Claude Halstead v. Kelly Halstead

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
CLAUDE HALSTEAD, UNPUBLISHED
May 5, 2022
Plaintiff-Appellee,
v No. 358181
Crawford Circuit Court
KELLY HALSTEAD, LC No. 10-008308-DM
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MURRAY and O’BRIEN, JJ.
PER CURIAM.
Defendant, Kelly Halstead, appeals by right the trial court’s order awarding sole legal
custody of the child, KH, to plaintiff, Claude Halstead. We reverse and remand.
I. BACKGROUND
The parties were married in 1998. Two of the parties’ children are now adults and not at
issue in this matter: KHH, born in 1999, and CMH, born in 2002.1 Plaintiff filed for divorce in
early 2010, following which the parties apparently briefly reconciled, and the child at issue, KH,
was born in early 2012. The parties’ judgment of divorce was entered on August 3, 2012. The
parties were granted joint legal custody of all three children. The parties were also granted joint
physical custody of KHH and CMH; defendant was granted sole physical custody of KH with
“parenting time as agreed between parties.” In 2015, plaintiff moved to establish parenting time
with KH and obtain joint physical custody of KH. Plaintiff was granted parenting time, but his
motion for joint physical custody was denied because he did not establish proper cause or a
sufficient change of circumstances. Meanwhile, both parties entered into relationships with new
partners.
1
Some documents in the lower court record list various other years for CMH’s birth date, but these
references appear to be erroneous.
-1-
In April 2020, plaintiff filed an ex parte motion for temporary physical custody of KH,
contending that recent changed circumstances placed KH in jeopardy with defendant. Plaintiff
alleged that defendant had recently divorced, moved to an undisclosed location, refused to provide
plaintiff with her new location, and could not drive. Plaintiff further alleged that defendant’s now-
former partner had reported that defendant “isn’t in the right state of mind to properly care for
[KH].” Furthermore, plaintiff alleged that defendant and another child in her current residence
had been diagnosed with influenza-B, which, because of the stay-at-home orders in effect due to
the COVID-19 pandemic, made it likely KH would be exposed to influenza-B. As would later be
clarified, defendant and KH had, in January 2020, moved out of the residence that defendant shared
with her prior partner and into a domestic violence shelter. By late April or early May 2020,
defendant and KH had moved into a residence with defendant’s new partner and then-fiancé.
Defendant’s moves did not interfere with plaintiff’s parenting time, although plaintiff did not
become aware of the changes in defendant’s living situation until after the fact. Defendant
provided the address of the shelter to the Friend of the Court, but she explained that the shelter had
a number of rules, one of which was that she should not disclose the address.
Plaintiff sought the change of custody on an emergency and ex-parte basis because the
courts were then closed due to the COVID-19 pandemic. The trial court promptly denied the ex
parte motion, finding that “[p]laintiff has not pled facts warranting ex parte relief. Plaintiff may
file a motion and set it for hearing if he wishes.”
Thereafter, plaintiff unilaterally refused to return KH following plaintiff’s weekend
visitation that was scheduled to end on May 17, 2020. On May 26, 2020, defendant and her then-
fiancé went to plaintiff’s house to see KH. As will be discussed, this attempted visit went poorly,
resulting in distress to KH and plaintiff obtaining a PPO against defendant. The trial court would
later opine that the events of that day reflected less than exemplary behavior on the part of both
parents. In June 2020, defendant filed a complaint that plaintiff was violating the parties’ parenting
time order. A month later, the trial court agreed that plaintiff was in violation of the parenting
time order, ordered plaintiff to return KH to defendant immediately, and ordered that defendant
would receive make-up parenting time. It also ordered the parties to communicate regarding
parenting time by text message through defendant’s new partner.2
Also in June 2020, plaintiff filed a motion to modify custody and parenting time. Plaintiff
alleged that KH had an established custodial environment with himself, and KH previously had an
established custodial environment with defendant’s former partner, who plaintiff alleged had
actually been KH’s primary caretaker. Plaintiff further alleged that defendant’s divorce from that
partner, defendant’s move to a shelter, defendant having recently been to the hospital emergency
room, and the former partner’s report that defendant “has begun using drugs again” constituted
proper cause and a change of circumstances to modify custody. Plaintiff contended that he could
provide KH with support and stability, whereas defendant could not. A lengthy evidentiary
2
A recurring theme was poor communication between the parties, much of which was routed
through their respective partners. Plaintiff apparently had a reasonable working relationship with
defendant’s former partner and, as will be discussed, stated that he would not have sought to
change custody if defendant had not broken up with that former partner.
