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FAMILY LAW 63: The court remanded the mother’s motion for modification of custody for an evidentiary hearing, concluding that her offer of proof and other information in the record warranted one.

Plaintiff and defendant were divorced in July 2017. The judgment of divorce stated that the parties would have joint-legal and joint-physical custody, and provided for a parenting-time schedule.  Defendant filed many motions to change custody, all of which were denied.  In March 2020, defendant filed another motion for change in custody and parenting time. Defendant requested that the trial court award her sole-legal and sole-physical custody primarily based on a parenting-time exchange that occurred in February 2020. Defendant also asserted that one of the children had disclosed multiple incidents of physical abuse by plaintiff directed towards the children. At the hearing on defendant’s motion, defendant’s counsel made an offer of proof regarding what various witnesses would testify, if an evidentiary hearing were held. The trial court declined to hold an evidentiary hearing, held that defendant had failed to meet her burden of showing proper cause or change in circumstances, and denied her motion for change of custody. This appeal followed.

ANALYSIS

Regarding a child-custody dispute, “all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28. Therefore, there are three different standards of review that apply to child-custody appeals. On appeal, defendant argues that the trial court should have held an evidentiary hearing before concluding that she failed to meet the threshold issue of proper cause or change in circumstances. Although this issue “might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.” Trial courts are often able to make this factual determination without an evidentiary hearing because “the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.” MCR 3.210(C)(8) provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion. Despite stating that defendant’s counsel did “an excellent job” of establishing her offer of proof, the trial court found that because there were reports of “good things” and because the parties needed to get along to maintain their relationship with the children, defendant had failed to meet her burden of proving by a preponderance of the evidence that proper cause or a change of circumstances existed to warrant revisiting the custody order. In doing so, the trial court failed to consider whether an evidentiary hearing was required to resolve contested factual issues in the case. See MCR 3.210(C)(8). Based on the record before us, we conclude that there was a contested factual issue, i.e., whether plaintiff committed physical abuse of any of the children, that needed to be resolved for the trial court to make an informed decision on defendant’s motion to modify custody. Furthermore, there was a contested factual issue regarding whether defendant was coaching the children to make false accusations against plaintiff. Defendant’s offer of proof and the other information contained in this record were sufficient to warrant an evidentiary hearing to determine whether defendant had met her burden of establishing proper cause or change in circumstances.

CONCLUSION

We conclude that defendant’s offer of proof was sufficient to warrant a hearing to determine whether defendant could establish that there was proper cause or change in circumstances. For a change in circumstance, “evidence of the circumstances existing at the time of and before entry of the prior custody order will be relevant for comparison purposes” only, and “the movant cannot rely on facts that existed before entry of the custody order to establish a ‘change’ of circumstances.” For proper cause, the same restrictions do not necessarily apply, “though in most cases it will hold true.” During consideration of the motion at issue in this appeal, the trial court and the parties proceeded on the premise that the stipulated order entered in January 2019 was the last custody order entered. As stated earlier, the stipulated order did not address any issues regarding custody. Therefore, the judgment of divorce was the last custody order entered. On remand, after the trial court conducts the threshold hearing, if it determines that defendant has established proper cause or a change of circumstances, then the trial court should consider whether an established custodial environment existed before conducting a review of the best-interest factors.

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