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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

 

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