-2-
hearing regarding plaintiff’s motion was held before a referee over three days, with testimony
mostly limited to events occurring after the 2015 custody order. Plaintiff never sought to change
legal custody of KH, and the evidentiary hearing focused on physical custody.
Testimony was introduced from defendant’s former partner, two of the former partner’s
children, plaintiff’s wife, a doctor who shared a practice with one of defendant’s doctors, the
parties’ middle child CMH, defendant’s then-fiancé, a friend and neighbor of defendant, and both
parties. Plaintiff testified that he would not have sought to change custody if defendant was still
with her former partner. He also testified that he never missed any parenting as a result of
defendant’s moves. Rather, he believed that he was entitled to know where his daughter was
living, he was concerned that defendant had not told him about her breakup and her move, and he
believed defendant’s former partner had been KH’s primary caregiver. He was not aware of KH
being neglected by defendant while defendant’s former partner was at work.
Defendant’s former partner and her children generally expressed concern that defendant
spent much of the time sleeping, seemingly under the influence of drugs, and generally unavailable
and delegating a significant portion of care and parenting of KH to others. However, the former
partner’s daughter testified that she only visited a few times a year after 2015, the former partner’s
son testified that defendant and the former partner both parented KH, and the former partner
testified that she did not observe plaintiff abusing drugs other than a single incident in 2016.
Furthermore, defendant babysat every day for two little boys, and the former partner was unaware
of any issues with those children. The doctor testified that defendant had struggled with illicit
drug use in 2013, but other than a relapse incident in 2016 following which defendant’s
medications were changed, defendant was now compliant and getting regular drug screens along
with her treatment for a number of medical conditions. CMH testified that he lived primarily with
plaintiff, that he had smoked marijuana with defendant in 2016, that he was concerned about
defendant’s ability to parent KH because of her “old drug addictions” and her sleeping all the time,
and that defendant’s partner had been KH’s primary caregiver. However, he was unaware of KH
being injured or neglected in defendant’s care, and he had not seen defendant recently.
Defendant’s then-fiancé, an emergency room EMT who had substantial experience with
addicts, testified that she was aware that defendant had a history of drug abuse, but had no present
concerns about defendant caring for children or abusing her medication. She testified that
defendant got up in the mornings and assisted in getting both KH and the fiancé’s child ready for
school. She opined that “we live a pretty boring life.” Defendant’s friend and neighbor testified
that defendant babysat her youngest child weekly, and she saw defendant daily. She opined that
defendant and KH had a great relationship, that defendant played with the various neighborhood
children, and defendant had helped with one child’s behavioral issues. The friend was also aware
that defendant had drug abuse problems in the past, but had no concerns about defendant now.
Defendant admitted that she had relapsed on drugs in 2016, and she told plaintiff about the
relapse a month later. She opined that it was a “one-time thing.” Shortly thereafter, she tested
positive for fentanyl because the pain clinic where she was receiving treatment accidentally gave
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her the wrong drug, a claim she supported with a medical record from the clinic.3 Defendant
testified that she left her previous partner because her previous partner abused her psychologically
and physically. While at the shelter, she was taken to the hospital because she had been ill and
taken some leftover antibiotics originally prescribed to KH, but she then suffered an allergic
reaction to those antibiotics. Defendant testified that plaintiff always had his scheduled parenting
time with KH. Furthermore, she testified that she attended KH’s parent-teacher conferences and
kept plaintiff apprised of those meetings and of medical appointments, but plaintiff had not
involved himself in KH’s education or medical needs. Defendant also testified that CMH suffered
broken bones and concussions while in plaintiff’s care, but defendant was never timely informed
her about those injuries, and some were not disclosed to her at all. Defendant testified that she had
been diagnosed with hepatitis C in 2020 after complaining of constant fatigue, and after completing
treatment later that same year, she had more energy.
