In a new opinion issued on June 29, 2017 by the Michigan Court of Appeals, the COA admonished the trial court for apparently putting the issue of docket control ahead of the lawful exercise of the court's powers under the Child Custody Act. Fante v Nova, Docket Nos 334735; 336085 (Consolidated on appeal)
The defendant father appealed orders of the trial court modifying custody of the parties’ children to “return” sole physical custody to plaintiff mother after the children had spent more than a year in defendant’s sole care. The Court later dismissed defendant father’s motion to modify custody when he did not appear for a hearing, and later denied the father's renewed motion to modify custody and parenting time. He appealed to the Michigan Court of Appeals.
The COA vacated and remanded, requiring the trial court to hear the father's motion to change custody. This Court of Appeals Opinion concisely and clearly sets out the approach a trial court must take in a contest custody and/or parenting time case. It is an excellent summary of how these cases should proceed.
After hearing the evidence, the referee ordered that the children would remain placed with defendant father, emphasizing that it was “placement” rather than a change in custody, “until further order of the court.” The mother objected, but the trial court affirmed the referee’s order. Eventually, plaintiff mother received a directed verdict regarding the criminal charges.
An evidentiary hearing was scheduled on June 9, 2016, but adjourned after defendant’s attorney withdrew. Despite the fact that no evidentiary hearing was heard, the trial court entered an order granting plaintiff “temporary physical custody of both minor children” pending a June 29, 2016 evidentiary hearing on defendant’s 2015 motion. The father was ordered to represent himself if he could not obtain substitute counsel. He did not appear at all on June 29, 2016, and the trial court dismissed his motion to modify custody as a consequence and also granted plaintiff's request to make the father's parenting time supervised.
The father filed a motion seeking relief from the June 9 and June 29, 2016, orders because defendant had not appeared, and the judge denied this motion.
The COA initially noted the obvious frustration expressed toward the father by the trial court, noting that the pressures of SCAO requirements for trial courts to dispose of cases on a strict schedule (docket management / control) may have motivated the trial court. A scolding followed in the COA opinion.
The COA held that the dismissal was too harsh a punishment for the failure of the father to appear at the June 2016 hearing. Moreover, the COA held that the trial court's actions under time pressure was no excuse for entering an order characterized as “placement” or “temporary” or “emergency” or any similar euphemisms does not change the true nature
of such an order:
"[I]f the children involved are in an established custodial environment, removing the children from that environment effectuates a change in custody," citing Shade v Wright, 291 Mich App 17, 27; 805 NW2d 1 (2010).
The COA emphasized that according to Michigan law, any modification of custody is subject to the Child Custody Act and requires independent consideration by the court of the best-interest factors. Even modification of parenting time changes requires satisfying the requirements of the Child Custody Act. Just because a trial court calls a change “temporary” does not permit the trial court to avoid its obligation to hear evidence and to make findings of fact and conclusions of law on the best interest of the child factors.
The damage to a parent's case that may be caused by such an arbitrary change in custody (raising the burden of proof from preponderance of the evidence to clear and convincing) raises grave concerns since a new established custodial environment may have arisen during the delays caused by the court's order. That the development of a new ECE might be caused by an order that was erroneously entered doesn't help this father. Under Michigan law, it is irrelevant how or why a new ECE may have arisen.
For parents, the ultimate take-aways from this case (and the cases upon which the COA decision is based are these:
- Before the trial court may change an established custodial environment, it must first find “proper cause or a change in circumstances sufficient to revisit an existing custody order,” and then determine whether an established custodial environment actually exists.
- If an established custodial environment does exist, the trial court must then determine whether clear and convincing evidence shows the change to be
in the best interests of the child. - A party’s failure to appear does not in any way constitute evidence of either the existence or nonexistence of an established custodial environment, nor does it constitute evidence bearing on the best interests of the child.
- A party’s failure to appear may be cause for imposing sanctions on the party, it is not a basis for altering a child’s custody.
- A trial court may limit its analysis to explicitly contested issues only where a change in parenting time does not alter the established custodial environment, citing Shade v Wright, 291 Mich App 17, 26-27, 31-32; 805 NW2d 1 (2010). Download Shade_v._Wright
- "Minor tinkering with parenting time does not necessarily change an established custodial environment," citing Lieberman v On, Mich App , ; NW2d (2017) (Docket No. 333816), slip op at p 12. [For Publication] Download Lieberman_v_Orr (Opinion) ; Download Lieberman_v_Orr (Dissenting Opinion) [Note: This is a school change case)
The COA did not foreclose a removal of a child in the case of a hazardous situation, but indefinite removals that are allowed to continue for lengthy periods of time must be avoided because of the prejudice that may occur (the development of a new ECE which raises the burden of proof).
The COA vacated the order changing custody to the mother and another (later) order that the father's parenting time had to be supervised and remanded to the trial court for a new hearing. Download Fante_v_Nova
Let's hope that this Opinion is published. It is clear, concise and highly instructive to bench and bar.
