Elham Ma Amawi v. Steven Alan Deming ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ELHAM MA AMAWI, also known as JULIANNE UNPUBLISHED
WINSTON, July 20, 2023
Plaintiff-Appellant,
v No. 362538
Berrien Circuit Court
STEVEN ALAN DEMING, LC No. 2014-003582-DP
Defendant-Appellee.
Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
In this child custody dispute, plaintiff, Elham Ma Amawi, appeals by right the trial court’s
order granting defendant, Steven Alan Deming, sole legal and physical custody of their two minor
children. Plaintiff has filed a brief on her own behalf on appeal. In her brief, she complains
generally about the Friend of the Court (FOC), the trial court’s referees, and the trial judge. She
also claims that the trial court erred in numerous ways that she believes warrant relief. We affirm.
I. BASIC FACTS
Defendant and plaintiff had a brief relationship during which they had two sons: CD and
JA. The trial court initially awarded plaintiff sole legal and physical custody of the children.
Defendant admitted that he had a problem with alcohol and that he was arrested for drunk
driving. He went to prison and was released in 2018. Defendant apparently addressed his alcohol
abuse problem in prison and he tried to be a part of his sons’ lives after his release. Plaintiff,
however, did not agree that defendant should be a part of the children’s lives, so she did not
cooperate with the parenting-time orders. She eventually moved the children to another county
and continued to deprive defendant of parenting time.
The trial court eventually found plaintiff to be in contempt for violating the parenting-time
orders. Plaintiff also repeatedly tried to get defendant’s parenting time suspended. Evidence in
the record indicates that, even when defendant exercised parenting time, plaintiff used Children’s
Protective Services (CPS) and police officers to interfere with his parenting time. In May 2022,
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after years of conflict over parenting time, defendant moved to change the children’s custody to
joint legal and physical custody because plaintiff alienated the children from him. A referee held
a hearing on the proposed change in July 2022. The referee found that it served the children’s best
interests to award defendant sole legal and physical custody of the boys.
II. PRELIMINARY MATTERS: RECORD, WAIVER, AND JURISDICTION
Both parties have appeared in this Court in propria persona, and both have included
documents with their submissions on appeal that they believe this Court should review. This
Court’s review, however, is limited to the original record. See MCR 7.210(A); Dora v Lesinski,
351 Mich 579, 581; 88 NW2d 592 (1958). For that reason, we have only considered those
documents that were part of the lower court record.
We further note that plaintiff submitted only one transcript to this Court, even after this
Court’s clerk informed her that she needed to submit all the relevant transcripts. See
MCR 7.210(B)(1). We decline to consider any issue on appeal that cannot properly be decided as
a result of plaintiff’s failure to provide the relevant transcripts. See Myers v Jarnac, 189 Mich
App 436, 443-444; 474 NW2d 302 (1991).
We have carefully reviewed the parties’ briefs on appeal and, giving them the benefit of
the doubt as parties appearing in propria persona, we have attempted to address every issue that
they arguably have raised in this Court. To the extent that we have not addressed a particular claim
of error, it is because the claim lacked factual or legal analysis sufficient to permit us to address it;
therefore, we treat those claims as having been abandoned on appeal. See Mitcham v Detroit, 355
Mich 182, 203; 94 NW2d 388 (1959).
Defendant also challenges this Court’s jurisdiction. He asserts, in effect, that plaintiff filed
her claim of appeal too soon because the trial court’s order had not yet become final and plaintiff
objected to the order in the trial court. The fact that the order changing custody had not yet taken
effect is not dispositive. In re Application of Ind Mich Power Co to Increase Rates, 329 Mich App
397, 411; 942 NW2d 639 (2019). The trial court’s order changing custody was a final order under
MCR 7.202(6)(a)(iii). Plaintiff had to file her appeal within 21 days of its entry pursuant to MCL
7.204(A)(1)(a). Plaintiff filed her claim of appeal within 21 days of entry of the order at issue, and
her challenge to entry of the order in the trial court did not deprive this Court of jurisdiction. See
Nordstrom v Auto-Owners Ins Co, 486 Mich 962; 782 NW2d 779 (2010). Nevertheless, we agree
that some of plaintiff’s claims may be beyond the scope of her appeal. See MCR 7.203(A)
(limiting jurisdiction to review of that portion of the order with respect to which there is an appeal
of right). To the extent that this Court does not have jurisdiction to hear plaintiff’s appeal as an
appeal of right, in the interests of finality, we treat plaintiff’s appeal of such issues as on leave
granted. Wardell v Hincka, 297 Mich App 127, 133 n 1; 822 NW2d 278 (2012).