Several witnesses provided differing accounts of the incident that occurred on May 26,
2020, while plaintiff was keeping KH in violation of the parenting time order. That afternoon,
defendant and her then-fiancé showed up at plaintiff’s house to see KH. It was generally agreed
that, when they showed up, plaintiff’s wife took KH and the wife’s child inside, and KH
experienced some degree of distress. The witnesses differed as to whether the fiancé banged on
the gate and the extent to which defendant yelled. Following that incident, plaintiff obtained a
PPO against defendant and enrolled KH in counseling. At the conclusion of the evidentiary
hearing, the referee found no proper cause or change of circumstances that would warrant
consideration of a change of custody. The referee opined that the evidence did not support
plaintiff’s belief that KH was in danger due to drug abuse or neglect by defendant, and plaintiff
had seemingly found it difficult to adapt to dealing with defendant directly instead of through
defendant’s former partner. The referee recommended denying plaintiff’s motion.
Plaintiff objected to the referee’s recommended order. The trial court reviewed the
evidentiary hearing and then made a bench ruling that mostly affirmed the referee. In particular,
the trial court agreed with the referee that plaintiff had failed to establish proper cause or a change
of circumstances to warrant a change of physical custody. However, the trial court sua sponte
went beyond plaintiff’s objections and stated:
where I would differ with the Referee, and I think is quite clear, is that you guys
have joint legal custody and it’s quite clear to me that you have not followed the
tenants [sic] of joint legal custody. Either one of you. . . . [T]he idea behind joint
legal custody is that you’re gonna cooperate with each other as parents, and both
be involved in major decisions related to the minor child[.]
So, you know, from [plaintiff] I’ll just give you [an] example of [defendant]
identifying she didn’t know about [CMH]’s concussions from—and injuries from
wrestling and other things he was doing until kind of getting into this case.
3
There appears to be no dispute that the fentanyl incident really was an accident by the clinic and
no fault of defendant.
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[Defendant], for [plaintiff], he has, I think very legitimate concerns that
can’t be brushed away. That, that are appropriate for him to have. And what I
mean by that is, the example of one, if you’re suffering from domestic violence
that’s something that [plaintiff] should be made aware of. Because your daughter’s
in that setting and he would have a legitimate concern about her welfare.
If you’re moving. He should know where you’re moving. If you’re moving
in with somebody else that your daughter’s going to exposed to he should know
who that is and be able to meet them, and do things like that. If you have a drug
overdose he should be made aware of that because it may impact your ability to
parent. And he would need to know whether or not Kai was safe.
And, and so in the court[’]s standpoint the one error I do find with regard to
the ruling by the Referee is there was no change to legal custody.
The trial court emphasized its belief that defendant made a mistake in 2016, which might have
warranted changing physical custody at that time, but on the basis of defendant’s subsequent
recovery, plaintiff’s motion was simply too late. However:
I am gonna change legal custody. I’m gonna leave physical custody as it is. I’m
gonna tell both parties that – and this is probably more important for you
[defendant]. Is that it has the potential to change physical custody later if it’s not
being followed. I’m gonna grant sole legal custody to [plaintiff] because I think
there have been some issues here in terms of some insight and decision making by
you [defendant].
