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***Update*** The Livingston County judge who presided over this case, Judge Reader, filed a motion in the Court of Appeals to correct the opinion discussed in this blog. However, before the Court of Appeals ruled on Judge Reader's motion, the mother of the child tragically passed away. On October 21, 2015, the Court of Appeals issued an order that stated that some of the facts in its September 15, 2015 Opinion were in error. Instead of correcting the opinion, the Court of Appeals decided to entirely vacate the September 15, 2015 Opinion.  It then dismissed the case as moot. The Opinion is no longer available on the Court of Appeals' register of actions and now links to the order vacating the Opinion.
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This week, the Court of Appeals released a published opinion in McConchie v Voight, Docket No. 326651 (September 15, 2015) (Shapiro, J, author), addressing the "grossly improper" actions of Judge Reader of the Livingston County Circuit Court and one of the Friend of the Court referees in regard to the custody of the parties' child.  Slip op at 5. The referee and judge violated a host of well-established procedural and substantive requirements in awarding the father with sole physical custody. The basic background is that the parties had a child together in 2009 and subsequently entered various consent orders that resulted in the mother having sole physical custody and the parties having joint legal custody, with reasonable parenting time for the father. In April 2014, the father filed a motion for change of custody based on an incident where the mother had fallen asleep and the child was locked out of the home. In September 2014 the referee found the mother had the established custodial environment, and the father had not proven there was proper cause or change in circumstances to warrant a change in the established custodial environment. The referee also ordered the parties into family therapy and set a scheduled a "parenting time hearing" in March 2015. At this hearing, the referee ordered the immediate transfer of sole physical custody from the mother to the father.

The Court of Appeals explained the shockingly expansive list of errors committed by the FOC referee and the trial court. First, the referee violated the mother's constitutional due process rights by changing physical custody even though the father had not filed a motion to do so and by interfering with her ability to cross-examine the family therapist and offer her own witnesses. The referee first indicated there was very little time for cross-examination and if the mother wanted to cross-examine the therapist, she would have to pay the therapist her hourly professional rate. The referee also did not allow the mother to call any of her own witnesses and did not continue the hearing to allow mother an opportunity to be heard.

The referee also committed substantive errors in changing custody to such a degree that the Court of Appeals described her decisions as “what appears to be a complete disregard for the substantive law governing a court's decision when considering a change of custody.” Slip op at 3. The referee did not make findings on proper cause or change in circumstances, determine the child's established custodial environment, and made no best interest findings before changing custody. Apparently, the referee realized her error and decided to make a ruling from the bench on the best interest factors without the parties or their counsel present. At a later hearing, incredibly, the referee argued that her failure to follow the well-established law governing changes of custody did not matter because 1) she did not change custody (despite the directly contradictory language in her order) and 2) there is no such thing in the law as "primary physical custody." 

The Court of Appeals addressed the referee's claim that the law does not have anything called "primary physical custody." First, the Court of Appeals indicated that caselaw repeatedly defines and describes physical custody and MCL 722.26a of the Child Custody Act specifically mentions physical custody. The Court of Appeals recognized that there is not always a clear distinction between mere changes in parenting time and changes in an established custodial environment. However, the Court of Appeals held that in this case that the change was a change in custody was clear because the order changed sole physical custody to father along with switching parenting time to give them the exact opposite of what they had before, meaning the mother only had every other weekend and a weekday visit. The Court of Appeals also noted that, despite her later claims, the referee seemed to be aware that her order changed custody because she went back on the record to specifically address the best interest custody factors, not the parenting time factors.

The referee and trial court also engaged in egregious procedural errors wherein the trial court improperly delegated its judicial power to the referee. Specifically, "rather than issuing a recommendation and proposed order," as required under the Court Rules, with an opportunity for the parties to object and invoke the right to a de novo hearing by the trial court, "the referee stamped the judge's name on the order changing custody." Slip op at 4 (emphasis added). The mother was, therefore, deprived of her right to object to the order and have a de novo hearing. While the trial court has authority to make a referee's interim order take immediate effect pending a judicial hearing under MCR 3.215(G)(1), the trial court cannot give immediate interim effect to a referee's order that changes custody under MCR 3.215(G)(3)(b). Further, the trial court itself was not even the authority giving interim effect to the order. The Court of Appeals held that the referee was completely without authority to give interim effect to its order, and "the judge cannot give carte blanche permission for the referee to sign his name without the judge ever seeing the order or knowing anything about the case." Slip op at 5.

A final issue was that after the mother objected to the referee's order, the judge held a hearing and labeled the referee's order as "interim" and ordered the evidentiary hearing be completed. This was not sufficient to correct the referee's error, as the trial court had no authority to give interim effect to a referee's order changing custody, especially where none of the substantive requirements had been met. Perhaps unsurprisingly, after the trial court's order, the referee again did not do as required and did not complete the hearings as ordered by the trial court.

The Court of Appeals entered a very specific form of relief because of the highly egregious actions of the trial court and the referee. In addition to vacating the trial court's order and returning primary physical custody to the mother, the Court of Appeals indicated that the father must file a motion to change custody for any proceedings to proceed regarding custody. If the father did file such a motion, the proceedings were to be expedited and the trial judge had to conduct the hearings rather than referring them to the referee.

In an interesting twist, Judge Sawyer dissented from the Court of Appeals decision, not because he disagreed regarding the numerous errors committed, but because he did not agree with the relief provided. Judge Sawyer thought the most appropriate remedy was not to reverse or vacate the change of custody, but to remand the issue to the trial court with directions that the trial court directly conduct the evidentiary hearing and reach a final resolution instead of having the trial court "start over." Judge Sawyer found this appropriate because of the trial court's labeling of the order as a temporary order pending a full resolution of the custody issue.

In light of the current uproar regarding published versus unpublished opinions, it is interesting that this opinion was one chosen to be published. Certainly, the case is fascinating and shows just how wrong cases can go when procedural, constitutional, and substantive requirements are ignored. However, all of the law in the case is well-established and clear, making it an interesting choice for publication, as normally published opinions are used to address novel issues. Regardless of the reason for publication, this case certainly demonstrates why procedural and substantive requirements are in place to ensure an opportunity to be heard and to prevent the unnecessary removal of a child from an established custodial environment without proof of the proper bases.