An unpublished opinion released on June 29 by the Court of Appeals ["COA"] highlights a contentious post-judgment motion to modify custody.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.
Basically what the COA said was that even the Vodvarka case contemplated that in some situations, proper cause for a change in custody can be based on events and circumstances that were known before the entry of the original order if they are sufficiently significant to justify revisitation of the order. You’ll want to read the COA’s opinion on this issue because it might prove useful to you in future cases.
In addition, I’d recommend reading the opinion for the trial court’s analysis of the Best Interest factors. If you see any of your clients in the analysis of each factor, you might keep a copy of this opinion on hand to give to problem clients so that they see the potential effect down the road of any failure to grow on their part. I refer specifically to footnote 2, which summarizes the court’s findings of fact on the best interest factors.
Example: The court-appointed therapist, Dr. Ardizzone, testified that defendant (Mother) disregarded his parenting advice. As an example, he explained that he “had advised her that she needed to focus on the children instead of her hostility toward plaintiff, and he had warned her that her mother’s hostility toward plaintiff had an adverse effect on the children. In response, she merely giggled and said ‘what can I do.’ “
That came back to bite Mother when the court found against her on factor (h) (home, school, and community record). With respect to factor (h), the court noted that defendant was “less likely to follow professional advice.”
You can read Lundquist v Lundquist here.
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