The trial court ordered defendant to provide plaintiff with records and updates from her doctor so
that plaintiff could determine that she really was recovering, to refrain from using anyone else’s
prescription medications, and to inform plaintiff immediately if she became hospitalized or went
back to a shelter. It chastised both parties for their roles in the May 26 incident and for their
failures in communicating with each other. Defendant protested that she had attempted to work
with plaintiff and he had refused, to which the trial court responded that she would have to try or
risk losing physical custody as well. The trial court concluded by flatly stating that it would not
restore joint custody, unless perhaps “if you two were to work together for some prolonged period
of time and wanted to come back and tell me now you could do it.” The trial court entered an
order on March 12, 2021, modifying the legal custody of KH from joint legal custody between the
parties to sole legal custody with plaintiff.
Defendant moved for reconsideration. The trial court rejected defendant’s arguments that
it was not permitted to change legal custody unrequested or without finding proper cause or a
change of circumstances, but it agreed that the parties were entitled to supplement the record and
that it would need to engage in an analysis of the best-interests factors. It also stated that after
supplementation of the record it would “analyze whether proper cause exists to modify the joint
legal custody of the parties.” Both parties testified at the ensuing evidentiary hearing. In addition,
defendant presented testimony from a counselor who had seen KH weekly from September 2020
through April 2, 2021; and from the principal at the elementary school KH was attending.
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The counselor testified that defendant had brought KH to sessions, and at the end of March
2020, plaintiff contacted her to advise her of the change of legal custody and request that she direct
all scheduling and other questions to him. She believed that she had a good therapeutic relationship
with KH, and plaintiff initially seemed inclined to continue KH’s therapy. However, on April 6,
2021, plaintiff left her a voice mail “stating that [she] should consider all future appointments
cancelled, and to call and talk to him if [she] had any question.” The counselor attempted to
contact plaintiff, but he never responded. The counselor opined that “bouncing a child from
therapist to therapist can make therapy less effective for the child,” and KH had already switched
counselors twice (one of whom had to be replaced because that counselor left the state). The
counselor was aware that defendant’s fiancé was the daughter of the counselor’s supervisor, but
emphasized that the supervisor was obligated to maintain confidentiality and was unaware that
plaintiff had any concerns about the supervisor.
The school principal testified that he had very little direct involvement with individual
students, and most contact would be through teachers. The principal testified that in March 2021,
he was contacted by plaintiff, who asked to add his wife and defendant’s former partner as
emergency contacts, and also to remove several contacts that had previously been provided by
defendant. Plaintiff also demanded that all records and information be sent only to him, and he
stated that he would pass information on to defendant. The principal asked plaintiff to provide
“court documentation” to prove he had the authority to make that change. Plaintiff never did so;
rather, he only provided a letter from his attorney, even after the principal subsequently told
plaintiff that he needed a court document. The principal therefore had no way to verify whether
plaintiff really had any authority to make decisions for KH. The principal was also concerned that
the names plaintiff wanted added lived at least an hour and a half away, which would be a problem
if KH “is sick, or needed something immediate.” Plaintiff did eventually provide the principal
with a release to allow the school to provide information directly to defendant.
Plaintiff admitted that he never provided the principal with a copy of the court’s order. He
pointed out that he had not previously been listed as a contact for KH at the school, which he felt
was inappropriate even though he lived some distance away. He contended that he had not
attended any school meetings at KH’s current school because of the distance and because he had
been “left in the dark.” Nevertheless, he also admitted he previously had joint legal custody and
access to the app used by the school for managing interactions with parents, although he became
more involved with it after gaining sole legal custody. He did not recall defendant keeping him
apprised of parent teacher conferences, and he admitted he never previously reached out to the
school. He made some changes to KH’s medical care after gaining sole legal custody, which he
explained was initially in an effort to keep KH’s treating doctors more local to defendant and
within coverage by his insurance. Plaintiff was also concerned about KH receiving “better
choices” of healthy food.