III. CHANGE IN CUSTODY
A. STANDARD OF REVIEW
In child custody disputes, this Court reviews the trial court’s factual findings by examining
whether the findings are against the great weight of the evidence. See Fletcher v Fletcher, 447
Mich 871, 877-878; 526 NW2d 889 (1994). A finding is against the great weight of the evidence
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when it is so contrary to the weight of the evidence that it is unwarranted or is so plainly a
miscarriage of justice that it would warrant a new trial. Id. at 878. This Court reviews a trial
court’s discretionary rulings in a custody dispute for a palpable abuse of discretion. MCL 722.28.
“An abuse of discretion exists when the trial court’s decision is so palpably and grossly violative
of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of
passion or bias.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Finally, this
Court reviews the trial court’s selection, application, and interpretation of the law governing
custody disputes for “clear legal error.” MCL 722.28. The clear-legal-error standard is the same
as the ordinary-legal-error standard. Fletcher, 447 Mich at 881. Accordingly, this Court reviews
de novo the trial court’s application of the law to the facts. See Kaeb v Kaeb, 309 Mich App 556,
564; 873 NW2d 319 (2015). This Court similarly reviews de novo whether a party received due
process. See Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).
B. NOTICE
On appeal, plaintiff briefly asserts that she had no notice of defendant’s motion to change
custody and no notice of the hearing. The record does not support her claim.
Plaintiff had a due-process right to service of notice “by the best means available, by
methods reasonably calculated to give [her] actual notice of the proceeding and an opportunity to
be heard and to present objections or defenses.” Hill v Frawley, 155 Mich App 611, 613; 400
NW2d 328 (1986). Defendant formally moved for a change in custody on May 4, 2022. Because
plaintiff’s address was confidential, see MCR 3.203(F), an FOC staffer mailed the notice on
May 9, 2022, to plaintiff’s last known address, which was adequate under the court rules. See
MCR 3.203(A); MCR 3.203(F) (stating that the party with the confidential address has the
obligation to provide an alternate address for service).
Moreover, the referee inquired about the notice provided to plaintiff, and the FOC
Supervisor, Kelly Milnickel, testified at the hearing that the FOC had received an e-mail from
plaintiff in which she stated that she had actual notice of the hearing a week before the hearing
date. Plaintiff asserted in that e-mail that she had no transportation and wanted the hearing
adjourned. Milnickel stated that plaintiff had a habit of requesting adjournments premised on
transportation; she had done so three times previously. Milnickel agreed that plaintiff had
10 weeks to arrange transportation for the hearing held in July 2022. Under the circumstances,
plaintiff has not demonstrated that the procedures for giving notice of the hearing did not comply
with minimum due process. See Reed, 265 Mich App at 157; Hill, 155 Mich App at 613.
C. CHANGED CIRCUMSTANCES
We next address plaintiff’s claim that defendant failed to establish proper cause or a change
of circumstances that warranted a hearing on custody.
Michigan courts generally avoid unwarranted and disruptive changes to a child’s custodial
environment. See Elliott-Mault v Elliott, 329 Mich 544, 552-553; 46 NW2d 373 (1951). For that
reason, a party requesting a change in the child’s custodial environment must demonstrate a
“change of circumstances” since the last applicable order before revisiting the child’s custodial
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environment. See Sweet v Sweet, 329 Mich 251, 255-256; 45 NW2d 58 (1950). The Legislature
codified that requirement under MCL 722.27.
