Michigan Court Of Appeals Reverses Change Of Custody Order

On September 15, 2015, the Michigan Court of Appeals reversed a family court referee's order changing custody from a child's mother to a child's father in a strongly-worded opinion that identified a number of serious legal errors committed by the referee.

In McConchie v Voight, Docket No. 326651, the Michigan Court of Appeals addressed the issue of whether a family court referee erred when the referee issued an order changing primary physical custody of a child from the child's mother to the child's father. On appeal, the child's mother questioned the following aspects of the referee's decision to change the child's primary physical custodian from mother to father:

  • the lack of a motion to change custody;
  • the referee's failure to hold a full hearing; 
  • the referee's failure to make a determination regarding the child’s established custodial environment, and
  • the referee's failure to make a determination that proper cause or a change of circumstances justified reconsideration of the child’s custodial situation.

The Court first recited the facts of the case:

The parties lived together for several years. In 2009, they had a child. On November 4, 2010, an order was entered granting mother sole legal and physical custody of the child.1 On December 22, 2010, father filed a motion to have both legal and physical custody changed to joint. The parties reached an agreement resulting in dismissal of that motion and entry of a consent order on April 29, 2011 that gave the parties joint legal custody, but gave “sole physical custody” to mother with “reasonable and liberal [parenting time] as the parties agree.” However, the order stated that the parties were living together and so child support was not ordered.

On September 18, 2013, father filed a motion to change custody. On the date set for hearing, the parties reached an agreement and a consent order was entered providing that father was to have parenting time alternate weekends and one midweek evening. The order also referred the matter to the Friend of the Court (FOC) for a statutory review of child support. On December 3, 2013, the FOC issued a Notice of Intent to Enter Proposed Child Support Order providing for child support payments of $303 per month from father to mother. On December 6, 2013, father filed objections to the proposed child support order. On February 28, 2014, the referee heard the objections, found that the FOC recommendation was accurate, and prepared a recommended order.

On April 8, 2014, father filed a motion for change of custody, alleging that the child was unsafe at mother’s apartment because of an incident on March 29, 2014, when the five-year old child wandered into the hallway while his mother was asleep and was accidentally locked out of the apartment. The child was unhurt. Child Protective Services (CPS) investigated the incident and remained involved with mother and child for several months. A hearing on the motion to change custody was held on September 4, 2014. At the hearing, the CPS worker assigned to the case testified that the child was safe, mother’s home was adequate, the incident was accidental, and—contrary to father’s allegations—the mother did not have a substance abuse problem. Father also testified. The referee found that the child’s established custodial environment was with mother and that there was neither proper cause nor a significant change in circumstances to justify considering a change in that custodial environment. Accordingly, she denied father’s motion to change custody. The order also referred both parents to a family therapist and set a “parenting time hearing” for March 4, 2015. Father did not seek a de novo hearing or an appeal.

When the parties convened for that “parenting time hearing,” the referee entered an order immediately transferring primary physical custody to the father . . . .

The Court's analysis of whether the family court referee erred in changing primary physical custody from the child's mother to the child's father followed:

The first two errors occurred before the referee’s ruling and constituted violation of mother’s right to due process . . . .

The first violation occurred when a change of primary physical custody was considered at the March 4, 2015 hearing even though no motion to change physical custody was pending. Father’s October 2014 motion had already been denied without appeal, no new motion had been filed, and there was no emergency that required the court to dispense with the requirements of fair notice provided by the rules governing motion practice and as a matter of due process.

The second violation occurred during the hearing. Father’s counsel conducted a direct examination of the family therapist. The therapist’s testimony was, for the most part, a recitation of father’s allegations that mother’s prescription medications, either as a result of abuse or prescribed use, were preventing her from waking up early enough in the morning to take the child to kindergarten, which resulted in several absences. The therapist opined that father’s allegations regarding possible substance abuse might be true, and she expressed concern that the child had missed multiple days of kindergarten.2 When mother’s counsel sought to cross- examine the therapist, the referee stated that there was little time left in the single hour that had been set aside for the hearing. Further, she required that if mother’s counsel wished to cross- examine father’s witness at all, mother would have to pay the witness at her professional rate for the time spent on cross-examination. Moreover, the referee did not afford any time for mother to call her own witnesses nor did she continue the hearing for completion on another day. The referee’s actions denied mother an opportunity to be heard on a motion to change custody that had not even been filed and noticed for hearing.

