The Michigan Court of Appeals
(MCOA) vacated and remanded the trial court’s order in Fante v Nova,
Nos. 334735,
336085 saying of the changes made in this custody dispute that were
not a short removal, even though classified as "temporary".
"Removing a child for an indefinite time, however, equally obviously does
implicate the Child Custody Act. Likewise, once a child is in a new environment
for a significant length of time, the trial court must determine whether a new
established custodial environment exists and may not simply “revert” the child
back, even if the initial removal was intended to be temporary."
What was
it about this custody matter that caused the MCOA to vacate and remand with
such vitriol?
First, a short review of the
facts. In 2011, a consent judgment granted the parents joint custody and
plaintiff mother sole physical custody. On March 4, 2015, plaintiff was charged
misdemeanor child abuse and defendant filed a motion to change custody, which
was granted by a referee, calling the change a “placement” not a change in
custody. This order was affirmed by the court and stood until June 9, 2016 when
the evidentiary hearing set for that date was adjourned to June 29th. The court
nevertheless entered an order granting plaintiff mother temporary physical
custody of the children until the later hearing, meaning the children were
moved from the father’s home where they had been for over a year. When
defendant father didn’t appear on the 29th, the court dismissed the defendant’s
motion to modify custody.
The MCOA noted that the central
problem is that, although courts have the power to remove children from an
unsafe environment, calling the move “placement” or “temporary” or “emergency”
doesn’t change the fact such removal from an “established custodial
environment” is a change of custody. “Any modification of custody
is subject to the Child Custody Act” and requires the court to consider the
best-interest factors.
Also of concern to the MCOA was
that “by the time of the orders being appealed, the children had been in
defendant’s care” long enough for the children to have “an established
custodial environment with the defendant.” The court went on to note that it
didn’t matter how that environment was created, the trial court can’t change
placement without first finding “that a proper cause…sufficient to re-visit an
existing custody order” and then determine whether an established custodial
environment actually exists. A missing party, said the court, is not the basis
for “altering a child’s custody.”
The court in vacating and
remanding the court’s decision said that the outcome “may well have been
proper. However, if so, it was by accident.” Stating that the trial court’s
orders were an abuse of discretion because “the trial court simply failed to acknowledge
and comply with rules and procedures governing custody and parenting time
disputes.”
Labels: Child custody, Court of Appeals, established custodial environment, Macomb County, Michigan, removal, Speaker Law Firm, temporary placement
