Now Accepting New Clients!

FAMILY LAW 42: Motion to modify custody denied due to lack of supporting affidavits or documentation.

The parties divorced in February 2017, and they were awarded joint legal and physical custody of their two sons.

In March 2019, plaintiff filed the instant motion to modify custody. The motion contained allegations that the children might have been sexually abused and that defendant, to the children’s detriment, was not supportive of or was interfering with their counseling needs. Plaintiff conceded that although she had brought all these allegations to the attention of counselors, a doctor, and Child Protective Services (CPS), which resulted in four separate CPS investigations, no investigations or examinations were conclusive to any sexual abuse.

Plaintiff asked the trial court to award her sole legal and physical custody of the children and to place limitations on any parenting time given to defendant. Plaintiff did not attach any affidavits or other supporting documentation to the motion or her accompanying brief.

In response to the custody motion, defendant contended that plaintiff’s allegations were untrue, that CPS had already investigated the allegations on multiple occasions without substantiation, and that plaintiff had no real offer of proof other than her own unverified account. Defendant also submitted some supporting exhibits.

At the hearing on the motion to modify custody, the trial court indicated that many of plaintiff’s allegations concerned incidents that happened nearly two years earlier and that CPS had concluded that any claims of sexual abuse were unsubstantiated. The trial court acknowledged the seriousness of the allegations, but then observed that plaintiff had not provided any statements, affidavits, or reports to substantiate the allegations.

The trial court denied the motion without prejudice.

If the allegations set forth in plaintiff’s motion to modify custody are true, they would easily establish a change of circumstances and proper cause for purposes of revisiting the issue of custody under the statutory best-interest factors. But the trial court found it problematic that plaintiff had not submitted any statements, affidavits, reports, or other documentary evidence to support the allegations, let alone evidence that was current and relevant.

Under the circumstances of the case and given the remarks made by the trial court when ruling on the motion, the court’s hesitation and resistance at giving any weight to the allegations in plaintiff’s motion was plainly driven by the four CPS investigations instigated by plaintiff that resulted in determinations that allegations of abuse by defendant could not be substantiated.

The lack of substantiation, again and again, could reasonably call into question plaintiff’s motives and credibility on all matters. The trial court appeared more than open to further considering a motion to modify custody if plaintiff would come forward with supporting documentary evidence, explaining why the court took the unusual step of denying the motion without prejudice.

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.

At the Plymouth, Michigan and Ann Arbor, Michigan 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


Basic responsibilities of an executor

Originally posted on 01/11/2017 The emotional toils of dealing with the death of a loved one can be considerably difficult. Nevertheless, perseverance is paramount; especially if you are appointed to be an executor to one’s...

What you need to compliment your will

Originally posted on 02/08/2017 Making end-of-life plans usually end with a will, but they shouldn't. Some believe that simply having a will is enough. However, this post will briefly explain how having other estate planning...

The benefits of home health care providers

Originally posted on 03/22/2017 As we get older or suffer an injury, we need a little extra help. Home health care providers or caregivers can provide the assistance needed to handle your or your loved one's health and safety...

What to know about bail conditions

Originally posted on 03/06/2017 If you have been arrested and are being held on the suspicion that you have committed a particular crime, chances are that the only thing you are thinking about is getting out of jail as soon as possible and...

College students and estate planning

Originally posted on 12/16/2016 With college semesters starting up in Michigan, it may not be so easy to get college students to think responsibly. This time can be especially tough with the need of moving back to school and getting...

Three reasons to put a power of attorney in place

Originally posted on 11/08/2016 While no one wants to think of the unfortunate possibility of being incapacitated or of a time when we can't handle our own affairs, this circumstance is a real possibility. If something happens and this...

How to approach parents about estate planning

Originally posted on 12/09/2016 Family forms a strong foundation for many people's first and most intimate community. It is important to strengthen these first relationships so even uncommon questions become natural. For those...

PROBATE 44: Petition for Mental Health Treatment

Michigan’s Mental Health Code governs the civil admission and discharge procedures for a person with a mental illness. Specifically, MCL 330.1434 sets forth the procedure and content requirements for a petition for mental health treatment.

Should you get your criminal record expunged?

Originally posted on 04/12/2017 If you have been convicted of a crime, have served your sentence, and have followed all court recommendations, you should be able to put your past behind you and move on with life. Moving forward is critical...

Choosing the right executor for an estate

Originally posted on 05/28/2017 When people are thinking about planning their estate, they often think about trying to minimize the estate tax, keeping their will updated, and keeping items out of probate court; however, there is another...

Understanding how the Miranda warning works

Originally posted on 11/25/2016 Michigan residents who have seen television police shows or movies involving law enforcement have no doubt watched many dramatic scenes with officers quoting something to the effect of, "You have the...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000