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FAMILY LAW 25: Plaintiff granted attorney fees incurred in attending unnecessary hearings.

The parties have joint legal custody of the minor child. Initially, the parties agreed to joint physical custody and no child support. Beginning in September 2014, defendant was awarded primary physical custody. Plaintiff was granted parenting time mid-week and on alternating weekends. The parties’ relationship has been fraught with acrimony and poor communication. The Friend of the Court conciliator recommended that the parties participate in family and individual therapy with the goal of reducing the parties’ hostility towards one another. Defendant refused to participate, claiming that it was not in his or the child’s best interests.

Beginning in 2015 through 2018, defendant filed several unsuccessful motions attempting to restrict plaintiff’s parenting time. In March 2018, defendant filed a motion seeking sole legal custody, as well as a reduction of plaintiff’s parenting time and to have her parenting time supervised. The trial court treated the motion as a motion for reconsideration of a ruling it had earlier made on parenting time issues and denied the motion, noting that defendant had not established palpable error but had merely presented the same issues.

Defendant argued that the trial court did not comply with MCR 3.210(C)(8) before denying his motion to modify custody and parenting time, and that he established proper cause or a change in circumstances sufficient to warrant a best interest hearing.

MCL 722.27(1)(c) provides that a trial court may modify or amend a child custody order for proper cause shown or because of change of circumstances if doing so would be in the best interests of the child. In the context of a motion seeking a change in custody, to establish a proper cause, the movant must prove by a preponderance of the evidence that an appropriate ground for legal action exists, which should be relevant to at least one of the twelve statutory best interest factors and of such magnitude as to have a significant effect on the child’s well-being.

As the moving party, defendant was required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change of circumstances before the court could proceed to an analysis of whether the requested modification is in the child’s best interests. An evidentiary hearing is required before custody can be changed, but the preliminary determinations whether proper cause or change of circumstances allows further consideration does not necessarily require an evidentiary hearing.

In this case, the record shows that defendant’s motion to modify custody and parenting time was premised primarily on allegations that had been repeatedly raised and reviewed by the court. In December 2015, Child Protective Services promptly investigated defendant’s complaint and found that plaintiff’s house was clean and appropriate for minor children. CPS informed defendant that his repeated calls and complaints against the Plaintiff-mother, in which there was not a preponderance of evidence to support the complaint, are ‘counting against him’ at this point.

Ultimately, the trial court granted plaintiff reasonable attorney fees incurred in attending four unnecessary hearings and awarded her additional parenting time to make up for the times wrongfully denied by defendant.

If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. Seek the guidance of an experienced family law and divorce attorney who will be by your side every step of the way.

At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys represent parents throughout southeast Michigan with a wide range of custody-related matters.

Contact Aldrich Legal Services


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