Lessons to Be Learned from a Change of Custody that Went Wrong

Yesterday, September 12, 2019, the Court of Appeals issued a published opinion reversing a change of custody that was ordered by an Ionia County judge.  This means that the little three-year-old girl was living with mom, then she moved to dad’s custody, and now due to what we believe were technical errors made by dad, the child is moved back to mom’s custody. Most importantly, most readers will likely find that there are significant concerns about the mother’s alienating tactics, but even so, she received physical custody of their daughter.

So, what happened and what can be learned from this potential parental alienation case?

What happened?

Mom and dad married in 2014; their daughter was born in 2015 and they divorced in 2016.  The judge ordered that Mom would receive physical custody and dad received supervised parenting time because mom was nursing, the child just had undergone surgery, and dad was required to take parenting classes.

In January 2018, the parenting time order was amended, and dad received unsupervised every other weekend parenting time. Shortly after the entry of that order, mom denied the ordered parenting time claiming she was concerned about dad’s care of the child.  The judge ordered that mom had to comply with the court order or she would receive one day of jail for each time she violated the order.  Within weeks of that ruling, mom took the child to the pediatrician claiming she was fearful that dad had sexually and physically abused the child.  Child Protective Services and the police investigated mom’s claims but did not substantiate the claims.  Mom, however, refused to accept their findings and CPS later testified that they became concerned about mom’s mental health and emotional instability.

Dad filed a Motion for Change of Custody and after an evidentiary hearing received joint physical custody, which included five weeks of summer parenting time for dad.  Within months, mom denied the summer parenting time and she was ordered to serve 30 days of jail.  Dad filed another Motion for Change of Custody which was granted after a referee heard testimony from mom, dad and the child’s therapist. Mom appealed the Court’s ruling.  The record shows that dad did not have an attorney represent him during the appeal’s process, nor did he file the necessary response to the appeal.  The Court of Appeals reversed both custody orders, and thus, custody will be returned to the mother, and the father will once again receive every other weekend parenting time.

Why did the Court of Appeals Reverse Custody?

In a change of custody case, the moving parent must establish that proper cause exists or a change in circumstances occurred before the Court will review the request for change of custody.  Dad claimed that “Plaintiff’s actions in not supporting a relationship between [dad] and the child presented “concern for [mom’s] mental health””.  However, at the hearing, dad never offered any evidence that mom was mentally ill. The only testimony presented was from the CPS worker claiming she was concerned about mom’s mental health.

What Went Wrong?

The father in this case had a myriad of options to show a change in circumstances: mom failed to comply with court orders; mom repeatedly denied parenting time; mom  failed to listen to the opinion of experts (CPS and police); instead dad claimed mom was mentally ill and then failed to provide support for his claim.  Additionally, dad’s requests for a change of custody may have been a bit premature.  Although there are red flags that mom’s alienating behavior was parental alienation in the making, we recommend that clients wait with requesting a change of custody until they can clearly show a pattern of willful alienating behavior.

In family law cases, our clients often claim that the other parent exhibits mental illness.  We often do not disagree; however, we do not always pursue those claims.  If the other parent’s mental illness is undiagnosed, it is very difficult and expensive to pursue a diagnosis while the case is pending.  Logically, during a pending divorce and at a psychological evaluation, most parents will lie about or diminish any mental health problems and the report will merely indicate some deception.

The record does not reflect whether dad was represented during the custody trials.  The Court of Appeals record reflects that dad was not represented at the Court of Appeals and did not even try to represent himself.  Thus, the panel of three judges only received a brief (often consisting of up to 20 pages) with mom’s allegations. Dad never provided legal counter arguments. That said, dad’s difficulties arose when he filed his very first pleadings and overstated the facts or if mom was truly mentally ill, he should have proven those claims and retained an expert.

As a final thought, a Court of Appeals opinion does not provide all the facts of the case. When we represent clients at the Court of Appeals, we warn our clients that what they find important or inflammatory may not be the judges’ focus.  The transcripts and briefs may have included information that the judges considered but which they did not include in the opinion.  Some of those facts may have shed a different light on this case. 

Lessons learned…

1. Don’t overstate the facts.
2. Do not file a Change of Custody motion prematurely. Do so only when the facts support a change pursuant to Michigan law.
3. Even if your situation supports a change of custody, you cannot afford a technical error, and you are better protected from technical errors when you are represented by competent counsel.

If you are considering a Motion for Change of Custody, give us a call at (616) 285-0808. We’ve handled parental alienation cases since 1998, and we will gladly have a conversation with you about your options.