In this custody dispute, the trial court properly granted the plaintiff-father sole legal and physical custody of the children and awarded the defendant-mother no parenting time, the Michigan Court of Appeals ruled, even though the appellate court “agree[d] with several claims of error” raised by the defendant.

According to the Court of Appeals in O’Brien v D’Annunzio (Docket No. 347830), the various procedural errors raised by the defendant were “harmless” and, therefore, the trial court’s custody and parenting-time order was affirmed.

The defendant’s main argument on appeal was that the trial court erred by effectively granting the plaintiff custody without satisfying the requirements in the Child Custody Act (MCL 722.21 et seq.) The defendant also took issue with the trial court’s reliance on a Friend of the Court recommendation before ruling on her motion to restore her custodial rights.

“Because the trial court applied the highest burden of proof applicable …, any effect the court’s procedural error had on the established custodial environment was harmless,” Judge David H. Sawyer and Judge Christopher M. Murray wrote in the majority opinion.

Judge Elizabeth L. Gleicher dissented. “The lead opinion affirms, characterizing the trial court’s multiple, serious legal errors as ‘harmless.’ I respectfully disagree for three reasons: several of the errors were egregious and far from harmless; the great weight of the evidence contravenes many of the trial court’s findings; and the trial court abused its discretion by depriving Mother of parenting time. … I would remand for entry of an order requiring immediate efforts at reunification conducted by a therapist selected from outside the court, and prompt reassignment to a new judge.”

Judge Murray wrote a separate concurrence specifically addressing the dissenting opinion. “[T]he dissent’s premise is built upon speculation and assumptions (who would have testified, how the trial court would have ruled, etc.) and … to reverse the ultimate order would necessitate casting aside well-established principles and recent caselaw that supports the trial court’s decision,” he stated.

Background

The plaintiff and the defendant are the parents of twins. The parties were never married or in a romantic relationship. The parties shared legal custody and the defendant had physical custody of the children. The parties were able to effectively co-parent throughout much of the children’s adolescence.

In 2017, the defendant’s relationship with the plaintiff and then 13-year-old IDO became strained, prompting the plaintiff to file an emergency motion for a change of custody in the Oakland County Circuit Court. The plaintiff alleged the defendant had “a history of losing her temper beyond the point of control” and that her behavior constituted a change of circumstances or proper cause to modify custody. In response, the defendant asserted that IDO had become “increasingly disrespectful” toward her and the plaintiff was using the parties’ differing parenting styles to “undermine” her relationship with the children.

The plaintiff’s motion was referred to the Friend of the Court (FOC) for a recommendation. In the meantime, the trial court signed an interim parenting-time order with an approximately equal parenting-time schedule. Shortly after, the plaintiff filed an ex parte motion to suspend the defendant’s parenting time, claiming that she continued to engage in “alarming behavior.” The trial court then signed an ex parte order granting the plaintiff “temporary full-time parenting time” until the matter could be appropriately addressed at a later date. The order also prohibited the defendant from initiating any contact with the children.

At a hearing in November 2017, the plaintiff asked the trial court to adopt a recommendation from Kathleen Doan, the trial court’s FOC custody and parenting-time specialist, in which Doan recommended that the defendant complete a psychological evaluation and parenting classes. The plaintiff also requested that, while the matter was pending, the trial court continue to suspend the defendant’s parenting time. The trial court granted the plaintiff’s motion and continued the order suspending the defendant’s parenting time.

An evidentiary hearing on the motion to change custody began on March 20, 2018 and consisted of nine days of proceedings over an eight-month period. In July 2018, the parties tried to resolve their dispute by agreeing to a schedule of visits and joint counseling sessions with the defendant and the children. However, each time the defendant had contact with the children, the children were left “distraught” and “emotional.”

Several months after the hearings concluded, Oakland County Circuit Judge Lisa Langton issued a lengthy opinion. The judge ruled that it was necessary to revisit the custody arrangement because the co-parenting difficulties “took a high toll on the children and was contrary to their best interests.” Although the judge’s discussion of the children’s established custodial environment was “somewhat ambiguous,” she analyzed the matter as though the children had an established custodial environment with both parties. The trial court applied a clear and convincing evidence standard and considered the statutory best-interest factors in MCL 722.23. Citing evidence relevant to each factor, the trial judge determined that granting the plaintiff sole legal and physical custody was in the children’s best interests in light of the defendant’s “bizarre and concerning behaviors.”

