Anne Marie Hazen v. Kevin Anthony Phillis
337106
| Mich. Ct. App. | Nov 2, 2017Background
- Unmarried parents with one child; 2011 order awarded joint legal custody, plaintiff sole physical custody, defendant parenting time; no additional support beyond defendant’s Social Security benefit.
- From 2013–2016 defendant repeatedly moved for custody, alleging plaintiff denied parenting time; court generally left physical custody with plaintiff and adjusted parenting time.
- In May 2016 defendant alleged unstable housing and school attendance issues and the Friend of the Court (FOC) investigated; FOC later recommended awarding defendant sole physical custody (plaintiff objected).
- In Sept 2016 plaintiff left the child at defendant’s home during unstable housing; parties dispute whether plaintiff attempted to reclaim the child and whether defendant refused return despite plaintiff’s court-ordered sole custody.
- Trial court (Feb 1, 2017) found an established custodial environment with plaintiff but awarded joint legal and joint physical custody (defendant primary during school year) finding by clear and convincing evidence that change was in child’s best interests.
- Court of Appeals reversed and remanded because the trial court failed to make the threshold finding that defendant proved by a preponderance of the evidence either proper cause or a change of circumstances as required by MCL 722.27 before changing an established custodial environment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court properly modified custody over an established custodial environment without first finding proper cause or change of circumstances under MCL 722.27 | Hazen: trial court erred; required threshold finding was not made | Phillis: change was justified by FOC findings and best-interest factors | Reversed: trial court failed to make required preponderance finding of proper cause or change of circumstances before changing established custodial environment |
| Standard required to modify custody when an established custodial environment exists | Hazen: statute requires clear and convincing evidence to change established custodial environment and threshold proper-cause showing first | Phillis: relied on FOC referee and best-interest analysis to justify change | Court: Threshold finding of proper cause or change of circumstances by preponderance is distinct and required before best-interest/clear-and-convincing analysis |
| Role of Friend of the Court recommendations in meeting threshold | Hazen: FOC recommendation alone insufficient without Vodvarka-standard analysis | Phillis: FOC attorney-referee stated proper cause and change existed | Court: FOC referee’s statement did not substitute for trial court’s required Vodvarka analysis and trial-court finding |
| Burden of proof allocation in custody-modification sequence | Hazen: moving party must prove proper cause/change by preponderance, then show best interests warrant change (clear & convincing if established custodial environment exists) | Phillis: argued overall best-interest showing demonstrated need for modification | Court: Affirmed sequential burdens: preponderance for proper cause/change then, if custodial environment exists, clear and convincing for changing it |
Key Cases Cited
- Corporan v. Henton, 282 Mich. App. 599 (discusses standard for clear legal error)
- Lieberman v. Orr, 319 Mich. App. 68 (explains process for custody modification and interplay of Vodvarka and MCL 722.27)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (defines "proper cause" and "change of circumstances" standards required to modify custody)