In Dumm v Brodbeck, decided on July 17, 2007 (approved for publication on August 28, 2007), the COA clarified the issue of whether the trial court may use the FOC report or recommendation.
In Dumm, the father filed a motion requesting modification of custody and the referee denied the motion. Incredibly, there was a de novo hearing that followed the same day. [Read the opinion; you'll see why this occurred. Apparently repetitive motions by the father exasperated the referee.] There's an important practice pointer in the COA opinion about how to get a trial court to consider the FOC report or recommendation:
"Further, the trial court properly considered the FOC recommendation and the testimony of Referee Savin. The Michigan Rules of Evidence do not apply to a trial court’s consideration of an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g), as in this case. MRE 1101(b)(9). In earlier versions of this court rule, the trial court was permitted to base its review solely on the FOC record only if the parties consented. Cochrane v Brown, 234 Mich App 129, 132; 592 NW2d 123 (1999). However, recent amendments of the statute and court rule have lifted this restriction, and the trial court is no longer prevented from considering an FOC report or recommendation if it also allows the parties to present live evidence. MCR 3.215(F)(2); MCL 552.507(5)(b), (6); 2004 PA 210. As noted supra, defendant neither asked to present live evidence before the trial court nor presented any documentation or affidavits to support his allegations. The October 11, 2006, hearing before the trial court satisfied the requirements in MCL 552.507(4) specifying that a trial court “shall hold a de novo hearing on any matter that has been the subject of a referee hearing” on the written request of either party or by motion of the court. Contrary to defendant’s assertion on appeal, the trial court properly reviewed the FOC record and issued a proper order in reliance on the FOC recommendation."
You can read Dumm v Brodbeck here.Technorati tags: child custody parenting time , child custody , parenting time ,