The Michigan Court of Appeals ordered a mother to pay over $25,000 in attorney fees and costs in a contentious post-judgment child custody and parenting time case. Parents who think they can just willy-nilly waltz into court and/or who use and abuse child protective laws in an attempt to restrict access to children should think again. I've seen lots of abusive litigation before, but this one is really quite amazing.
The case involved Sean O’Farrell [“Father”] and Kelly O’Farrell [“Mother”]. They were divorced in December 2008. The judgment of divorce provided that Father and Mother would have joint legal custody of their minor child, who was two years old at the time. The judgment of divorce granted Mother physical custody of the child until further order of the court and ordered an extensive, detailed parenting-time schedule. The fact that the PT schedule was extensive and detailed indicates that Father’s lawyer perceived the need for this—that there was already contention. No doubt! Mother filed a motion in later March 2009—about four (4) months after the ink was dry on the judgment of divorce. She sought to suspend or to restrict Father’s parenting time.
Father responded to the motion and also filed a motion for a change of custody. There were thirteen hearings over a period of nearly two years. At the conclusion of the final hearing, the Court declined to restrict the father’s parenting time and, in fact, increased it.
In addition, the judge indicated that he was very close to finding the proofs sufficient to grant Father’s petition for a change in custody. The trial court ordered that Mother pay Father’s attorney $20,912 in fees and $3,555.86 in costs and reimburse Father’s $738 cost to the Guardian Ad Litem (GAL). The Court of Appeals affirmed.
The case involved many referrals to doctors, medical facilities, DHS (Protective Services). Eventually three psychologists testified. In addition, the trial court appointed a Guardian Ad Litem (GAL) for the child. Hearings were held in which the Court heard testimony from the parties, and also from the following:
Wayne Simmons, an expert in psychology, child development, and custody
evaluations who met with the parties and conducted a custody evaluation;
Rebecca Johnston, the child’s preschool teacher; Dr. Diane Kukulis, the child’s play therapist who the court did not qualify as an expert;
Dr. Terrance Campbell, an expert in forensic psychology who, in response to an order of the court, was hired by Father to interview the parties and evaluate their interaction with the child;
Melanie Rand, a Child Protective Services (CPS) worker who received a referral regarding the child and observed a forensic interview of the child; and
David Breyer, a psychologist who performed a psychological evaluation of the parties and the child at CPS’s request.
During a hearing on January 24, 2011, the trial court issued an opinion on the record. Some of the comments of the judge were:
start of the case Defendant, Mother, has continued to attempt to limit
Father’s visitation and interrupt his quality time with his daughter.
Mother also tried to limit visitations by taking the child to two different . . . pediatricians who quit because they were being used for gathering evidence. Emergency room visits were also undertaken for weighing before and after visits in an attempt to gather evidence. Then we had the allegations of Attachment Disorder in play therapy without both parents being involved in the therapy.
Now we have allegations that there have been . . . eight referrals to D.H.S.; all unsubstantiated and the last referral, as previously indicated, came the day after the Court cautioned the parents and grandparents that the conduct has to change. D.H.S. did a local investigation and used the services of David Breyer who the Court finds is one of the best evaluators I have witnessed both in private practice and on the bench.
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His conclusions indicate . . . Mother is overly nurturing, in fact, I feel she is smothering the child
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The Court is mindful that Mother has a medical background and both maternal grandparents do as well. . . . The Court finds that the medical knowledge has been misdirected by attempting to limit Dad’s ability to parent and alienate the daughter’s affection toward him.
Also, the Court finds that Mother self reports to people she knows are mandatory reporters and the Court finds that they are being used as agents of the mother.
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The severity of the allegations to D.H.S. have increased. There is constant doctoring. The one report indicated there were 120 events that have been charged to Blue Cross Blue Shield. [My emphasis]
Parents need to be mindful that courts are wise to their tranparent attempts to create an appearance of abuse where there is none. Too often parents use false reports of abuse. In one such case, a trial court was particularly responsive and not only refused to allow the mother a change in her parnetning time, but also awarded the father sole legal custody and entered an order specifically prohibiting the mother from taking the parents' autistic child to any medical, pyschological treater, and to any treatment center except in the event of a life-threatening injury.O’Farrell v O’Farrell, Docket No 303962, Decided November 20, 2012 [Unpublished] Download O'Farrell_v_O'Farrell