The referee made several substantive errors in the course of making her ruling, including what appears to be a complete disregard of the substantive law governing a court’s decision when considering a change of custody. These requirements are well-known and clearly set out in Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003). First, the referee did not find that father had established proper cause, i.e., “one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken,” nor did the referee find that father had established a material change of circumstances, i.e., that “since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Id. at 511, 513 (emphasis in original). In the absence of such a finding, which presumably would only be made after a motion was filed and the nonmoving party had an opportunity to respond, it was improper for the referee to even consider a reevaluation of the best interest factors and the child’s custodial situation. See id. at 511, 513. Second, the referee failed to make a determination regarding the child’s established custodial environment even though such a finding is necessary in order to determine the burden of proof. See id. at 509. Third, the referee made no mention of the best interest factors prior to ordering the change in custody. See id. at 516. She appears to have realized her error after the parties and their attorneys had left the courtroom and later that day, without the presence of parties or counsel, stated her best-interest findings from the bench.

At a subsequent hearing, the referee stated that the failure to follow the Vodvarka framework did not matter because she had merely changed parenting time, not custody. This suggestion is directly contradicted by the language of the order, which expressly provided that father would be the “primary custodian of the child.” The referee also suggested that there was no such thing as “primary physical custody” in the law and that any issues regarding which parent provided the home for the child were merely parenting-time issues. Contrary to the referee’s statement that physical custody is not mentioned in the Child Custody Act, MCL 722.21 et seq., the phrase does appear in section 26a of that Act. See MCL 722.26a. Second, the meaning of the term “physical custody” has been well and repeatedly explained in caselaw. See Dailey v Kloenhamer, 291 Mich App 660, 670; 811 NW2d 501 (2011) . . . .

Another procedural error occurred when, rather than issuing a recommendation and proposed order, the referee stamped the judge’s name on the order changing custody, thereby giving it immediate effect and depriving mother of the opportunity to object to the referee’s recommendation before it became an enforceable order of the court. Absent a request for an emergency change (a request which was not made and for which there was no basis), during the 21-day period following a referee recommendation, the status quo is to remain in effect and if objections are filed, the objecting party is entitled to a de novo review or hearing before the judge. MCR 3.215(E)(4) . . . .

Mother timely objected to the March 4, 2015 order, and the case was reviewed by the judge who recognized that a full hearing had not taken place. However, rather than vacating the order and scheduling a proper hearing, the judge stated, “I am finding that the hearing itself was not complete and should be continued. As a consequence, I’m going to allow the interim order at this time to stand as an interim order until the evidentiary hearing is completed.” The judge also added the word “interim” to the order that had been entered on March 4.

Despite being directed to complete the hearing, the record on appeal contained no indication that it was ever completed. Accordingly, through the clerk’s office, we directed the parties to provide copies of orders entered since the judge’s order that the hearing be reconvened and completed. Based on the orders the Court thereafter received from the parties, we take judicial notice, MRE 201, of the subsequent proceedings.

Rather than completing the hearing as ordered by the judge, on May 11, 2015, the referee referred the case to the Friend of the Court for “an expedited review of parenting time.” Mother filed objections to this order and on June 29, 2015, the judge issued an order stating that “the custody hearing has not been completed and . . . the Referee in this matter shall complete the custody hearing forthwith.” Nevertheless, the court continued the “interim orders” until the conclusion of such hearing, which as of oral arguments before this Court had not yet been convened. Thus, the improperly decided and improperly issued March 4 order that changed primary physical custody from mother to father remains in effect.

The manner in which the change of custody was ordered was grossly improper. The order is vacated and the child shall be returned to the primary physical custody of mother. Thereafter, father, should he wish to do so, may file a proper motion for change of custody. Should he file such a motion, we further direct that all proceedings relevant be conducted on an expedited basis and that all such proceedings be conducted directly by the trial judge rather than referred to the referee. MCR 7.216(A)(7), (9).