Regarding parenting time, the trial court concluded it was not in the best interests of the children to have parenting time with the defendant because it would further endanger their physical, mental or emotional health. However, the trial court allowed periodic review hearings to determine whether reinstating parenting time at some point would be in the children’s best interests.

The defendant appealed.

 ‘Harmless’ Errors

The defendant presented several arguments on appeal, including that the trial court erred by effectively granting the plaintiff custody in November 2017 without complying with the procedural requirements of the Child Custody Act. In a related argument, the defendant also took issue with the trial court’s reliance on the FOC recommendation when it ruled on the defendant’s motion to restore her custodial rights.

“We agree, in part,” the Court of Appeals said, “but conclude that the trial court’s procedural error was harmless.”

The Court of Appeals pointed out MCL 722.27(1)(c) requires that, when seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change of circumstances before the court may proceed to analyze whether modification is in the child’s best interests. According to the Court of Appeals, the threshold requirements a party seeking a change of custody must satisfy are set forth in Vodvarka v Grasmeyer, 259 Mich App 499 (2003), which says the moving party must first prove by a preponderance of the evidence “the existence of an appropriate ground for legal action to be taken by the trial court.” In addition, the appropriate ground(s) should be relevant to at least one of the 12 statutory best-interest factors and must be of “such magnitude to have a significant effect on the child’s well-being.”

Once a moving party has demonstrated proper cause, the trial court can then engage in a re-evaluation of the statutory best interest factors, the Court of Appeals explained. To establish a change of circumstances, a moving party must prove that, since the entry of the last custody order, the conditions surrounding custody have materially changed. “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.”

If the trial court finds that proper cause or a change of circumstances has been established, it must then consider whether the proposed change is in the best interests of the child, the Court of Appeals observed. “Custody decisions, as well as parenting-time decisions that would alter the child’s established custodial environment, require findings under all of the statutory best-interest factors. … An evidentiary hearing is mandated before custody can be modified, even on a temporary basis.”

In this case, the defendant argued the trial court erred by failing to comply with these procedural requirements before granting the plaintiff full-time parenting time in November 2017. “We agree,” the Court of Appeals said. “On November 6, 2017, while plaintiff’s motion to change custody was pending, the trial court signed an ex parte order suspending defendant’s parenting time. The court heard oral arguments concerning plaintiff’s emergency motion to suspend defendant’s parenting time on November 15, 2017. At the conclusion of the brief hearing, the trial court signed an order continuing the suspension of defendant’s parenting time and ordering that plaintiff ‘have the children full-time.’ Although the trial court framed its order in terms of parenting time only, the complete suspension of defendant’s parenting time had the effect of modifying physical custody of the children because it gave plaintiff complete physical care and supervision of the children while the order remained in effect, where physical custody had previously been vested in defendant. … Because the trial court’s order modified the children’s custody, the court was required to first hold an evidentiary hearing and make the findings detailed above, which it did not do. This was a clear error of law.”

However, “the trial court’s error was harmless under these circumstances,” the Court of Appeals stated. “In its later opinion following the evidentiary hearings, the trial court found proper cause or a change of circumstances based upon the breakdown of the parties’ ability to co-parent that occurred before plaintiff filed his motion for change of custody, which the court reasoned had taken ‘an increasingly high toll on the children, their health, and [was] contrary to their best interests.’ Because the trial court’s opinion makes it clear that it considered whether the circumstances that existed before November 2017 warranted revisiting the custody order, there is no reason to believe that the trial court would have reached a different result if it had considered this issue before entry of the November 15, 2017 order that effectively granted plaintiff physical custody.”

The defendant, however, asserted the trial court’s procedural error was not harmless because the suspension of her parenting time resulted in a “judicially engineered … new established custodial environment” and “invariably affected” the future proceedings in the case. “We disagree,” the Court of Appeals wrote. “Although the trial court’s opinion is somewhat contradictory in its discussion of the children’s established custodial environment, the court applied the higher clear and convincing evidence burden of proof that applies when the established custodial environment will be altered by the court’s order. … Because the trial court applied the highest burden of proof applicable to plaintiff’s motion, any effect the court’s procedural error had on the established custodial environment was harmless.”

