was able to provide proper care and custody of the child.

The defendant also filed a motion for an ex parte order to maintain the “status quo” regarding his primary physical custody of the child and the child’s enrollment at Hudsonville Christian School.  The trial court granted the defendant’s motion, pending a hearing on the motion to change custody. The trial court ordered that the plaintiff have parenting time and that the child continue to attend classes at Hudsonville Christian School.

The trial court ultimately granted the parties joint legal and physical custody of the child.

Clear Legal Error

On appeal, the defendant argued that the trial court erred by changing the child’s established custodial environment with the defendant without applying the required clear and convincing evidence standard.

“We agree that the trial court committed clear legal error,” the Court of Appeals said.

“In this case, we cannot find in the record where the trial court made a specific finding regarding the existence of proper cause or a change of circumstances,” the Court of Appeals wrote. “Although the trial court indicated that the parties agreed that the sexual abuse allegations against Proper caused this matter to be reviewed, the trial court did not determine whether the sexual abuse allegations constituted proper cause or a change of circumstances. Although the child’s removal from plaintiff’s care and custody can be sufficient to establish a change of circumstances, … the trial court committed a clear legal error by failing to apply the proper legal framework and failing to make a reviewable finding regarding proper cause or a change of circumstances.”

In addition, the trial court did not make specific findings regarding the child’s established custodial environment at the time of the motion hearings, the Court of Appeals explained. “The trial court found that the child had an established custodial environment with defendant since the child’s removal from plaintiff’s care in March 2017. The trial court also found that the child previously had an established custodial environment with plaintiff. Ultimately, the trial court found that the parties had been providing a ‘joint-type arrangement.’ The trial court did not specifically determine whether the child had an established custodial environment with both plaintiff and defendant at the time of the motion hearings or whether the child had a sole established custodial environment with defendant because the child had not resided with plaintiff since March 2017. Therefore, the trial court committed a clear legal error by failing to make a reviewable finding regarding the existence of an established custodial environment. Based on the lack of findings by the trial court on this issue, we decline to make a determination as to whether an established custodial environment existed with respect to plaintiff, defendant, or both parties.”

Further, the Court of Appeals observed that the trial court: 1) did not make a specific finding about whether the defendant’s proposed custody change would modify the child’s established custodial environment and 2) failed to articulate which standard it applied when considering the best interest factors in MCL 722.23.

“Therefore, the trial court’s clear legal errors require remand for further consideration under the proper legal framework,” the Court of Appeals said. “The trial court should first determine whether defendant established proper cause or a change of circumstances to modify the custody order. The trial court should then determine with whom the child had an established custodial environment at the time of the final motion hearing and whether sole legal and physical custody with defendant modified an established custodial environment. If trial court determines that defendant’s request will alter an established custodial environment, the trial court should apply the clear-and-convincing-evidence standard. However, if the trial court determines that defendant’s proposed change will not modify an established custodial environment, defendant must prove by a preponderance of the evidence that the change is in the child’s best interests.” 

Best Interest Factors

The defendant further argued that the trial court abused its discretion by not considering all the statutory best interest factors in MCL 722.23. Specifically, the defendant maintained the trial court failed to consider best interest factor (h), “the home, school, and community record of the child.”

The defendant also challenged the trial court’s findings regarding the following best interest factors:

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

The Court of Appeals looked at each factor, noting the trial court weighed factors (f), (g) and (j) equally between the parties and found that the child’s preference pursuant to factor (i) weighed in favor of joint custody. The trial court, however, did not make any findings regarding factor (h), the appellate court observed.

Upon examining all the factors, “the trial court’s findings of fact were not against the great weight of the evidence,” the Court of Appeals stated. “The trial court placed significant weight on the child’s preference for a custody arrangement with both parties. Additionally, the trial court’s findings, particularly that best-interest factors (f), (g) and (j) weighed equally between the parties, were supported by the evidence on the record. Therefore, the trial court did not abuse its discretion by granting the parties joint legal and physical custody of the minor child.”

However, “we conclude that the trial court clearly erred by failing to consider best interest factor (h),” the Court of Appeals wrote. “The trial court did not make any factual findings regarding best-interest factor (h) (the child’s home, school, and community record). Although several witnesses, including plaintiff and defendant, testified regarding the child’s performance at school and his involvement in sports, extracurricular activities, the 4-H program, religious programs, and friend group activities, the trial court did not determine how the custodial arrangements affected the child’s schooling, home, and community activities. There were not sufficient remarks by the trial court or support from the lower court record to discern the trial court’s findings regarding best-interest factor (h) and to facilitate appellate review. Therefore, this error requires reversal. … Accordingly, we additionally remand the matter to the trial court to consider best interest factor (h).”

After the Court of Appeals issued its opinion, the plaintiff filed a motion for reconsideration, which was denied on September 5, 2019.