The Legislature provided that a trial court “shall not modify or amend its previous
judgments or orders or issue a new order so as to change the established custodial environment of
a child unless there is presented clear and convincing evidence that it is in the best interest of the
child.” MCL 722.27(1)(c). The Legislature established the higher burden of proof for changes
that alter an established custodial environment to “minimize the prospect of unwarranted and
disruptive change of custody orders and to erect a barrier against removal of a child from an
‘established custodial environment,’ except in the most compelling cases.” Baker v Baker, 411
Mich 567, 576-577; 309 NW2d 532 (1981). Accordingly, the party requesting the change must
establish proper cause or a change in circumstances before the trial court may even hold a hearing
to consider the request. See MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499; 675
NW2d 847 (2003).
In Vodvarka, this Court identified the nature of the change that would warrant revisiting
custody. It stated that “not just any change” will suffice to justify revisiting custody—the
“evidence must demonstrate something more than the normal life changes” to rise to the level of
a change of circumstances that would warrant revisiting custody. Vodvarka, 259 Mich App at 513-
514. The change must be concerning the conditions of custody and must be changes that have
had, or could have, a significant effect on the child’s well-being. Id. at 513. Courts generally look
to the best-interest factors stated under MCL 722.23 when considering whether the allegations
implicate proper cause or a change in circumstances. Id. at 511-512. This Court in Vodvarka
further clarified that the threshold determination typically involved a question of fact, but it stated
its belief that trial courts will often be able to decide the question of proper cause or a change of
circumstances without a hearing because the facts alleged would often be undisputed or could be
accepted as true for purposes of deciding whether to hold a custody hearing. Id. at 512, 517. When
there is a question of fact, the moving party has the burden to prove by a preponderance of the
evidence that there is either proper cause or a change of circumstance that warrants revising
custody. Id. at 509; see also Corporan v Henton, 282 Mich App 599, 603-604; 766 NW2d 903(2009).
In May 2022, defendant moved to change custody; specifically, he asked the trial court to
change the children’s custody from sole legal and physical custody with plaintiff to joint legal and
physical custody for both parents. Defendant asserted that plaintiff refused to follow the trial
court’s orders regarding parenting time over the past three years which warranted a change. He
also alleged that plaintiff deliberately alienated the children, refused to disclose the location of the
children, neglected the children’s education, and had verbally and mentally abused him in front of
the children during parenting exchanges. The trial court agreed that such sufficed to warrant an
evidentiary hearing and scheduled it for July 22, 2022.
Under the best-interest factors, a trial court must consider “the willingness and ability of
each of the parties to facilitate and encourage a close and continuing parent-child relationship
between the child and the other parent or the child and the parents.” MCL 722.23(j). The record
amply demonstrated that plaintiff had repeatedly denied defendant parenting time over a period of
years. Indeed, she had been held in contempt for denying defendant his parenting time and still
refused to comply with the trial court’s orders. The continued disruptions to defendant’s parenting
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time strongly implicated MCL 722.23(j). Moreover, because the record itself supported those
allegations, the trial court could reasonably conclude that defendant demonstrated proper cause or
a change in circumstances that warranted a custody hearing without first holding a hearing on his
allegations. See Vodvarka, 259 Mich App 512, 517. The trial court did not err when it determined
that defendant established proper cause or a change of circumstances that warranted revisiting the
children’s custody.
D. BEST-INTEREST FACTORS
Plaintiff also argues that the referee did not adequately address the best-interest factors
when deciding whether to grant defendant’s motion to change custody. We disagree.
