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FAMILY LAW 37: Referee recommended against changing legal custody or parenting time.

In this case, Plaintiff moved to modify joint legal custody or parenting time. Plaintiff and defendant had joint legal custody and a parenting-time schedule with the child, primarily living with plaintiff during the school year and with defendant during the summer. Plaintiff asked for sole legal custody and additional parenting time during the summer.

Plaintiff requested sole legal custody, arguing that she and defendant had difficulty co-parenting and that defendant would not agree to medical treatment for the diagnosis and treatment of ADHD, need for orthodontic work, and need for vision testing and glasses. Plaintiff also requested an alternating weekly or biweekly schedule during the summer, which would increase her overall parenting time.

At the referee hearing, plaintiff testified about defendant’s nonparticipation in the diagnosis and treatment ADHD. At one point, defendant took the child off his stimulant medication, which required plaintiff to seek additional treatment to identify a more suitable medication. With the aid of a pediatric psychiatrist, whom defendant refused to see or take the child to, the child went on a suitable nonstimulant medication.

On the issue of parenting time, plaintiff opposed increasing defendant’s overnights during the school year to balance out her proposed expanded parenting time during the summer. Defendant opposed plaintiff’s request for expanded summer parenting time without a comparable decrease in her parenting time during the school year.

After the hearing, the referee found that the parties agreed that changed circumstances warranted revisiting custody and parenting time and that an established custodial environment existed with both parents.

The referee evaluated the best-interest factors under MCL 722.23, and determined that factors (a), (b), (d), (e), (f), (g), (h), and (k) weighed equally or neutrally. The referee found that factor (c)—the capacity and disposition to provide the child with food, clothing, and medical treatment—favored plaintiff because she was better able to get medical treatment, while defendant delayed or made it inconvenient for plaintiff to get treatment. The referee found that factor (j) weighed against both parties because they had difficulty keeping their personal conflict separate from their co-parenting. The referee weighed factor (l) in favor of joint legal custody and directed the parties to work harder to be proper joint legal custodians.

The referee noted that defendant had become more engaged in medical treatment. The referee instructed the parties to seek judicial intervention to resolve disputes rather than resorting to unilateral action.

The referee ultimately concluded that plaintiff had not shown by clear and convincing evidence that granting her sole legal custody would be in child’s best interests. The trial court subsequently signed an order affirming the referee’s recommendations against changing legal custody or parenting time.

To modify a custody decision, the moving party must establish by a preponderance of the evidence that proper cause or changed circumstances warrant a modification of custody.

The trial court in this case found that although the parties were unable to make decisions together about the child’s medical treatment, the defendant-father demonstrated his willingness to acquiesce to the plaintiff-mother’s demands and remain open to the plaintiff’s opinions, while the plaintiff did not reciprocate. Plaintiff admitted that she resorted to unilateral decision-making because, according to plaintiff, defendant refused to participate.

The referee found that both parents exercised parenting time regularly and generally in accordance with court orders, except when the child’s interests required a deviation from the schedule. Testimony on the parenting-time schedule, the referee correctly found that plaintiff overstated the amount of time she went without seeing the child in the summer. The referee further noted that plaintiff’s proposal would significantly reduce the number of defendant’s overnights per year, which was consistent with plaintiff’s testimony that she did not agree that defendant should have additional overnights during the school year.

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.

If the divorce or separation process does not turn out like you thought it would, you may not have the custody or parenting time you deserve. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.

Contact Aldrich Legal Services

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