MSC Justice Explains How Trial Court “Clearly Did Not Comply” With Child Custody Act
The Michigan Supreme Court recently denied leave to appeal in a parenting-time case – with one justice issuing her own concurrence, explaining how the trial court “failed to comply” with the Child Custody Act.
Justice Elizabeth M. Welch, in Neumann v Rogers (Docket No. 169435), pointed out that St. Clair County Circuit Court Judge John D. Tomlinson’s order “summarily suspending” the defendant-father’s parenting time “clearly did not comply with the Child Custody Act.” However, the justice said that she agreed with the Michigan Supreme Court’s denial of leave in the case because the defendant-father had since “regained his parenting time” and, as a result, “the appeal is moot.”
In her concurrence, Justice Welch noted that the defendant-father shared joint legal and physical custody of his 3-year-old child with the plaintiff-mother. In February 2025, the trial court issued a bench warrant for the defendant-father because he had accumulated $9,000 in child-support arrearages and did not appear at a scheduled show-cause hearing. The defendant-father subsequently appeared at a hearing in July 2025, where the St. Clair County trial court recalled the bench warrant and set the matter for a continued hearing at a later date. At this time, the defendant-father attempted to ask the trial court for help in enforcing his parenting time.
Justice Welch then set forth the trial court’s response to the defendant-father. “The transcript reveals that the trial court suspended defendant’s parenting time and linked the suspension to the payment of child support. Specifically, the court stated, ‘Because I’m going to tell you, when you have a bench warrant, you don’t get to have parenting time because I’m not going to have your kid … I don’t want you to get arrested with your kid sitting in the car.’ Defendant noted that the bench warrant was recalled that day and he asked if he could pick up his son. In response, the court stated, ‘[P]arenting time’s suspended until I see you on August 14th with 551 bucks.’ Defendant again questioned the legality of the court’s actions. Seven days later, on August 1, 2025, an order entered suspending defendant-father’s parenting time ‘until the Court considers parenting time on August 14, 2025, at the same time as his continued child support show cause.’ On September 30, 2025, plaintiff-mother and defendant-father came to an agreement through mediation pursuant to MCL 552.513. The agreement gave defendant-father parenting time from Thursday until Sunday each week – more than he had previously enjoyed. Defendant-father applied for leave to appeal from the trial court’s August 1 order. The Court of Appeals denied leave. Defendant-father now applies for leave to appeal in this Court.”
Justice Welch said that she wrote a separate concurrence “to highlight that defendant is correct on the merits. In summarily suspending defendant-father’s parenting time, the trial court failed to comply with the Child Custody Act, MCL 722.21 et seq.”
The Child Custody Act “establishes a process for modifying parenting time that is wholly independent from child support obligations,” Justice Welch said. She explained that, before modifying the parenting-time provisions of a prior custody order, the trial court must:
“determine the child’s established custodial environment by considering whom the child looks to for ‘”care, discipline, love, guidance and attention”’ at the time of the court’s decision, Sabatine v Sabatine, 513 Mich 276, 286 (2024) (citation omitted); see also id. at 288-290 and MCL 722.27(1)(c)”;
“determine whether the proposed modification will alter the child’s current established custodial environment and apply the correct burden of proof, see MCL 722.27(1)(c)”; and
“take testimony and make findings on the best interests of the child or the parenting time factors, see MCL 722.23 and MCL 722.27a(7).”
However, “[n]one of those proceedings occurred here,” Justice Welch wrote. “But the parties mediated a resolution, so the issues are now moot. As a result, I concur in the denial order.”
Justice Kimberly A. Thomas joined the statement of Justice Welch.
