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FAMILY LAW 57: The trial court did not err by denying defendant-mother’s motion to change custody and modify her parenting time of the parties’ child.


MC was born in the summer of 2014 at which time the parties resided together. In November 2014, plaintiff-father filed a complaint for sole physical and joint legal custody of MC. The complaint and subsequent motions presented highly concerning allegations regarding defendant’s substance abuse issues. After an emergency motion in October 2015, the trial court granted plaintiff temporary sole physical custody and ordered that he be responsible for MC’s medical care. In February 2017, the trial court granted plaintiff sole legal and physical custody, and defendant received supervised parenting time. On April 19, 2019, the trial court entered a consent order dismissing defendant’s motion to change physical custody and held the issue of legal custody in abeyance. MC’s surgery was completed in May 2019 as scheduled. On September 11, 2019, defendant filed her second motion to change custody and also sought increased parenting time. On September 25, 2019, the trial court entered a consent order granting defendant joint legal custody and increasing her unsupervised parenting time to every other weekend as well as two weeks in the summer. Seven weeks later, on November 13, 2019, defendant filed her third motion to change custody, this time an emergency motion requesting that the court enforce the joint-custody order and grant her temporary legal and physical custody pending an evidentiary hearing. On November 13, 2019, the trial court entered an order denying ex parte relief and ordered that MC was to remain in school, and on November 20, 2019, the trial court held a hearing on defendant’s motion. At the hearing, defendant’s counsel objected to the Friend of Court recommendation that her motion be denied and reiterated the allegations made in her motion. The trial court denied defendant’s motion and informed the parties that they needed to start working together and set aside their disdain for one another to make decisions in the best interests of MC.


This Court reviews a trial court’s determination regarding whether a party has demonstrated proper cause or a change of circumstances under the great weight of the evidence standard. A trial court’s factual findings are against the great weight of the evidence when the evidence clearly preponderates in the opposite direction.


Defendant first argues that the trial court erred by denying her motion without addressing whether there was a proper cause or change of circumstances to modify its prior order. While the better course would be for the trial court to expressly address the threshold question, it is clear from the record that the court concluded that there were no grounds to revisit the issues of custody or parenting time. We see no error in this determination because the allegations supporting defendant’s motion did not establish proper cause or a sufficient change of circumstances. Not abiding by a joint-custody order certainly could be a sufficient reason to revisit a prior order. However, considering that defendant’s motion was brought only seven weeks after joint legal custody had been granted, it was reasonable for the trial court to instead direct the parties to attempt to reach an agreement on the medical and educational issues.  Overall, these assertions, brought less than two months after the last order, were not of such a magnitude that we can say that the trial court erred by denying defendant’s motion. We also note that it took years for defendant to reobtain joint legal custody of MC and the substantial unsupervised parenting time granted by the September 2019 consent order. Absent compelling circumstances, it was not reversible error for the trial court to deny further modification on the basis of a motion brought seven weeks later.


In sum, defendant’s motion to change custody and parenting time reiterated the parties ongoing dispute regarding MC’s medical conditions and presented related questions relating to MC’s education. These are plainly important decisions regarding the child that the parties must attempt to agree on before seeking court involvement. Because the court had only recently granted joint legal custody, it did not err by denying defendant’s motion and entering an order clarifying the parties’ responsibility to co-parent.


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