Failing To Interview Children In Custody Case Was Not Reversible Error | Speaker Law
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Failing To Interview Children In Custody Case Was Not Reversible Error

Posted on Wednesday, July 22, 2020

Even though the trial court did not conduct an interview with the parties’ children regarding their custody preferences, the decision to grant the plaintiff-mother sole legal custody was appropriate, the Michigan Court of Appeals has ruled.

In Bauer v Waidelich (Docket No. 345756), the parties were divorced and were engaged in a custody battle. The St. Clair County Circuit Court ultimately awarded the plaintiff sole legal custody of the children, ages 11 and 9.

The defendant appealed. He argued, among other things, the trial court erred when it failed to conduct an interview with, and consider the reasonable preferences of, the children pursuant to MCL 722.23(i).

“We affirm,” the Court of Appeals said in a 2-1 decision. “Because ‘an interview is merely one avenue from which to adduce a child’s capacity to form a preference,’ we cannot say that the trial court’s decision not to interview the children in this case constitutes error requiring reversal.”

Judges Jonathan Tukel and Michael J. Riordan joined the majority decision.

Judge Kathleen Jansen dissented, saying the trial court’s “failure to interview the minor children to, at a minimum, determine if the minor children had the capacity to form a reasonable preference constitutes error requiring reversal.”


The plaintiff and the defendant went through an acrimonious divorce. Afterward, they engaged in a lengthy custody battle.

In this case, the parties had filed cross-motions seeking to modify the custody order and revise the parenting-time schedule. Both parties had requested sole legal custody in order to make medical and educational decisions for the children. Over the course of one year, the trial court held numerous evidentiary hearings and heard testimony from various witnesses, including doctors and therapists.

The “hotly disputed” issue in the case was the children’s medical care. The children had visited their pediatrician 28 times from October 2016 to May 2017. Between those visits, the defendant had also taken the children to after-hours medical clinics when they had stuffy noses and sore throats. Most of these visits resulted in the following diagnosis: ear infections, strep throat, stuffy nose, sore throat and sinus infection.

The plaintiff became concerned with the defendant’s “aggressive approach” to the children’s medical care and decided to seek sole legal custody. She claimed the visits to after-hours clinics constituted medical child abuse. She filed a complaint with Child Protective Services, which declined to investigate.

The defendant also filed a motion for sole legal custody. He alleged that each clinic visit was necessary. He noted that he never sought treatment for the children without the plaintiff’s consent and always tried to see the children’s pediatrician before taking the children to a clinic.

Various doctors testified the defendant was indeed aggressive in seeking treatment for the children, but that he acted appropriately and did not cross the line into medical abuse. The children’s counselor also testified that, although she was incapable of diagnosing the defendant with Munchausen’s syndrome by proxy, he did not display the traits associated with that disease. In addition, the defendant’s therapist testified that he did not have Munchausen’s syndrome by proxy.

The trial court granted the plaintiff sole legal custody. The defendant appealed. 

‘One Avenue’

On appeal, the defendant argued the trial court committed reversible error by not considering the children’s reasonable preferences regarding custody. Specifically, the defendant claimed that under Kubicki v Sharpe, 306 Mich App 525 (2014), the trial court’s failure to interview the children constituted error requiring reversal.

“We disagree,” the Court of Appeals wrote. “Indeed, in [the Kubicki] case, the trial court’s failure to conduct an interview of the child and consider the child’s reasonable preferences resulted in error requiring reversal. … However, ‘Kubicki did not announce a new legal mandate that every child over a certain age be interviewed to ascertain a reasonable preference.’ … Rather, this Court has recognized that not all children have the capacity to form such a preference.”

Citing Kubicki and Maier v Maier, 311 Mich App 218 (2015), the Court of Appeals also pointed out that “an interview is merely one avenue from which to adduce a child’s capacity to form a preference and the preference itself, and not the sine qua non from which that determination must be made.”

Next, the Court of Appeals explained the trial court in this case considered whether interviewing the children was necessary or beneficial, and ultimately decided that an interview was unnecessary. “The trial court reasoned that given the ages of the children and their maturity level, their input into the vary narrow issue impacting their legal custody as to who would be the best decision-maker with respect to their medical treatment would not be very beneficial to the trial court in reaching its decision.”

According to the Court of Appeals, the trial court said the parents agreed on scheduling issues but disagreed on “bigger picture things” and the abstract nature of the issue of proper medical care impacting the children’s legal custody would not be “illuminated” by interviewing them. “The court emphasized the nature of the difference between the legal authority to be the decision maker for the children and the authority to participate in concrete activities with the children. The trial court additionally noted that an interview only would serve to heighten the children’s anxiety, and that any input from the children would not be weighed heavily in its determination anyway.”

Therefore, the record “supports a finding that the abstract nature of the narrow issue of legal custody focused specifically on medical care and the maturity of the children were ‘circumstances peculiar’ to the lives of these children which would compromise their presumed capacity to form a preference,” the Court of Appeals held.

Other Arguments

The defendant presented additional arguments on appeal, including:

  • the trial court failed to make a threshold finding regarding a change in circumstances before considering the children’s best interests and no such change in circumstances existed.
  • the trial court improperly considered the routine medical decisions to have a bearing on joint legal custody.
  • the trial court based its determination of the best interests of the children on factual findings that were against the great weight of the evidence.

Regarding the change in circumstances argument, the Court of Appeals said the trial court considered whether the threshold had been met in its findings of fact and conclusions of law before it considered the best-interest factors in MCL 722.23. “The trial court was not required to hold a separate evidentiary hearing on the matter, nor was the trial court required to issue a separate ruling on the matter. Thus, defendant’s argument lacks any basis in the law.”

As for the routine medical decisions argument, the Court of Appeals observed that “this case straddles the line” when it comes to “normal parenting.” However, “most convincingly though, is that the parties’ failure to cooperate resulted in the children having not had their annual physical, vision, or dental appointments at the time of the evidentiary hearing. Perhaps such appointments are routine, but the failure of the parties to work together to meet the children’s basic medical needs cannot be classified as unimportant or insignificant. … Therefore, defendant’s claim of routineness fails.”

The Court of Appeals also rejected the best-interest analysis argument. “Because none of the[] contested factors is supported by evidence preponderating in defendant’s direction, the trial court’s findings must be affirmed.”


In her dissent, Judge Jansen said the trial court erred by failing to ascertain the reasonable preference of the children in MCL 722.23(i).

“It is undisputed that the trial court did not interview the minor children in this case in order to determine whether they had the capacity to form a preference, and whether they had, in fact, formed a preference,” Jansen wrote. “Besides indicating the children’s ages and the ‘nature of the issues presented,’ the trial court gave no basis for its belief that the minor children would be unable to express a reasonable preference. Further, there is nothing in the record … to suggest that any ‘circumstances peculiar’ to the minor children’s life would prevent them from having the capacity to form a preference. … In my view, this case requires that an actual inquiry have been made into the children’s capacity to express a reasonable preference in order to fulfill the requirements of MCL 722.23(i).”

After the Court of Appeals issued its decision, the defendant appealed to the Michigan Supreme Court, which denied leave.


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