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Timing is Everything in Child Custody

Posted on Thursday, May 17, 2018

The Michigan Court of Appeals (MCOA) vacated and remanded the trial court’s order in Fante v Nova, Nos. 334735, 336085 saying of the changes made in this custody dispute that were not a short removal, even though classified as "temporary". "Removing a child for an indefinite time, however, equally obviously does implicate the Child Custody Act. Likewise, once a child is in a new environment for a significant length of time, the trial court must determine whether a new established custodial environment exists and may not simply “revert” the child back, even if the initial removal was intended to be temporary."

What was it about this custody matter that caused the MCOA to vacate and remand with such vitriol?

First, a short review of the facts. In 2011, a consent judgment granted the parents joint custody and plaintiff mother sole physical custody. On March 4, 2015, plaintiff was charged misdemeanor child abuse and defendant filed a motion to change custody, which was granted by a referee, calling the change a “placement” not a change in custody. This order was affirmed by the court and stood until June 9, 2016 when the evidentiary hearing set for that date was adjourned to June 29th. The court nevertheless entered an order granting plaintiff mother temporary physical custody of the children until the later hearing, meaning the children were moved from the father’s home where they had been for over a year. When defendant father didn’t appear on the 29th, the court dismissed the defendant’s motion to modify custody.

The MCOA noted that the central problem is that, although courts have the power to remove children from an unsafe environment, calling the move “placement” or “temporary” or “emergency” doesn’t change the fact such removal from an “established custodial environment” is a change of custody. “Any modification of custody is subject to the Child Custody Act” and requires the court to consider the best-interest factors

 Also of concern to the MCOA was that “by the time of the orders being appealed, the children had been in defendant’s care” long enough for the children to have “an established custodial environment with the defendant.” The court went on to note that it didn’t matter how that environment was created, the trial court can’t change placement without first finding “that a proper cause…sufficient to re-visit an existing custody order” and then determine whether an established custodial environment actually exists. A missing party, said the court, is not the basis for “altering a child’s custody.”

The court in vacating and remanding the court’s decision said that the outcome “may well have been proper. However, if so, it was by accident.” Stating that the trial court’s orders were an abuse of discretion because “the trial court simply failed to acknowledge and comply with rules and procedures governing custody and parenting time disputes.”

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