Modification of the Custody Order
A. In General
§3.24 The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).
While the parties may stipulate to a temporary custody arrangement during the pendency of a divorce and the court may enter a temporary order pursuant to that stipulation, the resulting order is not a “previous” judgment or order for the purposes of MCL 722.27(1)(c). Under the statute, no previous judgment or order may be modified unless there is a showing of proper cause or a change of circumstances. However, where no evidentiary hearing setting custody is held but the parties’ stipulation is the sole basis for a temporary order, that order is not a “previous” judgment or order and therefore, no change of circumstances need be shown for the order to be modified. To have the custody arrangement modified, the movant must present clear and convincing evidence that the modification is in the best interests of the child. Thompson v Thompson, 261 Mich App 353, 683 NW2d 250 (2004).
If the change of custody is raised in a juvenile proceeding, the circuit court must make clear that it is exercising its jurisdiction under the Child Custody Act and comply with the statutory and procedural requirements of the act, including making findings under the best interests factors. Department of Human Servs v Johnson (In re AP), 283 Mich App 574, 608, 770 NW2d 403 (2009).
There is ample caselaw holding that a trial court cannot order a change of custody without first holding a hearing. See generally Dick v Dick, 210 Mich App 576, 587, 534 NW2d 185 (1995); Mann v Mann, 190 Mich App 526, 532–533, 476 NW2d 439 (1991); Schlender v Schlender, 235 Mich App 230, 233, 596 NW2d 643 (1999). However, in 2001, the supreme court amended MCR 3.210 to include a new subsection that provides: “In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.” MCR 3.210(C)(8).
A request for an evidentiary hearing should be granted when factual questions are contested. Bielawski v Bielawski, 137 Mich App 587, 358 NW2d 383 (1984) (no abuse of discretion in denying evidentiary hearing on motion for change of domicile where nonmoving party did not contest issues material to decision); see also Schlender v Schlender, 235 Mich App 230, 596 NW2d 643 (1999) (local court rule that conditioned right to custody hearing on offer of proof of anticipated evidence improperly restricted parties’ right to evidentiary hearing on motion for change of custody). The court may not change custody solely on the basis of a Friend of the Court recommendation. Mann v Mann, 190 Mich App 526, 476 NW2d 439 (1991). It was error for the trial court to enter a stipulated order to change custody without making any independent determination regarding the best interests of the child. Phillips v Jordan, 241 Mich App 17, 614 NW2d 183 (2000).
The evidentiary hearing held to determine if a change in a child’s domicile is warranted under the 100-mile rule of MCL 722.31 is not sufficient to also determine a change of custody request under MCL 722.23. The trial court is obligated to hold a separate hearing on a change of custody request. Grew v Knox, 265 Mich App 333, 694 NW2d 772 (2005). An evidentiary hearing is mandated before custody can be modified, even on a temporary basis. Id.
If a motion for change of custody is filed during the time a parent is in active military duty, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child’s placement existing on the date the parent was called to active military duty. The court may, however, enter a temporary custody order if there is clear and convincing evidence that it is in the best interests of the child. On a parent’s return from active military duty, the court must reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court may not consider the parent’s absence due to military duty in a best interests of the child determination. MCL 722.27(1)(c), as amended by 2005 PA 328. [A]
SOURCE
[a]
Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03
(last updated 04/22/2011
A. In General
§3.24 The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).
While the parties may stipulate to a temporary custody arrangement during the pendency of a divorce and the court may enter a temporary order pursuant to that stipulation, the resulting order is not a “previous” judgment or order for the purposes of MCL 722.27(1)(c). Under the statute, no previous judgment or order may be modified unless there is a showing of proper cause or a change of circumstances. However, where no evidentiary hearing setting custody is held but the parties’ stipulation is the sole basis for a temporary order, that order is not a “previous” judgment or order and therefore, no change of circumstances need be shown for the order to be modified. To have the custody arrangement modified, the movant must present clear and convincing evidence that the modification is in the best interests of the child. Thompson v Thompson, 261 Mich App 353, 683 NW2d 250 (2004).
If the change of custody is raised in a juvenile proceeding, the circuit court must make clear that it is exercising its jurisdiction under the Child Custody Act and comply with the statutory and procedural requirements of the act, including making findings under the best interests factors. Department of Human Servs v Johnson (In re AP), 283 Mich App 574, 608, 770 NW2d 403 (2009).
There is ample caselaw holding that a trial court cannot order a change of custody without first holding a hearing. See generally Dick v Dick, 210 Mich App 576, 587, 534 NW2d 185 (1995); Mann v Mann, 190 Mich App 526, 532–533, 476 NW2d 439 (1991); Schlender v Schlender, 235 Mich App 230, 233, 596 NW2d 643 (1999). However, in 2001, the supreme court amended MCR 3.210 to include a new subsection that provides: “In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.” MCR 3.210(C)(8).
A request for an evidentiary hearing should be granted when factual questions are contested. Bielawski v Bielawski, 137 Mich App 587, 358 NW2d 383 (1984) (no abuse of discretion in denying evidentiary hearing on motion for change of domicile where nonmoving party did not contest issues material to decision); see also Schlender v Schlender, 235 Mich App 230, 596 NW2d 643 (1999) (local court rule that conditioned right to custody hearing on offer of proof of anticipated evidence improperly restricted parties’ right to evidentiary hearing on motion for change of custody). The court may not change custody solely on the basis of a Friend of the Court recommendation. Mann v Mann, 190 Mich App 526, 476 NW2d 439 (1991). It was error for the trial court to enter a stipulated order to change custody without making any independent determination regarding the best interests of the child. Phillips v Jordan, 241 Mich App 17, 614 NW2d 183 (2000).
The evidentiary hearing held to determine if a change in a child’s domicile is warranted under the 100-mile rule of MCL 722.31 is not sufficient to also determine a change of custody request under MCL 722.23. The trial court is obligated to hold a separate hearing on a change of custody request. Grew v Knox, 265 Mich App 333, 694 NW2d 772 (2005). An evidentiary hearing is mandated before custody can be modified, even on a temporary basis. Id.
If a motion for change of custody is filed during the time a parent is in active military duty, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child’s placement existing on the date the parent was called to active military duty. The court may, however, enter a temporary custody order if there is clear and convincing evidence that it is in the best interests of the child. On a parent’s return from active military duty, the court must reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court may not consider the parent’s absence due to military duty in a best interests of the child determination. MCL 722.27(1)(c), as amended by 2005 PA 328. [A]
SOURCE
[a]
Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03
(last updated 04/22/2011
2 comments:
Nice post, thanks for sharing.
Child Custody Attorney Norman ok
Hi, nice post. Well what can I say is that these is an interesting and very informative topic. Thanks for sharing your ideas, its not just entertaining but also gives your reader knowledge. Good blogs style too, Cheers!
- The custody lawyer danvers ma
Post a Comment