COA Examines Need for Evidentiary Hearing in Child Threshold Case | Speaker Law
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COA Examines Need for Evidentiary Hearing in Child Threshold Case

Posted on Tuesday, May 8, 2018

Change in circumstances often lead to a motion to change custody. In D’itri v Bollinger, unpublished per curiam opinion of the Court of Appeals, Docket 337815 (2017), the mother of the child filed a motion to change custody claiming there was a change in circumstances in the child’s living situation. Slip op at 2. The father’s wife passed away, and the mother claimed the father stopped allowing the child to partake in her extra-curricular activities, did not provide healthy meals, and did not provide a clean home. The child also felt a loss of emotional connection with her father after the step-mother’s death, including frequently eating dinner alone in her room and the child texting the mother that she wanted to see a therapist and was “going insane.” The father acknowledged that the death of his wife had been a difficult adjustment for him, but denied this was grounds to change custody. A conciliator conference was held to determine if it was proper to revisit custody, and the conciliator recommended a change in custody. The lawyer guardian at litem also recommended a change of custody. The trial court denied the mother’s motion without an evidentiary hearing and stated she did not have proper cause.

On appeal, the Court of Appeals noted there are only two scenarios where an evidentiary hearing is not necessary for the Threshold Question: when the facts are not disputed and when the alleged facts would not establish proper cause. The trial court did not hold an evidentiary hearing even after the recommendation of the conciliator and lawyer guardian at litem found that the facts would require a change of custody. The trial court should have determined whether an evidentiary hearing was necessary, which it did not do. The Court of Appeals determined that the failure to hold an evidentiary hearing on the threshold question when the facts were disputed was clear legal error. The facts alleged in the motion, if true, would constitute proper cause or change in circumstances.

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