When considering whether and to what extent to change custody, the trial court had to
consider the best-interest factors under MCL 722.23. See MCL 722.26a(1)(a). The Legislature
determined that, for purposes of the child custody act, the best interests of the child means the
“sum total” of the enumerated factors, which were to be “considered, evaluated, and determined
by the court.” MCL 722.23. The trial court had to state its findings and conclusions for each of
the factors when rendering its custody determination. See MacIntyre v MacIntyre (On Remand),
267 Mich App 449, 451-452; 705 NW2d 144 (2005). Although the trial court was not required to
discuss every “piece of evidence entered” and every “argument raised” by the parties, the record
must “be sufficient for this Court to determine whether the evidence clearly preponderates against
the trial court’s findings.” Id. at 452. The trial court was not required to give equal weight to each
factor; it could consider the relative weight of the factors as appropriate to the circumstances. See
Sinicropi v Mazurek, 273 Mich App 149, 184; 729 NW2d 256 (2006).
The referee who held the hearing found that the children had an established custodial
environment with plaintiff—even though he opined that that was in significant part because
plaintiff had denied defendant the “opportunity to have any kind of an established custodial
environment with these children in derogation of their best interests.” For that reason, the referee
correctly recognized, defendant had to prove by clear and convincing evidence that the proposed
change in custody served the children’s best interests using the factors stated under MCL 722.23.
See MCL 722.27(1)(c).
Turning to the factors, the referee first found that the evidence that plaintiff had been
depriving the children of parenting time with defendant implicated several factors. He opined that
her behavior was not indicative of love and affection under Factor (a). See MCL 722.23(a).
Instead, the referee found the behavior to be a “twisted, outlandish, irrational perception of the
children’s needs.” He similarly felt that the behavior implicated plaintiff’s capacity to give the
children love, affection, and guidance under Factor (b). See MCL 722.23(b). The referee wrote
that the behavior showed that plaintiff was “hobbling” the children from having a “normal and
constructive adulthood.” The referee also found that plaintiff’s conduct amounted to a
destabilizing force for purposes of Factor (d), see MCL 722.23(d), and found that she had done
everything possible to prevent defendant from having a relationship with his children, which
directly contravened Factor (j), see MCL 722.23(j). The referee found that these factors favored
defendant.
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On appeal, plaintiff asserts that no evidence proved that she had been alienating the
children from defendant except for the two instances of contempt. She further claims that she had
the right to protect the children from domestic violence under MCL 722.23(j).
Significant evidence in the record establishes that plaintiff had been deliberately preventing
defendant from exercising his parenting time with the children. Defendant testified at the hearing
that he last saw his children in February 2022, about five months before the hearing. He also
testified that plaintiff had been found in contempt on at least two occasions for depriving him of
parenting time. He noted that the trial court had earlier awarded him 10 weeks of make-up
parenting time, which he received, but he had not received any other make-up parenting time. He
noted that the problems with parenting time began in 2019 when plaintiff prevented him from
having parenting time in a therapeutic setting.
Defendant also testified that, even when he had parenting time, the children resisted his
efforts to parent. He stated that the children were disinterested in activities and referred to him by
his first name. He stated that they did so because plaintiff wanted them to do so. Plaintiff also
gave the children phones, which she used to disrupt parenting time. When he took the phones
from the children, plaintiff called CPS and the police department to investigate him during his
parenting time. Defendant also testified that one son had even tried to force himself to throw up
during parenting exchanges so that he could claim to be sick and avoid parenting time. Milnickel
confirmed that plaintiff had an extensive history of denying defendant parenting time.
The evidence strongly supported the finding that plaintiff had not, and would not, facilitate
and encourage a close relationship between the children and defendant. See MCL 722.23(j).
Indeed, the evidence showed that plaintiff actively sabotaged defendant’s efforts to have a
relationship with the children, which was an important factor to consider when determining what
custody arrangement would be in the children’s best interests. See Martin v Martin, 331 Mich
App 224, 237-243; 952 NW2d 530 (2020). Moreover, no evidence established that plaintiff acted
to protect the children from domestic violence; indeed, no evidence established that defendant had
engaged in domestic violence. See id. at 238-239. Rather, the evidence showed that plaintiff
placed her own desire to prevent defendant from having parenting time ahead of the children’s
needs, which implicated the other factors identified by the referee. On this record, it cannot be
said that the referee’s findings on these factors were contrary to the great weight of the evidence.
