Court Of Appeals Vacates Trial Court Order Modifying Custody Based Solely On In Camera Interview
Heather Aherton v Steven Aherton
Opinion Published: August 12, 2025 (Young, Letica, Korobkin)
COA Docket No. 372458
Wayne County Circuit Court
Holding: The Trial Court erred when it effectively changed physical custody based solely on an in camera interview with the children without making findings regarding whether the change would alter the established custodial environment and applying the appropriate burden of proof, whether modification was in the children’s best interests. The order was vacated and remanded.
Facts: In March 2022, the trial court granted a judgment of divorce and awarded joint physical and legal custody of the parties’ children. In February 2023, plaintiff-mother moved for sole physical and legal custody of the children, with a week on/week off schedule. After an evidentiary hearing on whether there was proper cause or change in circumstances to review parenting time and custody, the parties were referred to an unsuccessful mediation. In June 2024, the trial court entered an interim order modifying parenting time, and defendant-father was allowed parenting time on alternating weekends and every other week in the summer.
At an evidentiary hearing in July 2024, a visiting trial court judge conferred off the record with the parties and conducted an in camera interview with the children. After taking the bench, the trial judge asserted that the children had confirmed that defendant-father had threatened to kill the plaintiff-mother if the parenting time was changed. The trial judge indicated that this evidence was hearsay, but that he believed it more likely than not happened. The trial court remarked that the allegations were “extremely credible.” In an interim order released in August 2024, the trial court suspended defendant-father’s parenting time until further order from the court. At the end of August 2024, a final evidentiary hearing was held with a different trial court judge, but it was not concluded, and the interim order was not superseded by any other order.
Key Appellate Ruling:
The Trial Court erred when it effectively changed physical custody based solely on an in-camera interview with the children that should only be applied to the reasonable preference factor.
The Court of Appeals opined that the purpose of the Child Custody Act is to promote the best interests of the child in a stable environment, and when changing the established custodial environment by significantly altering parenting time the required evidence standard is heightened to clear and convincing. Typically, in-camera interviews with the children are limited to determining one best interest factor, the children’s parental preferences. It is used to reduce emotional trauma if the child chooses sides, and it limits the judge’s line of questioning, even if the rules of evidence do not apply. The Court further indicated that testimony other than the child’s preference must be taken in open court. Much like in Barretta v Zhitkov, 348 Mich App 539, 549; 19 NW3d 420 (2023), the Trial Court in this case did not take evidence or conduct an evidentiary hearing, which is clear legal error. The Trial Court effectively granted plaintiff-mother sole physical custody by completely suspending defendant-father’s parenting time without making the required findings under each best interest factor.
The Court of Appeals also held that the defendant-father was denied his due process rights when the Trial Court based its order of the in-camera interview that was not limited to child’s parental preferences. Other factual disputes require more fact finding, especially concerning issues of abuse or mistreatment, that cannot be “fairly and reliably resolved behind closed doors, outside the crucible of cross-examination, and with no opportunity to present evidence or create a record for appeal.” The in-camera interview is not a substitute for an evidentiary hearing.
Further, the Court of Appeals explained that, although the Trial Court could have issued an ex-parte order following the alarming allegations, it must first have considered facts established by admissible evidence, including affidavits, live testimony, documents, or otherwise. Here, the Trial Court granted sole physical custody to plaintiff-mother without supporting admissible evidence. The allegations were hearsay. Additionally, if an ex-parte order was issued, then the objecting party must have an opportunity for a prompt hearing under MCR 3.207(B)(6)(a). The Trial Court did not comply with the notice requirements of MCR 3.207, did not hold the necessary hearing within 21 days, and did not resolve the dispute within 28 days. Therefore, the Court of Appeals’ vacated the Trial Court’s order. [Note: It took 11 months from the filing of the appeal to reach a decision on this matter].
