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Trial Court Wrongly Modified Divorced Parties’ Custody Order

Posted on Wednesday, June 29, 2022

An award of sole legal custody to the father of the parties’ minor child must be reversed, the Michigan Court of Appeals has ruled, because the trial court did not exercise “a proper degree of caution” and the issue of legal custody was not properly before the trial court.

In Halstead v Halstead (Docket No. 358181), the plaintiff-father and the defendant-mother were divorced. They had joint legal custody of their child, KH, while the mother had sole physical custody. The plaintiff subsequently filed a motion, asking the Crawford County Circuit Court to give him physical custody of KH. The plaintiff, however, did not request legal custody.

The trial court, on its own, modified the custody of KH from joint legal between the parties to sole legal custody with the plaintiff. The defendant appealed.

The Court of Appeals reversed and remanded.

“We conclude that the trial court was not absolutely prohibited from sua sponte considering legal custody despite plaintiff only requesting a change of physical custody, but we conclude that it was error for the trial court to do so under the particular circumstances of this case,” the Court of Appeals said. “The trial court did not exercise a proper degree of caution in this matter, and the facts do not support the trial court’s conclusion that legal custody was properly before it.”

Judges Amy Ronayne Krause and Colleen A. O’Brien joined the per curiam opinion. Judge Christopher M. Murray concurred in a separate opinion.

Background

The parties were divorced in 2012. They had three children together during the marriage, two of whom are now adults and are not involved in these custody proceedings. The parties’ third child, KH, was born in early 2012 just prior to their divorce. The divorce judgment granted the plaintiff and the defendant joined legal custody and joint physical custody of the two older children. The defendant was granted sole physical custody of KH with parenting time “as agreed between parties.”

In 2015, the plaintiff filed a motion to establish parenting time with KH and for joint physical custody of KH. The trial court granted the plaintiff parenting time but denied the motion for joint physical custody, finding he did not establish proper cause or a sufficient change of circumstances. Meanwhile, both parties entered into relationships with new partners.

The plaintiff filed an ex parte motion for temporary physical custody of KH in April 2020, claiming that a change in circumstances placed KH in jeopardy with the defendant. The plaintiff sought the change of custody on an emergency and ex parte basis because the courts were closed at the time due to the COVID-19 pandemic. The trial court denied the motion, finding the plaintiff did not plead facts warranting relief.

A short time later, the plaintiff refused to return KH following his weekend visitation that was scheduled to end on May 17, 2020. The defendant subsequently filed a complaint, alleging the plaintiff was violating the parties’ parenting-time order. The trial could held the plaintiff violated the parenting-time order, ordered the plaintiff to return KH to the defendant immediately and ordered the defendant receive make-up parenting time. It also ordered the parties to communicate regarding parenting time by text message through the defendant’s new partner.

In June 2020, the plaintiff filed a motion to modify custody and parenting time. The plaintiff asserted that KH had an established custodial environment with him and that KH previously had an established custodial environment with defendant’s former partner, who the plaintiff alleged had actually been KH’s primary caretaker. The plaintiff contended that he could provide KH with support and stability, and the defendant could not. The plaintiff never sought to change legal custody of KH and the evidentiary hearings that ensued focused on physical custody. At the conclusion of the hearings, the referee found no proper cause or change of circumstances that would warrant consideration of a change in custody. The referee recommended that the trial court deny the plaintiff’s motion. The plaintiff objected to the referee’s recommendation.

The trial court issued a bench ruling, saying it agreed the plaintiff did not establish proper cause or a change of circumstances to warrant a change in KH’s physical custody. The trial court then, sua sponte, went beyond the plaintiff’s objections and emphasized it believed the defendant had made a mistake in 2016 that may have warranted changing physical custody at that time, but on the basis of the defendant’s subsequent recovery, the plaintiff’s motion was filed too late. However, the trial court continued: “I am gonna change legal custody. I’m gonna leave physical custody as it is. I’m gonna tell both parties that – and this is probably more important for you [defendant]. Is that it has the potential to change physical custody later if it’s not being followed. I’m gonna grant sole legal custody to [plaintiff] because I think there have been some issues here in terms of some insight and decision making by you [defendant].”

The trial court entered an order on March 12, 2021, modifying the legal custody of KH from joint legal custody between the parties to sole legal custody with the plaintiff. The defendant moved for reconsideration. The trial court rejected the defendant’s arguments that it was not permitted to change legal custody unrequested or without finding proper cause or a change of circumstances. The trial court, however, agreed the parties were entitled to supplement the record and that it would need to engage in an analysis of the best-interests factors.

After another evidentiary hearing, the trial court issued a bench ruling. The trial court “impliedly recognized” that it could not change established legal custody without finding proper cause or change of circumstances. However, the trial court stated it was unclear whether the parties “had any kind of a joint established custodial environment with regard to legal custody” and, even if they did, their failure to communicate and cooperate had destroyed any established custodial environment. The trial court held that it needed to determine the best interests of KH by a preponderance of the evidence, analyzed each of the statutory best-interests factors in MCL 722.23 and ruled they generally favored the plaintiff. Therefore, the trial court held that it had properly awarded the plaintiff sole legal custody.