See Fletcher, 447 Mich at 877-878.
Plaintiff alleges that defendant sent police officers to her home and caused them to violate
her constitutional rights. She suggests that this evidence should have been considered against
defendant.1 Defendant testified that, after plaintiff completely cut him off from his children, he
began to worry about their welfare. For that reason, he called police officers to perform welfare
checks. The referee heard this testimony and apparently did not consider it worthy of note in his
1
This may be a reference to an incident when defendant obtained the help of police officers to
collect the children after plaintiff’s arrest. However, there was no testimony or other evidence in
the record about this alleged incident for this Court to consider.
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findings. The referee’s decision not to give this testimony any adverse weight was not contrary to
the great weight of the evidence. See id.Under Factor (c), the referee found that defendant had the ability to provide the children
with the necessities of life. See MCL 722.23(c). Although there was no evidence concerning
plaintiff’s capacity to provide the children with the necessities of life, the referee found that neither
party was favored under this factor. The referee also found the parties equal for purposes of moral
fitness under MCL 722.23(f).
Plaintiff asserts on appeal that defendant lied about his criminal record and his failures as
a father. She also claims that defendant again had been arrested, which under the terms of the
parenting-time order, should—in her view—have resulted in the immediate suspension of his
parenting time. She suggests that the referee should have considered those facts as well.
The referee heard defendant’s testimony about his past encounters with the law. Defendant
testified that he had stopped drinking and completed the conditions of his parole. He testified as
well that he completed substance-abuse counseling. He stated that he was done drinking and had
no other present issues. There was also no evidence at the hearing that established that defendant
had again been charged with a criminal offense or had been drinking. Defendant further
acknowledged that he had not been a good father to his daughter from a previous relationship.
The referee had a sufficient basis for assessing defendant’s credibility and whether his past
conduct was relevant to the best-interest factors for the motion at issue. The referee determined
that defendant’s history should not be held against him, and this Court must defer to the referee’s
findings. See Berger, 277 Mich App at 705.
Plaintiff also asserts that defendant lied about his child support obligations. She fails to
cite where in the record he misrepresented his obligations, and she has not cited any record
evidence to support her allegation. She similarly asserts that defendant lied about his living
situation. More specifically, she claims that defendant actually lived with a girlfriend. Again, she
cites no evidence to support her allegation. Accordingly, there is no basis for this Court to second-
guess the referee’s assessment of the weight and credibility to afford defendant’s testimony. See
id.Plaintiff also writes in her appeal brief that she would be better able to provide for the
children. For example,2 she writes that she lives in a spacious brand-new home with four
2
Over several pages at the end of her brief on appeal, plaintiff alleges that she would be the better
parent in numerous other respects. She asserts—by way of example—that defendant is a drug
dealer, a compulsive liar, a manipulator, a gambling addict, emotionally unavailable, and mentally
unstable, and she states that he lives off women and uses them for sex and money. She also claims
that defendant’s new girlfriend mentally and physically abused the children. There are additional
unsupported allegations, which are too numerous to cite and summarize. Plaintiff has not
identified any record evidence to support these claims, and none of these claims are properly before
this Court. See Kent Co Aero Bd v Dep’t of State Police, 239 Mich App 563, 580; 609 NW2d 593(2000).
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bedrooms. She states that there is a five-foot flat-screen television in each child’s room and that
each child has his own Play Station, fridge, desk, laptop, iPad, and Alexa. Plaintiff’s assertions
on appeal are not evidence and cannot be considered on appeal. See Kent Co Aero Bd v Dep’t of
State Police, 239 Mich App 563, 580; 609 NW2d 593 (2000) (“A party is not permitted to enlarge
the record on appeal by asserting numerous facts that were not presented at the trial court.”).
Plaintiff failed to appear at the evidentiary hearing, and there was no evidence presented at the
hearing concerning the children’s living arrangement while in her care. Because there was no
evidence about plaintiff’s living conditions, the referee’s findings were not contrary to the great
weight of the evidence. See Berger, 277 Mich App at 705.
