Realistic expectations about custody modification

Winters v James, decided on August 31, 2010, is a good case study for lawyers to use in helping certain parents to form a realistic idea of what their chances of success may be in a motion to modify custody. This case has a little of everything that we’re getting used to seeing in this economy—relocation, return, live-in companions, multiple moves, on-again / off-again verbal custody agreements.

In Winters v James, the parties were divorced in 1999. Initially, Mom was awarded full physical custody and the parents shared joint legal custody. In 2008, Mom wanted to move to Colorado for an employment opportunity. She initially believed that Dad had agreed to let her take the children with her to Colorado. However, not long thereafter, Dad changed his mind about letting Mom take the children with her.

Eventually, the parties executed a stipulated consent agreement that was entered by the court in October 2008. It isn’t clear whether either parent was then represented by counsel. The modification order entered provided that Dad would retain temporary physical custody of the children while plaintiff moved to Colorado. It also provided that the issue of custody would be revisited prior to the beginning of the next school year, and if the parties could not reach agreement, they would turn to the court to resolve the matter.

Mom came back to Michigan in April 2009, planning to permanently reside here. She filed a motion to dissolve the consent order or to change custody in June 2009. The court held an evidentiary hearing and denied her motion.

Mom’s first challenge to the October 2008 consent order was that it modified custody without an evidentiary hearing and without an analysis of the statutory best interest factors. Her primary arguments were:

• Michigan law favors returning children to a custodial parent who has agreed to temporarily and voluntarily relinquish custody.
• Where the parties submit a consent order, the court must nonetheless independently determine that the agreement is in the best interests of the child,
• Since the court held no evidentiary hearing before entering the custody order, even on this temporary basis, the order should be dissolved.

As to this latter issue, the COA panel stated:

"A hearing regarding the best interests of the children was not held prior to entering the consent order, and the only mention of the children’s best interests in the consent order was that both parties intended to limit disruption to the children’s academic and social lives by changing physical custody to defendant while plaintiff moved to Colorado. This consideration was inadequate to meet the demands of MCL 722.27(1)(c), which provides that a trial court “shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

The COA regarded the failure of the trial court to hold a hearing and consider the children’s best interests prior to changing custody in October 2008 as de minimus since the following satisfied the goals of the Child Custody Act:

• Neither party protested the validity of the order at any time before the trial court;
• The parties complied with the order for nearly a year until Mom returned from Colorado and tried to recover full custody; and
• Nearly a year after the consent order, the court held a full evidentiary hearing where the parties were able to present all evidence concerning custody.

Next, Mom argued that the consent order contemplated return of full physical custody to her and that it was error not to uphold the intent of that order. As to this argument, the COA panel stated that “[t]he court did fulfill the role that the parties contemplated when they composed the agreement, and there was no expectation under that agreement that custody would necessarily be returned to plaintiff." In a footnote, the COA said that there was no time-limitation on the change in custody, but only a generalized agreement to submit the issue to the court if they could not agree when Mom returned.

Several life-style issues were deciding factors in the trial court’s decision to award Dad physical custody. These are points lawyers might raise with their clients when counseling them in making decisions pre or post judgment that may negatively impact their right to custody when the trial court considers the stability of the parent-child environment:

1. The children had lived with Dad in a stable home for about a year at the time of trial and that Mom was residing in her mother’s home with her boyfriend.
2. The court found that Mom was evasive regarding future plans with her boyfriend.
3. The trial court found that testimony of a land contract for Mom to purchase the home from her mother was “not entirely credible.”
4. The children had been living with Dad for approximately one year, he had stable employment, and had renovated his house to accommodate those living there.

The COA panel did not find it error for the trial court to put more emphasis on the above than on the fact that during the 11 years that Mom had primary physical custody of the children, she had lived for many years with them in her mother’s home.

Interesting language from the COA opinion:

"Moreover, the trial court did not err by declining to consider the several years during which plaintiff previously had primary physical custody of the children. MCL 722.23 directed the trial court to consider “the desirability of maintaining continuity” with respect to the children’s living arrangements and environment (emphasis in the original). Given this statutory language, the Legislature intended the children’s present or current living environment to be a court’s primary consideration under factor (d). [Emphasis added] Thus, the COA affirmed the trial court’s focus on the children’s then-existing living environment with plaintiff, instead of the 11 years with Mom."

Mom then argued that her 11 years of being a primary custodial parent should have counted heavily in her favor. But the COA stated that Dad’s 7-year marriage and his ability and step-mom’s ability to accommodate their schedules to be home at night with the children favored him. Mom’s argument that her relationship with her boyfriend was irrelevant was not well-received by the COA.

"While considering factor (e), the court may not consider the acceptability of the custodial home as a family unit, but only the permanence. [citation omitted] The focus of factor (e) is the children’s prospects for a stable family environment, which could be affected by disruptions such as moves to unfamiliar settings, a succession of persons residing in the home, or live-in romantic companions for the custodial parent. [citation omitted] Here, it was not against the great weight of the evidence to conclude that the permanence of the family unit offered by defendant, who had been remarried for several years, was greater than the permanence offered by plaintiff, who had a live-in boyfriend and no permanent commitment other than his gift to her of a promise ring."

The message is clear about factor (j) [facilitation of the parent-child relationship with the other parent]: Parents should bear in mind that the trial court is going to be concerned about the following:

• Communication between the parties about the children
• Unnecessary limitations by one parent about the other parent’s access to the children, whether that be parenting time or telephone or electronic parenting time.

What’s the biggest take-away? If you are a parent considering a temporary relinquishment of custody to the other parent, be sure that it is a time-limited arrangement. Retain a lawyer to help you draft the language. The generalized language of these parents (that they would revisit the custody issue prior to the beginning of the next school year, consult with each other about proposals regarding custody, allow the court to resolve any dispute concerning custody) worked against the mother in this case.

Winters v James, Docket No. 295369 [Unpublished August 31, 2010] may be read here.

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