Pro Se Plaintiff Wrongly Precluded From Presenting Evidence At Custody Hearing

In this case involving parties who represented themselves at a custody hearing, the trial court wrongly precluded the plaintiff from introducing any evidence beyond her own testimony at the hearing, the Michigan Court of Appeals has ruled.

The plaintiff and the defendant in Balzeski v LaVoie (Docket No. 375182) both appeared pro se (without an attorney) at an evidentiary hearing regarding custody of their 4-year-old child. At the hearing, the Kent County Circuit Court did not allow the plaintiff to admit any evidence other than her own testimony. The trial court ultimately modified the custody arrangement.

The plaintiff appealed. She argued the trial court erred by 1) precluding her from calling any witnesses and 2) not receiving her exhibits into evidence.

The Court of Appeals agreed with the plaintiff, vacating the trial court’s order and remanding the case.

“We do not think that it was a reasonable limitation to completely preclude plaintiff from introducing her proffered evidence, especially considering that plaintiff was a pro se litigant navigating the trial court procedures without a scheduling order,” the Court of Appeals wrote.

According to the Court of Appeals, pro se litigants should be given “some leniency” when pursuing their claims.

Judge Michael J. Kelly, Judge James Robert Redford and Judge Kathleen A. Feeney were on the panel that issued the unpublished opinion.

Background

The plaintiff and the defendant had entered into a consent judgment regarding custody of their child. In August 2024, the defendant filed a motion in the Kent County Circuit Court to modify the custody arrangement. Basically, the defendant requested “more custody” and alleged the plaintiff was not abiding by the terms of the consent judgment.

After finding there was a change in circumstances sufficient to review the custody arrangement,  the trial court referred the matter to the Kent County Friend of the Court (FOC) for an investigation and recommendation. The FOC submitted a report recommending that 1) the parties share joint physical custody, 2) the defendant exercise sole legal custody and 3) the parties exercise full alternating weeks of parenting time.

The plaintiff objected to the FOC recommendations. She filed a motion for sole legal and physical custody, claiming the defendant had stalked, harassed and verbally abused her and had obstructed the child’s medical care.

Thereafter, the trial court held an evidentiary hearing. Both parties appeared pro se at the hearing, where the plaintiff, the defendant and the FOC investigator all testified. In addition, the trial court “took an offer of proof that plaintiff’s friends and family gathered in support would affirm her story.” However, the trial court did not allow the plaintiff to present any evidence other than her own testimony, finding that “her evidence should have been received through the clerk’s office so that defendant had a chance to see it before the hearing.”

The trial court ultimately adopted the FOC’s proposed order, awarding the defendant sole legal custody and granting the parties joint physical custody, with full alternating weeks of parenting time.

The plaintiff appealed.

‘Some Leniency’ Allowed

On appeal, the plaintiff argued the trial court erred in two ways: 1) by precluding her from calling her friends and family as witnesses and 2) by not receiving her exhibits into evidence.

The Court of Appeals agreed, citing MCR 2.401(B)(2), which governs pretrial scheduling orders.

“Witness lists and exhibit lists are elements of discovery, and their purpose is to avoid trial by surprise by informing the parties of the evidence that may be presented at trial,” the Court of Appeals said. “In this case, the record does not reflect that the trial court ever entered a scheduling order in accordance with these proceedings at or after the court scheduled the March 2025 evidentiary hearing. In failing to comply with MCR 2.401(B)(2), the trial court never instructed the parties that they were required to exchange witness lists and exhibits before the hearing. The trial court ‘must exercise reasonable control over the mode and order of examining witnesses and presenting evidence,’ and can therefore reasonably limit the presentation of evidence. MRE 611.”

In this case, “[w]e do not think that it was a reasonable limitation to completely preclude plaintiff from introducing her proffered evidence, especially considering that plaintiff was a pro se litigant navigating the trial court procedures without a scheduling order,” the Court of Appeals stated, again referencing MCR 2.401(B)(2) and MRE 611.

“Pro se litigants are allowed some leniency in pursuing their claims,” the Court of Appeals observed. “We therefore conclude that the trial court abused its discretion in this regard.”

As a result, the Court of Appeals vacated the trial court’s order and remanded the case for further custody proceedings. “On remand, the trial court may consider the evidence that it already examined in addition to any new evidence.”