Kristen Selby v. Robert Lister
334612
| Mich. Ct. App. | Apr 4, 2017Background
- In 2010 the trial court awarded joint legal custody and gave Kristen Selby primary physical custody; the child lived with Selby and defendant Robert Lister had liberal parenting time.
- Lister moved to change custody citing the child’s kindergarten absences/tardies, Selby’s multiple residence and job changes, and a CPS investigation arising from alleged inappropriate touching.
- At the hearing Lister presented school attendance records and testified about Selby’s moves, the CPS investigation, and that the child sometimes smelled of marijuana at exchanges; he also admitted he withheld the child from Selby for ~40 days.
- Selby acknowledged some attendance problems when working long hours but said she changed hours and that the child attended a private charter school unaffected by her moves; she denied using marijuana around the child and disputed the seriousness of the CPS matter.
- The trial court found Selby more credible, expressed concern about attendance but concluded its effect was unclear, found the residence and CPS allegations not substantial, and criticized Lister for withholding the child; it denied the custody-change motion.
Issues
| Issue | Plaintiff's Argument (Selby) | Defendant's Argument (Lister) | Held |
|---|---|---|---|
| Whether proper cause or a change in circumstances existed to revisit custody | Current order should remain; attendance impact unclear, moves and CPS not shown to harm child | School absences, Selby’s moves, and CPS investigation justify reopening custody | Denied: defendant failed to prove proper cause or material change of circumstances |
| Whether kindergarten absences/tardies constituted a material change | Attendance effect unclear; insufficient to demonstrate significant effect | Absences/tardies show harm and justify custody change | Court concerned but found record insufficient to show significant effect; not a basis to modify |
| Whether Selby’s residential/job changes materially affected the child | Moves explained and child remained at same private charter school; no evidence of harm | Frequent residence/job changes show instability affecting child | Court found no evidence these changes significantly affected the child |
| Whether CPS investigation warranted custody review | Investigation did not involve removal and was disputed; not shown to harm child | CPS investigation indicates risk and supports custody change | Court found CPS allegations unsubstantial and not a change in circumstances |
Key Cases Cited
- Rittershaus v. Rittershaus, 273 Mich. App. 462 (preponderance standard for factual review)
- Berger v. Berger, 277 Mich. App. 700 (abuse-of-discretion standard in custody decisions)
- Shulick v. Richards, 273 Mich. App. 320 (definition of clear legal error)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (proper cause/change in circumstances prerequisite to best-interest review)
- Mitchell v. Mitchell, 296 Mich. App. 513 (proper-cause must involve best-interest factors and significant effect)
- Shann v. Shann, 293 Mich. App. 302 (credibility determinations entitled to deference)