In Roodvoets v Royce, Docket No. 276451, decided June 26, 2007 (unpublished), the COA clarified when a party may get an evidentiary hearing on a motion to modify a custody / parenting time order. This was a monster case, involving custody of a child born in 1997. This was the third trip to the COA for the parties. On the second appeal, the COA in March 2004 affirmed the trial court’s modification of custody, which changed sole physical custody from the plaintiff mother to the defendant father.
Now before the COA for the third time, plaintiff mother challenged the trial court’s decision to grant an evidentiary hearing on father’s motion to put further conditions on the mother’s parenting time, claiming that the petition should have been denied for lack of change in circumstances or good cause. The panel noted that:
In August 2002, during the hearing on defendant’s motion for sole physical custody of Emma, the trial court stated:
This is a really extraordinary case. It would a - - it is very unusual to change custody from one parent to another when, at least, on the surface the parent that has custody is doing a good job with external things and has an established custodial environment with that parent. But this is a case where there are psychological issues that are deeply troubling and they will, over time, create a situation where there is no relationship between the child and the father unless the Court does something about it now.
The COA stated: “We find the situation little changed since that time.”
Citing Vodvarka, the COA discussed the tremendous barriers that must be surmounted in order to even get a hearing. Noting that “here, no change in circumstances was proved, and the trial court therefore erred in stating that the change in circumstances was sufficient basis for revisiting custody,” the COA found that this error was harmless. Instead, the COA adopted defendant’s argument in the trial court that “the basis for the evidentiary hearing was not a change in circumstances, but ‘that the conduct that was the cause for the change in custody continues to occur.’ “
Noting, once more that, in order to revisit custody, the moving party must establish either a “change in circumstance” or “proper cause,” the COA held as follows:
Although a change in circumstance was not proved, we find that defendant did offer sufficient evidence to support a finding of proper cause. 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. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Vodvarka, supra at 512].
The following is the evidence of “good cause” that the COA found persuasive:
The evidence offered during the evidentiary hearing included testimony from plaintiff and defendant and from three different mental health professionals.
Defendant testified that the issues that led to the change in custody are ongoing, and create ongoing stress for Emma. Defendant stated that Emma still cried after twice weekly phone calls with her mother, and he provided the court with an audio tape of a phone conversation between plaintiff and Emma (these were conversations taped by authority of a court order) during which Emma cried for eight to nine minutes. Defendant stated that plaintiff was typically 15 minutes to two hours late returning Emma after her parenting weekends. Defendant testified that Emma had told him that on weekends with her mother, her mother still went to sleep with her and woke up with her. Defense counsel added that plaintiff had been advised, in 2001, that she should not sleep in the same bed with her then four-year-old child.
What should you take away from this decision? In order to further restrict parenting time (insert a requirement for supervision, for example), an argument may be made that despite the court’s prior intervention, the other parent has continued in the conduct that was the grounds for the earlier modification of a custody order.
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