Change in circumstances often lead to a motion to change custody. In D’itri v Bollinger, unpublished per curiam opinion of the Court of Appeals, Docket 337815 (2017), the mother of the child filed a motion to change custody claiming there was a change in circumstances in the child’s living situation. Slip op at 2. The father’s wife passed away, and the mother claimed the father stopped allowing the child to partake in her extra-curricular activities, did not provide healthy meals, and did not provide a clean home. The child also felt a loss of emotional connection with her father after the step-mother’s death, including frequently eating dinner alone in her room and the child texting the mother that she wanted to see a therapist and was “going insane.” The father acknowledged that the death of his wife had been a difficult adjustment for him, but denied this was grounds to change custody. A conciliator conference was held to determine if it was proper to revisit custody, and the conciliator recommended a change in custody. The lawyer guardian at litem also recommended a change of custody. The trial court denied the mother’s motion without an evidentiary hearing and stated she did not have proper cause.
On appeal, the Court of Appeals
noted there are only two scenarios where an evidentiary
hearing is not
necessary for the Threshold Question: when the facts are not disputed and when
the alleged facts would not establish proper cause. The trial court did not
hold an evidentiary hearing even after the recommendation of the conciliator
and lawyer guardian at litem found that the facts would require a change of
custody. The trial court should have determined whether an evidentiary hearing
was necessary, which it did not do. The Court of Appeals determined that the
failure to hold an evidentiary hearing on the threshold question when the facts
were disputed was clear legal error. The facts alleged in the motion, if true,
would constitute proper cause or change in circumstances.Labels: Change of Circumstances, Family Law Appeals, Ingham County, lansing, Motion to Change Custody, proper cause, Vodvarka