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Plaintiff changed KH’s counselor because he believed “there was information being
leaked” through the counselor’s supervisor.4 He opined that the prior counselor was “a wonderful
therapist,” but he believed KH had changed for the better and was “more interactive” with him
since changing counselors. Nevertheless, he admitted that KH had only seen her new counselor
once so far. Furthermore, he admitted that he learned of the former counselor’s supervisor in
January, but despite having joint legal custody at that time, he never attempted to bring his
concerns to defendant’s attention. On March 22, 2021, plaintiff informed defendant by text
message that she “broke the court order” by taking KH to her counselor, stating that “from here on
out I am making all of [KH’s] doctor appointments and I’ll be keeping you informed.” However,
he did permit her to take KH to the emergency room if she was bleeding or had a broken bone
without first informing plaintiff.
Plaintiff believed that everything had previously been “one sided” with defendant, but now
everything was “working fantastic.” He also believed that defendant’s participation in parenting
had likewise improved, and he noted that the parties had coordinated to allow defendant to take
KH camping.
Defendant disputed plaintiff’s characterization of their communication improving since the
change of legal custody. She explained that she had previously kept plaintiff informed of medical
appointments, school conferences, and other educational or medical matters, to which plaintiff
merely provided terse acknowledgements. She testified that plaintiff never affirmatively reached
out to her. Since the change of legal custody, she opined that
since the legal change it’s only gotten worse. I think he’s on a power trip and it’s
– he says it’s my way or no way, but it’s the complete opposite. And I just – I don’t
understand.
She opined that KH was “stuck in the middle.” Defendant further stated that she had been “black
listed from making any appointments” and not allowed to attend some of KH’s appointments,
leading her to feel she did not “have any say so in my own child.” She believed that she was not
even realistically able to seek medical attention for KH when necessary, and plaintiff had
threatened to put her in contempt if she tried. In addition to forbidding defendant from attending
some medical appointments, defendant stated that
He just says I have sole legal custody and what I say goes basically. Or just the
simple no, or he just doesn’t answer me.
She believed that because KH spent more time with her, she was in a better position to know KH’s
medical needs. She also believed that matters were only likely to get worse, and plaintiff’s control
over medical and educational decisions and information interfered with her ability to parent KH.
Defendant admitted that plaintiff had not been on the school’s emergency contact list. However,
4
The trial court opined that plaintiff’s suspicions were understandable, but they were probably
based on a misunderstanding of the supervisor’s confidentiality obligations and how involved the
supervisor would have been in KH’s therapy.
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she believed the list only governed who could pick KH up, and she opined that because plaintiff
was KH’s father, he did not need to be on the list.
The trial court issued a bench ruling. The trial court impliedly recognized that it could not
change established legal custody without finding proper cause or change of circumstances.
However, it opined that it was unclear whether “the parties had any kind of a joint established
custodial environment with regard to legal custody,” and even if they did, their respective failures
to communicate and cooperate had destroyed any such established custodial environment. The
trial court therefore concluded that it needed to determine the best interests of KH by a
preponderance of the evidence.5 The trial court then analyzed each of the statutory best-interests
factors under MCL 722.23, ultimately finding them to generally favor plaintiff. It therefore
concluded that awarding plaintiff sole legal custody remained appropriate.
However, it explained to the parties that legal custody entailed making “big decisions” or
“macro issues,” and physical custody entailed “micro issues.” Therefore, for example, it believed
defendant had the right to decide who would pick KH up from school, and it would be up to
plaintiff if there were “safety implications or some kind of bigger systems approach issue that
needs to be addressed.” It emphasized that plaintiff was not entitled to micromanage KH or
defendant, that he ought not to change established procedures just because he had the authority to
do so, and that testimony from the reconsideration evidentiary hearing suggested that plaintiff
might have exceeded his authority or inappropriately used that authority “as a sword to kind of
stick [defendant].” It further emphasized that plaintiff’s spouse was not entitled to make decisions,
which the trial court suspected might be occurring. It therefore explained that although plaintiff
was entitled to choose which professionals would see KH or make major medical decisions like
surgery, defendant had a right to take KH to the emergency room or urgent care, defendant had a
right to take KH to her medical appointments, and defendant had a right to decide to take KH home
from school if she was ill. Furthermore, both parties were “entitled to know about what’s
happening with [KH]” at school. The trial court implied that it might revisit the matter of custody
if plaintiff, on his own behalf or on behalf of his spouse, attempted to micromanage KH or
defendant. The trial court entered an order awarding sole legal custody to plaintiff “for reasons
articulated on the record,” and this appeal followed.
