346 Mich. App. 633
Mich. Ct. App.2023Background
- Parties divorced in 2017; consent judgment awarded defendant sole legal and physical custody of two children and restricted plaintiff to supervised parenting time based on findings of plaintiff’s manipulative/alienating behavior and mental-health issues (Dr. Ludolph diagnosed borderline personality traits).
- Plaintiff repeatedly alleged abuse and other misconduct by defendant; many allegations were investigated and unsubstantiated; prior trial court (Judge Brown) denied plaintiff’s 2020 motion to increase parenting time.
- After reassignment, Judge Van den Bergh (2021) relaxed supervision and increased plaintiff’s parenting time via interim orders (citing LARA complaints about Dr. Ludolph) without full evidentiary hearings; parties later entered stipulations increasing plaintiff’s visits while awaiting a full hearing.
- Multi-day evidentiary hearings (2021–2022) occurred; trial court admitted GAL reports (under MRE 803(24)), LARA disciplinary documents (under MRE 803(8)), and certain expert testimony about pre-2017 domestic-violence allegations; the court met with child BK in camera.
- Trial court found proper cause/change in circumstances, concluded an established custodial environment existed with both parents, applied a preponderance standard, converted sole legal custody to joint legal custody, increased parenting time (five overnights/14 days during school year; 50/50 summers), and continued the GAL.
- Court of Appeals vacated the custody order and remanded: major bases were multiple evidentiary errors, misapplication of the burden-of-proof standard (clear-and-convincing required), and that joint legal custody was not supported by the record; remand retained original judge and upheld continued GAL appointment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of GAL reports (hearsay / MRE 803(24)) | GAL reports are reliable and should be admitted; MCR 5.121 (probate rule) supports reliance on GAL reports. | GAL reports are hearsay; catch-all exception is inapplicable and probate rule doesn’t govern domestic-relations proceedings. | Trial court erred admitting GAL reports under MRE 803(24); reports subject to evidentiary rules and admission was clear legal error. |
| Admissibility of LARA disciplinary documents (MRE 803(8)) | LARA documents are public records admissible under public-records exception and relevant to Dr. Ludolph’s credibility. | LARA materials are investigatory/evaluative and not admissible under Michigan MRE 803(8); they contain hearsay-within-hearsay. | Trial court abused discretion; MRE 803(8) does not admit such evaluative investigative findings and hearsay-within-hearsay problems exist. |
| Expert testimony about alleged pre-2017 domestic violence | Testimony and therapist opinion that plaintiff suffered domestic violence is relevant to custody assessment. | Pre-divorce matters were resolved by the consent judgment and are not new evidence; therapist’s opinion on complainant truthfulness is inadmissible. | Trial court erred by reopening settled pre-divorce issues and admitting inadmissible opinion testimony; evidence was not relevant as new proper cause. |
| Proper-cause/change-of-circumstances and custodial environment | LARA complaint and plaintiff’s year+ unsupervised/overnights without incident show change in circumstances and an established custodial environment with both parents. | Prior findings, law of the case, and consent judgment should limit relitigation; defendant’s sole-custody interest remains. | Court found plaintiff showed proper cause/change in circumstances and that custodial environments existed with both parents; that finding re: change was not against great weight of evidence. |
| Burden of proof for modifying established custodial environment | Preponderance standard applied by trial court was sufficient. | Clear-and-convincing evidence required when altering an established custodial environment with both parents. | Trial court legally erred by applying preponderance; clear-and-convincing standard applies and must be used on remand. |
| Joint legal custody (ability to cooperate/communicate) | Parties are communicating better, using OFW, and have tools (therapy) to cooperate; joint custody serves best interests. | Long history of hostility, inability to agree on basic issues, and repeated litigation show parents cannot jointly decide. | Evidence preponderates against joint legal custody; trial court abused discretion changing sole legal custody to joint. |
| Motion to reassign judge | Plaintiff argues reassignment unnecessary; judge can proceed. | Defendant contends judge prejudged case and is biased based on interim orders and rulings. | Reassignment denied: errors alone do not warrant new judge; appearance-of-justice factors do not require reassignment here. |
| Continued GAL appointment | Plaintiff supports GAL continuation to facilitate communication. | Defendant alleged GAL unqualified or biased and sought termination. | Court did not abuse discretion continuing GAL; no showing GAL was disqualifyingly biased or unqualified. |
Key Cases Cited
- Brown v. Brown, 332 Mich App 1 (2020) (standard of review and deference to trial court factual and credibility findings in custody disputes)
- Katt v. People, 468 Mich 272 (2003) (strict limits on MRE 803(24) catch-all exception; requirements are stringent)
- Bradbury v. Ford Motor Co., 419 Mich 550 (1984) (narrow construction of public-records exception; excludes evaluative/investigative reports)
- Solomon v. Shuell, 435 Mich 104 (1990) (hearsay-within-hearsay inadmissible absent separate exceptions; distrust where preparer has motive to misrepresent)
- Nahshal v. Fremont Ins. Co., 324 Mich App 696 (2018) (abuse-of-discretion review for admissibility; preservation of objections)
- Bowler v. Bowler, 351 Mich 398 (1958) (Friend of the Court reports may be considered but are not admissible over objection)
- Lieberman v. Orr, 319 Mich App 68 (2017) (proper-cause/change-of-circumstances gatekeeping under MCL 722.27(1)(c))
- Vodvarka v. Grasmeyer, 259 Mich App 499 (2003) (standard for showing change of circumstances for custody modification)
- Foskett v. Foskett, 247 Mich App 1 (2001) (clear-and-convincing standard applies when altering an established custodial environment with both parents)
- Bofysil v. Bofysil, 332 Mich App 232 (2019) (joint custody requires parents able to cooperate on major child-rearing decisions)