The referee found that plaintiff changed her residence four times since 2020, which, it
stated, was not stable. Whereas defendant had maintained the same home for the past two years.
The referee found on that basis that Factor (e), see MCL 722.23(e), favored defendant.
As for Factor (h), which addresses the home, school, and community record of the children,
see MCL 722.23(h), the referee recognized that there was little information because plaintiff had
kept defendant in the dark about the children. The referee still found that this factor favored
defendant based on the evidence that the children were living a transient lifestyle and had missed
a lot of school under plaintiff’s care.
Defendant admitted that he had had a problem with alcohol and that it led to arrests for
drunk driving.3 He stated, however, that he addressed that problem in prison. After his release,
defendant remained sober and he began working as a contractor performing home renovations.
Defendant testified that he had a modest income, rented the same home for about two years, and
could provide the children with the basic necessities.
No record evidence contradicts defendant’s testimony that he no longer drank, had
consistent employment, and had a stable home. There was, as the referee noted, no evidence about
plaintiff’s ability to provide the necessities, but the referee still found the parties to be equal for
purposes of morality and the ability to provide the necessities of life. There was also evidence that
plaintiff had repeatedly moved the children over the past few years and that the children had an
unacceptable number of absences from school. The evidence, therefore, supported the referee’s
finding that plaintiff led a transient lifestyle and was not providing the children with a stable home.
Accordingly, the referee’s findings as to these factors was not contrary to the great weight of the
evidence. See Fletcher, 447 Mich at 877-878.
The referee found that there were concerns about plaintiff’s mental health, even though she
had not been diagnosed with a mental-health disorder. The referee found that defendant was
mentally and physically healthy. From these findings, the referee determined that Factor (g), see
MCL 722.23(g), favored defendant.
3
Contrary to plaintiff’s contention on appeal, there is no record evidence that defendant went to
prison for domestic violence.
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On appeal, plaintiff asserts that no evidence other than a “malicious accusation” that she
had any mental-health problems existed. She further complains that defendant and Milnickel
committed perjury.
The record reflects no evidence that plaintiff had been diagnosed with a mental-health
condition. The only evidence tending to reflect on plaintiff’s mental health were the testimonies
by Milnickel and defendant about plaintiff’s behaviors. Milnickel stated that plaintiff acted
argumentative, communicated through racing speech, and appeared to have a view of events that
did not conform to reality. Defendant testified that plaintiff tried to attack him during a parenting
exchange, tended to “fly off the handle,” was stuck in her own ways, and engaged in verbal and
mental abuse. Although the referee acknowledged that plaintiff had not been formally diagnosed
with a mental-health problem, the referee nevertheless felt that plaintiff’s behaviors were
sufficiently concerning to warrant a psychological examination.
Plaintiff’s claims that defendant and Milnickel offered false testimony is not a sufficient
basis for concluding that the referee’s findings were contrary to the great weight of the evidence.
It was for the referee to assess the weight and credibility of the witnesses’ testimonies. See Berger,
277 Mich App at 705. The referee found defendant and Milnickel to be credible, and we will not
second-guess the referee’s assessment of their credibility. See id. Given the testimony that
plaintiff had difficult and odd interactions with the FOC staff and others, evidence supported the
referee’s finding that at least a concern existed that plaintiff’s mental health might be affecting her
ability to provide the children with a healthy custodial environment. As such, the referee’s finding
that Factor (g) favored defendant was not contrary to the great weight of the evidence. See
Fletcher, 447 Mich at 877-878.
The referee stated that the children were of an age to express their own views, which was
a factor to consider under MCL 722.23(i). The referee noted, however, that he had not been able
to ask the children about their preferences because plaintiff had not brought them to any hearings.
Indeed, the referee found that obtaining the children’s preferences appeared to be next to
“impossible.” The referee also stated concern that plaintiff would likely “sabotage any attempt”
to obtain a free expression of preference. The referee concluded that, even if the children expressed
a preference to remain in their mother’s sole care, that preference would not be dispositive.