II. STANDARDS OF REVIEW
In a child custody dispute, “all orders and judgments of the circuit court shall be affirmed
on appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28.
This Court reviews a trial court’s findings, including a showing of proper cause, a change of
circumstances, the existence of an established custodial environment, and the best-interests factors,
to determine whether the findings were against the great weight of the evidence. Corporan v
5
As will be discussed, when changing custody of a child, the trial court must find that doing so is
in the child’s best interests. If there is no established custodial environment, the trial court need
only find the child’s best interests by a preponderance of the evidence; whereas if there is an
established custodial environment, the trial court must find the child’s best interests by clear and
convincing evidence. Pierron v Pierron, 282 Mich App 222, 244-245; 765 NW2d 345 (2009).
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Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009). A trial court’s finding is against the
great weight of the evidence if “the evidence clearly preponderates in the opposite direction.” Id.(quotation omitted). “An abuse of discretion standard applies to the trial court’s discretionary
rulings such as custody decisions. Id. (quotation omitted). “An abuse of discretion, for purposes
of a child custody determination, exists when the result 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.” Butler v Simmons-Butler, 308 Mich App 195, 201; 863 NW2d 677 (2014) (citation
omitted). Questions of law are reviewed for clear legal error, meaning the trial court “incorrectly
chooses, interprets, or applies the law.” Corporan, 282 Mich App at 605 (quotation omitted).
III. SUA SPONTE CONSIDERATION OF LEGAL CUSTODY
We first address defendant’s contention that the trial court was not permitted to consider
or change legal custody where plaintiff never requested a change to legal custody. We conclude
that the trial court was not absolutely prohibited from sua sponte considering legal custody despite
plaintiff only requesting a change of physical custody, but we conclude that it was error for the
trial court to do so under the particular circumstances of this case.
If a trial court sua sponte addresses and decides an issue that was not properly before it,
the trial court’s decision may be subject to vacation or reversal. See Falconer v Stamps, 313 Mich
App 598, 646-648; 886 NW2d 23 (2015). However, “addressing a controlling legal issue despite
the failure of the parties to properly frame the issue is a well understood judicial principle,” and
“the parties’ failure or refusal to offer correct solutions to” an issue does not limit an appellate
court’s “ability to probe for and provide the correct solution.” Mack v Detroit, 467 Mich 186, 207;
649 NW2d 47 (2002). The fact that no party adequately briefed or explored a particular issue does
not necessarily mean the trial court was precluded from considering the issue, and it is not
dispositive of whether the issue was properly before the court. Nevertheless, we cannot conclude
that the only prerequisite to a trial court raising an issue sua sponte is whether the court affords the
parties an opportunity to address the issue.
In Falconer, this Court vacated a trial court’s award of grandparenting time because the
proceeding was a custody dispute, and grandparenting time was an entirely different cause of
action and “not automatically included” in a custody request. Falconer, 313 Mich App at 642,
648. However, a “child custody dispute” means “any matter that relates to the custody of a child
from the time the issue of custody arises until the child reaches the age of majority.” Phillips v
Jordan, 241 Mich App 17, 23 n 1; 614 NW2d 183 (2000). “While the Child Custody Act draws a
distinction between physical custody and legal custody, Vodvarka [v Grasmeyer, 259 Mich App
499; 675 NW2d 847 (2003)] referenced ‘custody’ as logically referencing both legal and physical
custody.” Merecki v Merecki, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No.
