#TERRY TALKS “Ideas worth sharing “
# 11/05/13 , -TOPIC #Change of #Child #Custody in #Michigan.
The Defendant mother appeals as of right the Genesee trial court’s order granting Father plaintiff’s motion to change custody with respect to the parties’ minor child. The Michigan Court of Appeals reversed and remand for a determination by
the Genesee County trial court whether there existed proper cause or a change of circumstances, as necessary to modify the previous custody award.
To be clear,The Michigan Court of Appeals held that the determination of proper
cause or a change of circumstances is a mandatory ruling that must expressly be made by the trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances exists.
On remand, the trial court is to rule on whether there was proper cause or a change of circumstances. The existing evidentiary record should be sufficient to make the determination, but the trial court is free to entertain additional proofs if the court deems it necessary. The Vodvarka decision provides an excellent discussion of what constitutes proper cause and a change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at 509-514. Should the trial court rule that the threshold burden was not satisfied, the court shall
deny plaintiff’s motion to change custody. Should the trial court rule otherwise, defendant, if desired, can pursue a new appeal relative to the threshold ruling.
By Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group www.terrytalks.com
Issues discussed in this presentation are :
Motion to change custody;
Whether “proper cause” or “a change of circumstances” (COC) existed;
Vodvarka v. Grasmeyer; In re Anjoski;
Mitchell v. Mitchell; MCL 722.24(1); Harvey v. Harvey; “Established custodial environment” (ECE)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Bangs v. Groulx
e-Journal Number: 55655
Judge(s): Per Curiam – Murphy, Cavanagh, and Stephens
UNPUBLISHED ,October 22, 2013 , Michigan Court of Appeals No. 314566
Genesee Circuit Court Family Division LC No. 08-285186-DP
DECISION OF THE MICHIGAN COURT OF APPEALS
FATHERS WIN WAS REVERSED
The Michigan Court of Appeals decided that “the determination of proper cause or a change of circumstances is a mandatory ruling that must expressly be made by the Genesee County trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances exists,” the Michigan Court of Appeals reversed the Genesee County Family Court, the trial court’s order granting the plaintiff-father’s motion to change custody of the parties’ child and remanded.
LOCAL TRIAL COURTS ARE USUALLY UPHELD
Local Courts are usually upheld.with respect to child custody disputes, “all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”
MCL 722.28. MCL 722.27 provides in relevant part:
(1) If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following:
. . .
(c) Modify or amend its previous judgments or orders for proper cause
shown or because of change of circumstances[.]
The seminal case on the threshold inquiry of whether there existed proper cause or a
change of circumstances for purposes of modifying a custody order is of course Vodvarka v
Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003). In construing MCL 722.27(1)(c), the
Vodvarka panel stated that the party seeking a change in custody must establish, by a
preponderance of the evidence, either proper cause or a change of circumstances, and if the
movant fails to so establish, “the court is precluded from holding a child custody hearing.”
Vodvarka, 259 Mich App at 508-509; see also In re Anjoski, 283 Mich App 41, 53; 770 NW2d 1
BURDEN TO SHOW PROPER CAUSE OF CHANGE IN CIRCUMSTANCES
Absent satisfaction of the burden to show proper cause or a change of circumstances, a
trial court is not authorized under the statute to revisit a valid prior custody decision and to
engage in reconsideration of the statutory best-interest factors. Vodvarka, 259 Mich App at 508-
509. The purpose of requiring proper cause or a change of circumstances, as well as requiring
clear and convincing evidence to change an established custodial environment, is to erect a
barrier against removing a child from an established custodial environment except in compelling
cases. Id. at 509; Anjoski, 283 Mich App at 53.
A 2010 consent judgment awarded the parties joint legal and physical custody of their child. In 2012, plaintiff moved to modify custody, seeking sole or primary physical custody.
He “set forth a litany of allegations” he claimed constituted proper cause or a COC. In her response, the defendant-mother denied all of the allegations.
The Genesee trial court conducted a five-day evidentiary hearing on the motion.
“On the first day before testimony was taken, defendant asserted that plaintiff had not satisfied the threshold of showing proper cause or a change of circumstances.
” The trial court indicated that if she filed a written motion on the issue, it would consider it at the end of plaintiff’s proofs.
Defendant never filed the motion, and she never mentioned the issue again.
FINDING OF THE GENESEE TRIAL COURT
The Genesee trial court found that there was a joint ECE…[ joint established custodial
environment…]with both parties and that there was clear and convincing evidence, upon examination of the statutory “best interest” factors, to modify physical custody and award sole custody to plaintiff.
It never expressly ruled on whether proper cause or a COC were shown.
See MCL 722.23 (best-interest factors); MCL 722.27(1)(c) (established custodial
environment cannot be changed absent “clear and convincing evidence” that the change “is in the
best interest of the child”).
The Michigan Court of Appeals noted that “there is no error in conducting a single evidentiary hearing” encompassing (1) whether there exists proper cause or a COC […CHANGE OF CIRCUMSTANCES…] as needed to modify custody, (2) a determination of the child’s ECE, bearing on the burden of proof, (3) an examination of the best interest factors, and (4) a ruling on the custody motion.
However, Mitchell indicates that the issue of “proper cause or a change of circumstances must be the first issue reviewed and resolved by the trial court.”
GENESEE COURT COMMITTED ERROR
The Appellate court held that the Genesee “trial court committed clear legal error in directing defendant to file a motion on the threshold issue, given that the burden was on plaintiff as movant to prove that the threshold was met by the preponderance of the evidence” and that defendant denied the allegations.
Further, regardless of whether defendant failed to preserve her appellate arguments or she completely waived them, the Appellate court could not affirm – reversal and remand was necessary.
Regardless of whether defendant failed to preserve her appellate arguments or, even
further, completely waived the arguments, The Michigan Court of Appeals affirm and reversal and remand is
necessary. “In all actions involving dispute of a minor child’s custody, the..[Genesee..] court shall declare the
child’s inherent rights and establish the rights and duties as to the child’s custody, support, and
parenting time in accordance with this act.” MCL 722.24(1) (emphasis added). The Michigan Court of Appeals held that even if defendant had expressly agreed that there existed proper cause or a change of
circumstances, the trial court was nevertheless required to address the issue at some level and
make a ruling on the record.
SENT BACK TO GENESEE TRIAL COURT
On remand, the Genesee trial court is to rule on whether there was proper cause or a change of
circumstances. The existing evidentiary record should be sufficient to make the determination,
but the trial court is free to entertain additional proofs if the court deems it necessary. The
Vodvarka decision provides an excellent discussion of what constitutes proper cause and a
change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at
509-514. Should the Genesee trial court rule that the threshold burden was not satisfied, the Genesee Trial court shall deny plaintiff’s motion to change custody. Should the Genesee trial court rule otherwise, defendant, if
desired, can pursue a new appeal relative to the threshold ruling.
[This article is a mix of the e-journal and the Unpublished case with modifications by this author for social media presentation. DO NOT rely on this content without seeking legal counsel.][cya]
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