The defendant appealed. 

Trial Courts Must ‘Be Cautious’

On appeal, the Court of Appeals first addressed the defendant’s argument the trial court was not permitted to consider or change legal custody because the plaintiff never requested a change in legal custody.

The trial court was not “absolutely prohibited” from sua sponte considering legal custody although the plaintiff only requested a change of physical custody, the Court of Appeals noted. However, under the facts presented, “it was error for the trial court to do so under the particular circumstances of this case.”                                

According to the Court of Appeals, the fact that no party adequately briefed an issue does not necessarily mean a trial court is precluded from considering the issue. Nor is this dispositive of whether the issue is properly before the trial court. “Nevertheless, we cannot conclude that the only prerequisite to a trial court raising an issue sua sponte is whether the court affords the parties an opportunity to address the issue.”

Both legal and physical custody fall within a “child custody dispute,” the Court of Appeals explained. “Therefore, where one is directly before a court, the other could be properly also before the court by necessary implication, even if not expressly raised by either party. Nevertheless, they are sufficiently distinct that one does not necessarily implicate the other. In other words, where one form of custody is expressly before the court, the court could, under proper circumstances, conclude that it was necessary to also address the other form of custody. This is especially true given the circuit court’s de novo review of the referee’s findings. We need not consider under which circumstances such an implication would arise, because they clearly did not arise in this case and under these circumstances.”

Trial courts “ought to be cautious in addressing issues or granting relief outside the bounds of the parties’ requests, even where such consideration is not precluded,” the Court of Appeals said. “The trial court did not exercise a proper degree of caution in this matter, and the facts do not support the trial court’s conclusion that legal custody was properly before it. Not only did plaintiff never seek a change in legal custody, [but] plaintiff never even tried to involve himself in the kinds of decisions implicated by legal custody.”

The trial court erred in finding that legal custody was properly before it, such that it could consider changing legal custody, the Court of Appeals said. “Furthermore, … even if the trial court’s sua sponte consideration of legal custody had been proper under the circumstances, the trial court committed additional errors that would independently require reversal.”

Other Errors

The Court of Appeals continued by addressing various other errors the trial court made, including that it wrongly stated it was not required to find proper cause or change of circumstances before changing KH’s legal custody.

“Technically, there was no ‘moving party’ seeking to change KH’s legal custody in this matter, but plaintiff effectively embraced that role and should be treated as such,” the Court of Appeals observed. “The trial court initially held that it was not obligated to make a finding of proper cause or change of circumstances before changing legal custody, because it believed doing so would not alter the child’s established custodial environment. This was incorrect.”

The Court of Appeals explained that a change from joint legal custody to sole legal custody altered the decision-making authority regarding KH’s welfare. “The trial court is required to determine whether there was proper cause or change of circumstances as a prerequisite to determining whether there was an established custodial environment. … The trial court made a clear legal error by concluding that a change in legal custody does not affect a child’s established custodial environment merely because the child’s physical environment might not change. In addition, changing who has the authority to make major decisions in a child’s life would inevitably affect, at least to some extent, how the child interacts with either parent. … Nowhere did the trial court reflect on what harm, if any, KH was suffering. Rather, … the trial court was clearly concerned with the effect the parties’ difficulties cooperating was having on plaintiff. Therefore, the trial court never satisfied the substantive prerequisites to engaging in that consideration.”

In addition, the trial court’s ruling lacked “any explanation of how KH was actually or potentially suffering harm as a result of the parties having joint legal custody and difficulties cooperating,” the Court of Appeals said. Presuming the evidence reflected a functional absence of joint legal custody, “the evidence did not support a finding of no established custodial environment,” the appeals court said, citing MCL 722.27(1)(c). That statute says: “The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

The parents’ “ability and inclination to cooperate with each other does not intrinsically affect any of the above considerations,” the Court of Appeals wrote. “Furthermore, the evidence showed that defendant had, for an appreciable time, an established history of making major decisions for KH. On this record, the evidence simply cannot support a finding that there was no established custodial environment with defendant relevant to physical or legal custody, nor can the evidence support any finding of proper cause or change of circumstances.”

In conclusion, “[w]e note briefly that were we to review the trial court’s findings regarding the statutory best-interests factors, we would not agree with all of them,” the Court of Appeals said. “However, the trial court was, on the basis of a multitude of independent errors, precluded from reaching the best-interests factors in the first place.”

Therefore, the Court of Appeals reversed the trial court’s order changing KH’s legal custody to be exclusively with the plaintiff and remanded the matter for further proceedings. “We caution that if legal or physical custody is further considered, it would be improper and impermissible to use the erroneous change of legal custody that gave rise to this appeal, or any of the consequences thereof, to ‘bootstrap’ a finding of just cause or change of circumstances at any future date.”

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