Finally, the referee determined that Factor (k), MCL 722.23(k), which addressed domestic
violence, and the catchall Factor (l), see MCL 722.23(l), did not warrant discussion.
Plaintiff asserts on appeal that defendant engaged in domestic violence against her and that
defendant failed to follow court orders. No evidence anywhere in the record before this Court,
however, supports those allegations. Plaintiff did not appear at the evidentiary hearing and she
failed to submit any transcripts from any earlier proceeding that might support her claims. See
Myers, 189 Mich App at 443-444. Because no evidence in the record contradicts the referee’s
findings on these last factors, it cannot be said that the findings were contrary to the great weight
of the evidence. See Fletcher, 447 Mich at 877-878.
Examining all the factors, the referee determined that it served the children’s best interests
to order defendant to have sole legal and physical custody of both children. On this record, the
referee did not commit a palpable abuse of discretion when he determined that it would be in the
children’s best interests to change custody. See Berger, 277 Mich App at 705.
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IV. OTHER CLAIMS OF ERROR
At various points in her brief on appeal, plaintiff asserts that the trial court erred in some
respect when applying the law applicable to cases involving the termination of parental rights.
This case involved a custody dispute between natural parents who both have—and continue to
have—a fundamental liberty interest in the care and custody of their children. See In re AP, 283
Mich App 574, 591; 770 NW2d 403 (2009). The parties’ custody dispute was governed by the
Child Custody Act of 1970, MCL 722.21 et seq., which the trial court properly applied to the
filings at issue. See MCL 722.25(1) (requiring trial courts to resolve custody disputes between
parents according to the best interests of the child); MCL 722.27 (listing the powers that a trial
court has for resolving a custody dispute). There were no petitions under the juvenile code, see
MCL 712A.1 et seq.; the trial court did not take jurisdiction over the children under the juvenile
code; and the trial court did not terminate plaintiff’s parental rights, see MCL 712A.2(b);
MCL 712A.19b; MCR 3.961(A). Plaintiff continues to be the children’s parent and continues to
have her parental rights.4
Likewise, although a party has the right to the assistance of counsel in a case involving the
termination of parental rights, see MCL 712A.17c(4); MCR 3.915(B)(1)(b), there is generally no
right to have counsel at the state’s expense in a custody dispute. Cf. MCL 722.26e(2)(a) (giving
the trial court the authority to appoint a lawyer for a parent when a third party has initiated a
custody dispute). This case also does not involve children with Native American ancestry.
Accordingly, the trial court cannot be faulted for failing to apply the juvenile code to this custody
dispute, for failing to appoint a lawyer to represent plaintiff at the state’s expense, or for failing to
apply the Indian Child Welfare Act, 25 USC 1901 et seq., or the Michigan Indian Family
Preservation Act, MCL 712B.1 et seq.
On appeal, plaintiff has also cited statutory provisions governing custody and child welfare
from other states. The trial court had no obligation to apply foreign law. Foreign authorities may
be persuasive, see Franks v Franks, 330 Mich App 69, 97 n 4; 944 NW2d 388 (2019), but plaintiff
has not identified how her foreign authorities should be used in the proper application of Michigan
law.
Plaintiff also asserts that the referee, the trial court, and the FOC staff were biased and
engaged in misconduct. Plaintiff had the right to have an impartial decision-maker hear her case.
See Kern v Kern-Koskela, 320 Mich App 212, 231; 905 NW2d 453(2017). However, on appeal,
plaintiff does not identify any evidence showing that the referee or the trial court were biased
against her. She generally cites the fact that the referee made findings against her interests and
that the trial court, for example, subjected her to contempt proceedings, which she feels were
improper. “[J]udicial rulings, in and of themselves, almost never constitute a valid basis for a
4
On appeal, plaintiff invites this Court to terminate defendant’s parental rights based on her
allegations. This Court is an error-correcting court, see Apex Laboratories Int’l v Detroit, 331
Mich App 1, 10; 915 NW2d 45 (2020), and does not have original jurisdiction to consider a petition
to terminate a parent’s parental rights, see MCL 712A.1(e) (defining the court to be the family
division of a circuit court); MCL 712A.2(b) (defining the court’s jurisdiction over minors in a
termination proceeding).
