In a recent unpublished case, Michigan's court of appeals ("COA") held that the marriage of the parties' custodial parent to a man with a past criminal record was not a proper cause or a change in circumstances that would give the father a right to a change in custody of the parties' two minor children.
The parties have two children. The parties, who were never married, were awarded joint legal and joint physical custody in 2001. In 2007, after a hearing, the mother was awarded primary physical custody, but the parents continued to share joint legal custody. Apparently in that hearing, the father claimed that the criminal history of Mom's boyfriend warranted a change in custody and he tried to prove the boyfriend was a danger to the children.
Fast forward a little and Mom married the boyfriend; Dad filed a motion asking for a change in custody. Here's what the trial court said about Dad's concerns about the boyfriend/husband in its decision and order in November 2009 when it determined that there was neither proper cause nor a material change of circumstances to warrant a change in custody:
There is no doubt that in the beginning Ms. B minimized the circumstances involving Mr. P. and said the “right things” when discussing her concerns and relationships with Mr. P. That is not uncommon in domestic disputes involving child custody matters; i.e., don’t give the other side any more ammunition than necessary.
The [Father's] concerns with Mr. P date to his arrest and conviction in 2005 and 2006 on charges of unlawful possession of controlled substances and being in possession of a weapon. Mr. P served 90 days under the charges and was ordered to fulfill a two-year probation. The Court has no information that the probation was not satisfactorily completed.
In this new custody proceeding, the trial court held that Father hadn't met his burden to prove that sufficient good cause or change in circumstances existed to warrant revisiting the issue of custody.
The COA affirmed, saying:
In order for a trial court to find a change in circumstances sufficient to allow it to reopen the issue of custody, "the evidence must demonstrate something more than the normal life changes (good or 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." A parent's marriage or remarriage is generally a normal life change occurring in the life of a child and thus, does not rise to the level of a "change in circumstances" within the meaning of MCL 722.27(1)(c). Although the court held that P's past behavior and criminal convictions might provide a reason to be concerned about his presence in the minor children's lives, the trial court correctly noted that plaintiff failed to provide any evidence defendant's marriage to P has had or will have a significant effect on the minor children. The trial court did not err by determining that defendant's remarriage and P's resulting presence in the children's lives was tantamount to a normal life change. Plaintiff questioned why P's involvement in the life of the minor children was no longer a concern for the trial court if it was a concern in 2007. But plaintiff's question in this regard missed the mark. P's involvement in the children's lives may well remain a concern to this day. However, P's questionable behavior and his presence in the children's lives was already a concern in 2007. Thus, it could not be said that this circumstance has in any way "change[d]" as required by MCL 722.27(1)(c) merely because P is now married to defendant.
This case reminds me of one I tried a few years ago. The mom had a BF who had plead guilty to CSC, but had withdrawn his plea when he did not like the number of years in the prison term. After a 3-day trial, the jury found him "not guilty." Now you and I know what that means. It means that the jury could not find him guilty beyond a reasonable doubt. Does it mean he was guaranteed to be innocent? No.
The mom copped an attitude. Basically, she said "I have a constitutional right to associations of my choice and this court cannot tell me who I can date." Surprisingly, her attorney supported this argument, failing to see the failure to protect issue. In the first trial, Mom testified under oath that she was no longer seeing BF. Not long after that trial (she retained custody), she left for a vacation with the BF. And then she married him.
Dad filed another motion to change custody. In the second trial, the mom's marriage and the BF/husband's past history was good cause for a change in custody. The judge hearing the case found that because the mother could not believe in the possibility that her husband may have committed a past crime against a child that she would likely be unable to protect her children. Thank goodness for what I call "kid-centered judges."
It is important to remember, however, that every family law case is unique and the specific facts of a case will be very important in determining the outcome. I feel strongly that my clients should be empowered by knowing how courts look at cases like theirs. I will often send a copy of a similar case to a client so that he or she may read it to see how the trial judge looked at the facts and what the court's conclusions were. Clients who are informed sleep better at night and can make better decisions about how their matter is handled. Mediated results are often made more possible.
And, as a judge once said to parents in a courtroom: "Why would you want me, a stranger to your children, to make such an important decision about who will have custody and what the parenting time should be. Why don't you take a week or two to consider what would be best for your children, because you know the dynamics of your family and your children's needs better than anyone?" Wise judge.
You may read Allen v Belonga here.
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