An unpublished opinion released on June 29 by the Court of Appeals ["COA"] highlights a contentious post-judgment motion to modify custody. Both parties sought to modify the joint custody award in their judgment, and each sought sole physical custody. The father alleged that his ex-wife’s hostile, uncooperative, and accusatory conduct was harmful to the children and made joint custody unworkable. The mother alleged that the father’s conduct toward her and the children amounted to domestic violence.
The Family Court Referee held a 13-day hearing. At the conclusion of the hearing, she awarded sole physical custody to Father. Mother asked for a de novo hearing. A one-day hearing was conducted by the Family Court Judge, who found adequate reason for a change in custody and awarded sole custody to Father. She refused his request to impute income to Mother. Both parties appealed and the COA affirmed.
On appeal, the mother argued that her alleged uncooperativeness and hostility toward the father were conditions that predated the original custody order, that the father could not now come before the court and use this as a reason to modify the parties’ agreed joint custody, and, therefore, that the Court could not use these to support a finding of changed circumstances warranting reconsideration of custody, citing Vodvarka v Grasmeyer, 259 Mich App 499 (2003).
[This is a new defense for me. “Once a bitch, always a bitch. I never changed.” Heh! I'll have to add it to my growing list of novel defenses. My all-time favorite is a mother's position, argued by her attorney as well, that she had a constitutional right-- a First Amendment right of association-- and the trial court had no authority to tell her that she could not continue her relationship with a boyfriend who had confessed to molesting his own daughter. Heh! You can guess how the trial court ruled on that one.] But I digress.