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motion alleging bias, unless the judicial opinion displays a deep-seated favoritism or antagonism
that would make fair judgment impossible and overcomes a heavy presumption of judicial
impartiality.” Id. at 231-232 (quotation marks and citation omitted).
Plaintiff also claims that—at a contempt hearing—the trial court promised her lawyer that
he would “make the attorney win all other cases” if her attorney did not assist her at the contempt
hearing. She further alleges that her attorney accepted the deal, and she accuses the trial court of
conspiring with the court reporter to “forge” the transcripts against her. Again, plaintiff has no
evidence to support her accusations. Moreover, by failing to submit the relevant transcripts from
all the prior proceedings, plaintiff abandoned any claim that those proceedings showed evidence
of bias. See Myers, 189 Mich App at 443-444. Indeed, there is no basis for this Court to conclude
that the contempt proceedings were anything but proper. See Kern, 320 Mich App at 230 n 2
(recognizing that a party’s failure to submit the relevant transcripts hampers this Court’s ability to
question a lower court’s decision). On this record, plaintiff has failed to show that the trial court
or referee held a bias against her or otherwise acted inappropriately. Plaintiff also has not
identified any basis for concluding that the FOC staff held a bias against her or that Milnickel’s
testimony was anything other than accurate. In any event, even if Milnickel held a bias against
plaintiff, it was up to plaintiff to explore that bias at the evidentiary hearing. See Powell v Saint
John Hosp, 241 Mich App 64, 72; 614 NW2d 666 (2000) (noting that evidence of bias is always
relevant).
Plaintiff also alleges that the FOC engaged in misconduct. She claims, by way of example,
that the FOC improperly waived her right to receive child support, but the record belies that
accusation. The record shows that the FOC calculated defendant’s child support and enforced his
obligation to pay consistent with the law until he went to prison. After defendant’s release, the
FOC again enforced the payment schedule consistent with the law.
Plaintiff also claims that the trial court ordered the FOC to arrange transportation for the
parenting-time exchanges, but she cites no order to that effect, and she acknowledges that the FOC
informed her that she was responsible for arranging her own transportation. Plaintiff further
accuses the FOC of blackmailing her, protecting defendant, and working only for defendant’s
benefit. Plaintiff’s accusations are completely unsupported.
Plaintiff also complains that defendant maliciously caused her to be prosecuted for
contempt. More specifically, she asserts that the FOC gave her permission to take the children to
Florida, giving her every right to deprive defendant of his parenting time. She also asserts that she
had a medical excuse for failing to allow defendant to exercise his parenting time on another
occasion, so she could not be held in contempt. Plaintiff claims as well that the FOC investigator
lied under oath by stating at the hearing that defendant had not been arrested and had not had his
parenting time suspended automatically, which would preclude a finding of contempt. She also
states that defendant came at her in a rage during one contempt hearing.
Plaintiff has not appealed the trial court’s orders of contempt, so whether the trial court
erred when it ordered a sanction for contempt is not properly before this Court. See In re Moroun,
295 Mich App 312, 229; 814 NW2d 319 (2012). Additionally, she has not submitted any of the
transcripts from the contempt proceedings. For that reason, there is no record permitting this
Court’s review of the propriety of those proceedings and no basis for this Court to conclude that
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anyone lied under oath or misbehaved at the proceedings. See Myers, 189 Mich App at 443-444.
Plaintiff has not established any other errors in the lower court proceedings that warrant relief.
V. CONCLUSION
Plaintiff has not demonstrated that the trial court improperly ordered that the change of
custody served the children’s best interests. Accordingly, the trial court did not err.
Affirmed.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ James Robert Redford
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