Sheila Starr Fante v. John Vincent Nova
336085
| Mich. Ct. App. | Jun 29, 2017Background
- Parties had a 2011 consent judgment: joint legal custody; plaintiff (Fante) sole physical custody of two children.
- In 2015 plaintiff was charged with misdemeanor child abuse; defendant (Nova) moved to modify custody and obtained an ex parte order placing the children with him pending hearing.
- A referee and the trial court left the children with Nova, describing the change as "placement"/temporary; children remained with Nova for over a year.
- After the criminal charges were resolved in plaintiff’s favor, the trial court set hearings in June 2016; Nova’s counsel withdrew and Nova failed to appear at scheduled hearings.
- The trial court dismissed Nova’s 2015 modification motion, returned temporary physical custody to Fante, and ordered supervised parenting time for Nova without applying the Child Custody Act analysis.
- The Court of Appeals vacated those orders and remanded for a proper custody hearing under the Child Custody Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could effectuate a custody change via a "temporary/placement" order without applying the Child Custody Act | Temporary placement pending proceedings was permissible and custody could revert to Fante | The extended placement had the practical effect of changing custody and triggered the Child Custody Act protections | The trial court cannot evade the Child Custody Act by labeling a long-term removal "temporary"; it must apply the Act when custody is effectively changed |
| Whether dismissal of Nova’s modification motion for failure to appear was proper | Fante argued dismissal and reversion of custody were appropriate given Nova’s nonappearance | Nova argued dismissal was a drastic sanction and the record lacks required consideration of alternatives | Dismissal of the motion and resultant custody-altering orders were premature/abusive because the court failed to evaluate alternatives or apply dismissal standards sufficiently on the record |
| Whether the trial court needed to determine existence of an established custodial environment before reverting custody | Implicitly argued that reverting custody was proper after plaintiff was found not guilty | Nova argued the children had been in his care long enough to form an established custodial environment, requiring specific findings and heightened proof to change | Court held that when children have been in a new environment for significant time, the court must determine if an established custodial environment exists and follow statutory standards before changing it |
| Whether supervised parenting time could be imposed without applying the Child Custody Act | Fante sought supervised parenting time and reversion to her custody | Nova contended supervision and custody changes are governed by the Child Custody Act and require proper findings | Court held imposition of supervised parenting time affecting custody required compliance with the Child Custody Act; the order was legally erroneous and an abuse of discretion |
Key Cases Cited
- Zerillo v. Dyksterhouse, 191 Mich. App. 228 (application of dismissal rule for failure to appear)
- Brenner v. Kolk, 226 Mich. App. 149 (dismissal is drastic and should be cautious)
- Bloemendaal v. Town & Country Sports Center, Inc., 255 Mich. App. 207 (trial court must evaluate alternatives on the record before dismissal)
- Vicencio v. Ramirez, 211 Mich. App. 501 (failure to evaluate other options on the record is abuse of discretion)
- Shade v. Wright, 291 Mich. App. 17 (removal that changes custodial environment implicates Child Custody Act)
- Rivette v. Rose-Molina, 278 Mich. App. 327 (modification of custody is governed by MCL 722.27 and best-interest analysis)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (Child Custody Act governs custody modifications)
- Demski v. Petlick, 309 Mich. App. 404 (Child Custody Act governs parenting time changes too)
- Mann v. Mann, 190 Mich. App. 526 (court cannot effect by temporary interim order what it cannot do by a final order)
- Pierron v. Pierron, 282 Mich. App. 222 (established custodial environment requires specific findings; clear and convincing standard applies if it exists)
- Hayes v. Hayes, 209 Mich. App. 385 (existence of custodial environment is independent of how it arose)
- Rittershaus v. Rittershaus, 273 Mich. App. 462 (vacatur and remand required when custody decisions bypass statutory requirements)
- Fletcher v. Fletcher, 447 Mich. 871 (trial courts should consider up-to-date custody information on remand)