Next, the Court of Appeals disagreed with the defendant’s contention that any procedural error tainted later proceedings, finding that the defendant “failed to expand upon this conclusory argument” and, as a result, the argument did not need to be addressed. “Defendant’s position lacks merit at any rate because the trial court followed the appropriate framework for modifying custody in its opinion, albeit well after it first granted plaintiff physical custody on a temporary basis,” the Court of Appeals wrote. “That is, after finding that it was appropriate to revisit the issue of custody, the court determined the applicable burden of proof on the basis of the children’s established custodial environment and proceeded to conduct an in-depth analysis of the statutory best-interest factors. … Had the trial court held an evidentiary hearing before modifying the custody arrangement on a temporary basis, th[e] finding would still have been supported by evidence of the events that occurred in the fall of 2017.”

The defendant further argued that the trial court erred by basing its decisions on ex parte communications and inadmissible evidence. “Again, we agree, in part, but find the trial court’s error harmless in the context of this case,” the Court of Appeals held. “Defendant argues that the trial court erred by considering ex parte communications with Doan. Defendant’s argument is fundamentally flawed because an ex parte communication is ‘[a] communication between counsel or a party and the court when opposing counsel or party is not present.’”

“That being said,” the Court of Appeals wrote, “the portion of the trial court’s order enjoining [the children’s counselor] and Doan from ‘discussing or disclosing the contents of their communication to counsel or the parties,’ is more problematic.” According to the Friend of the Court Act, specifically MCL 552.507a(1), “[a] copy of each report, recommendation, and any supporting documents or a summary of supporting documents prepared or used by the friend of the court or an employee of the office shall be made available to the attorney for each party and to each of the parties before the court takes any action on a recommendation by the office,” the Court of Appeals pointed out. Likewise, MCR 3.210(C)(6) says the trial court must give the parties an opportunity to review and file objections to an FOC report before a decision is made. “Given these mandates, the trial court committed clear legal error by precluding disclosure of the recommendation to the parties.”

However, “the trial court’s error does not require appellate relief because it was harmless,” the Court of Appeals said. “Although the trial court’s communication with Doan does not constitute ex parte communication, the dangers inherent in ex parte communications bear consideration.” Ex parte communications “deprive the absent party of the right to respond and be heard,” the Court of Appeals explained, citing Grievance Administrator v Lopatin, 462 Mich 235 (2000). “They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge ‘may be incomplete or inaccurate, the problem can be incorrectly stated.’ At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption.”

According to the Court of Appeals, “[t]hese risks are not present in this case because the parties were not deprived the opportunity to respond and be heard.”

Moreover, the defendant maintained the trial court erred by denying her requests to compel production of the plaintiff’s social media posts, the usernames and passwords for the children’s social media accounts and the raw test data from the psychological evaluations of the parties and children. “We agree, in part, but again find that the trial court’s error was harmless,” the Court of Appeals said. “Although the trial court did not articulate its reason for denying defendant’s request, we cannot conclude that the trial court’s ruling amounted to an abuse of discretion because there was evidence that defendant had abused similar access in the recent past. … Despite Michigan’s broad discovery policy, the trial court did not err by denying a request that could be used for abusive purposes, particularly when the parties presented ample evidence from which the children’s state of mind could be discerned, including, most notably, the children’s counseling records.”

Dissent: From Bad To Worse

In her dissent, Gleicher said that instead of working toward reunifying the family, the record showed that the trial court displayed an “unbridled animosity toward” the defendant and “likely will never allow her to regain even the barest contact with her children.”

According to Gleicher, certain “fundamental legal principles faded into the background” during this custody dispute, including MCL 722.27a(1), which says: “Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.”

“Children have the best chance to grow into healthy adults when they have relationships with both parents,” Gleicher wrote. “Depriving a child of a parent, and a parent of a child, is a drastic measure that should be undertaken only under the direst circumstances, and in a process that strictly conforms with the rules. This case comes nowhere close to fulfilling those prerequisites.”

