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FAMILY LAW 56: The court held that the trial court erred by failing to consider up-to-date information before ordering the change of the child’s ECE.


The parties were involved in a romantic relationship when the minor child who is the subject of these proceedings was born on February 9, 2006. The parties did not live together and were never married. Approximately one year after the birth of the minor child, the parties ended their relationship and defendant and plaintiff both married other people. A prior court order established that plaintiff had sole legal and physical custody of the child and granted defendant “reasonable parenting time.” This case arose from defendant’s motion to change custody as a result of a Children’s Protective Services (CPS) investigation regarding plaintiff’s care and custody of the child. Following a preliminary hearing, the Family Division of the Allegan Circuit Court removed the child from plaintiff and placed the child in defendant’s care and custody. On December 15, 2017, defendant filed a motion to change custody and requested legal and physical custody of the minor child. The trial court granted defendant’s ex parte order pending the hearing on defendant’s motion to change custody. Following a series of hearings on the matter, the trial court granted the parties joint legal and physical custody of the child.  After remand, the trial court made factual findings and issued a new opinion and order changing its previous order of joint legal and physical custody to sole legal and physical custody in favor of defendant. The trial court based its decision on the evidence that existed in the record at the time of its previous ruling and did not seek further evidence from the parties. This appeal followed.


When reviewing a custody order, we review questions of law for clear legal error. We review a trial court’s factual findings in child custody cases to determine whether they were against the great weight of the evidence. A trial court’s factual findings are against the great weight of the evidence if the evidence clearly preponderates in the opposite direction.


Plaintiff argues that the trial court erred by failing to consider up-to-date information before ordering the change of the child’s established custodial environment. We agree. In Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994), our Supreme Court directed that, “on remand, the court should consider up-to-date information, including the child[‘s] current and reasonable preferences, as well as the fact that the child[ has] been living with [a party] during [an] appeal and any other changes in circumstances arising since the trial court’s original custody order.” Trial courts “may elicit testimony, interview children, and invoke other judicial resources to assure a thorough and careful evaluation of the child’s best interests.” In Ireland v Smith, 451 Mich 457, 468; 547 NW2d 686 (1996), our Supreme Court clarified its holding in Fletcher and instructed that the trial court “is to review the entire question of custody on remand” and “consider all the statutory factors and conduct whatever hearings or other proceedings are necessary to allow it to make an accurate decision concerning a custody arrangement that is in the best interests of [the child].” In this case, the record reflects that the trial court made its decision without soliciting up-to-date information from the parties or holding an evidentiary hearing to ascertain whether additional information existed that the trial court should have considered before making its child custody decision. The trial court erred by not seeking up-to-date information on remand and considering such information before making its child custody decision. The trial court failed to make a finding regarding the existence of a custodial environment or the best-interest factors based upon up-to-date information presented to the trial court, and the record lacks sufficient evidence properly admitted for this Court to make its own determination of this issue by de novo review. Therefore, we remand this matter once again so that the trial court may obtain and consider up-to-date information or changes that have occurred since the original custody order.


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