Further, a statutory framework exists to protect parents’ due process rights in custody disputes, Gleicher pointed out. Applicable here is MCL 722.27(1)(c), which gives a trial court the authority to “modify or amend” prior judgments or orders on a showing of proper cause or changed circumstances. “This case exemplifies what happens when a trial court ignores the rules. Without benefit of a hearing, the trial court unhesitatingly accepted inflammatory and, as the actual evidence later revealed, exaggerated or false allegations set forth in an emergency motion. From the moment the trial court took away [the defendant’s] right to have a relationship with her children, [she] was on the defensive.”

According to Gleicher, the “power of first impressions” is another reason the law requires an evidentiary hearing before a change in custody. “An enormous amount of evidence was gathered, much of which described events that occurred well after father’s emergency change of custody motions had been granted. The initial legal questions concerning the children’s established custodial environment were lost in the ensuing evidentiary abyss. That is why timely evidentiary hearings play a vital role in evaluating the need for a custodial change.”

As a result, Gleicher said the trial court’s initial legal error was not harmless. “[I]ts consequences flowed into its final decision and poisoned the well. Not only were the children removed from [the defendant’s]  home; before depriving [the defendant] of any contact with her children, [she] was prohibited from seeing them except under supervision, a decision made before the court heard from any health professionals.”

In its “haste” to “punish” the defendant, “the trial court wound up worsening a bad situation,” Gleicher said. “Following the rules may not have automatically healed the parties’ problems, but based on the evidence that ultimately emerged, [the defendant’s] relationship with her children would have been preserved. The goal at this point should be immediate and aggressive efforts at reconciliation and reunification. Given the lead opinion’s willingness to simply overlook the trial court’s many errors and its endorsement of the status quo, I hold out no hope that will occur.”

Concurrence: Dissent ‘Misses The Mark’

Judge Murray wrote a separate concurrence “to point out several ways in which the dissenting opinion misses the mark.” The premise of the dissenting opinion, Murray said, was based on “speculation and assumptions,” such as who would have testified and how the trial court would have ruled, and to reverse the trial court’s order “would necessitate casting aside well-established principles and recent caselaw that supports the trial court’s decision.”

“It is not often that our Court overturns a trial court’s custody decision, let alone a decision explained in a thorough 55-page opinion, and which was issued after nine hearing days, where 15 witnesses and numerous exhibits were submitted and analyzed by the court,” Murray wrote. “Here, the trial court noted at the start of its opinion that these parents and children had been before the court on many different occasions, and almost always for custody and parenting time disputes. And that is also why, no matter what type of case is involved, our Courts have long recognized the ability of trial courts to pick up on the many nuances of witness testimony, which places trial courts in the optimal position to not only resolve credibility issues, but to determine what weight to give testimony.”

The dissenting opinion, while “well-written” and “thoughtful,” went “well beyond the highly deferential standard of review by engaging in a microscopic and one-sided review of the evidence and procedural background that led to the ultimate decision,” Murray said. “Indeed, if one were to read the dissent in isolation, one would conclude that the trial court had no regard for defendant, and intentionally disregarded all credible evidence in concluding that defendant was not entitled to custody or, at the time, parenting time. But, as the majority opinion makes clear, that is far from the case.”

Murray noted that, according to the dissent, the trial court was “tainted” against the defendant, disregarded facts supporting the defendant’s arguments, misrepresented evidence and had no interest in helping to rebuild the relationship between the defendant and the children. “A reading of the trial court’s opinion proves otherwise,” he stated.

According to Murray, the dissent used MCL 722.27a(1) as a “springboard” to assert that the trial court “abdicated” its responsibilities help rebuild the relationships through parenting time. “The trial court did no such thing. Instead, it just came to a different conclusion than does the dissent.”

Murray also said the dissenting opinion ignored the trial court’s “long familiarity” with the case. “As the trial court recounts in its opinion, there have been numerous orders and hearings involving these parents and these children in 2005, 2007, 2008 and 2009, and then those that began in 2017. The trial court was aware that, in the first few years after initiation of this case, there were repeated orders regarding the need for a parenting time coordinator, and the recommendations made regarding custody and parenting time.”

In his conclusion, Murray said the dissenting opinion presented one theory of the case, while the trial court presented another. “Both theories have a basis in the evidence, but as set forth in the initial part of this opinion, it is not our duty as appellate judges to decide which facts are more persuasive or worthy of more weight. It is enough to say, as the majority does, that evidence supported the trial court’s findings.”