353609); slip op at 4. Nevertheless, “the Legislature divided the concept of custody into two
categories—custody in the sense of the child residing with a parent and custody in the sense of a
parent having decision-making authority regarding the welfare of the child.” In re AJR, 496 Mich
346, 361; 852 NW2d 760 (2014). “Physical custody pertains to where the child shall physically
reside, whereas legal custody is understood to mean decision-making authority as to important
decisions affecting the child’s welfare.” Grange Ins Co of Mich v Lawrence, 494 Mich 475, 511;
835 NW2d 363 (2013) (quotation omitted).
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Unlike grandparenting time, legal and physical custody both fall within a “child custody
dispute.” Therefore, where one is directly before a court, the other could be properly also before
the court by necessary implication, even if not expressly raised by either party. Nevertheless, they
are sufficiently distinct that one does not necessarily implicate the other. In other words, where
one form of custody is expressly before the court, the court could, under proper circumstances,
conclude that it was necessary to also address the other form of custody. This is especially true
given the circuit court’s de novo review of the referee’s findings. We need not consider under
which circumstances such an implication would arise, because they clearly did not arise in this
case and under these circumstances.
Importantly, courts ought to be cautious in addressing issues or granting relief outside the
bounds of the parties’ requests, even where such consideration is not precluded. The trial court
did not exercise a proper degree of caution in this matter, and the facts do not support the trial
court’s conclusion that legal custody was properly before it. Not only did plaintiff never seek a
change in legal custody, plaintiff never even tried to involve himself in the kinds of decisions
implicated by legal custody. There was no evidence whatsoever that the parties had any
disagreements about KH’s education or medical care. Defendant left an abusive partner and
entered into a new relationship: the former is a tragic situation that defendant was absolutely
entitled to remedy, and the latter is merely an ordinary life change, over which, as will be
discussed, plaintiff sought to exercise a degree of control to which he was not entitled. The trial
court erred in concluding that legal custody was properly before it, such that it could consider
changing legal custody. Furthermore, as will be discussed, even if the trial court’s sua sponte
consideration of legal custody had been proper under the circumstances, the trial court committed
additional errors that would independently require reversal.6
IV. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Defendant further argues that the trial court erred in stating that it was not required to find
proper cause or change of circumstances before changing KH’s legal custody. We agree.
A. PROCEDURE
Before modifying or amending a custody order, the circuit court must determine whether
the moving party has demonstrated either proper cause or a change of circumstances to warrant
reconsideration of the custody decision. MCL 722.27(1)(c); Vodvarka, 259 Mich App at 508-509.
The movant has the burden of proving by a preponderance of the evidence that either proper cause
or a change of circumstances exists. Vodvarka, 259 Mich App at 509. If the movant fails to make
a threshold showing of proper cause or change in circumstances, the trial court is precluded from
holding a best-interests hearing. Vodvarka, 259 Mich App at 508. Technically, there was no
6
However, we disagree with defendant’s contention that the trial court impermissibly bifurcated
legal and physical custody. The trial court did not “treat[] the two forms of custody differently.”
Merecki, ___ Mich App at ___; slip op at 4. Although it was error for the trial court to consider
legal custody at all under the circumstances, and the trial court erred on the facts even if it had
been permitted to consider legal custody, it did not bifurcate the two forms of custody merely by
addressing one after the other.
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“moving party” seeking to change KH’s legal custody in this matter, but plaintiff effectively
embraced that role and should be treated as such.
The trial court initially held that it was not obligated to make a finding of proper cause or
change of circumstances before changing legal custody, because it believed doing so would not
alter the child’s established custodial environment. This was incorrect. Legal custody refers to
the “decision-making authority as to the important decisions affecting the welfare of the child,”
MCL 722.26a(7)(b), including decisions such as health care, education, and religion, see Bofysil v
Bofysil, 332 Mich App 232, 249; 956 NW2d 544 (2020). A parent without legal custody does not
have legal authority to make major decisions on behalf of the child. A change from joint legal
custody to sole legal custody would necessarily alter the decision-making authority as to important
decisions affecting KH’s welfare. The trial court is required to determine whether there was proper
cause or change of circumstances as a prerequisite to determining whether there was an established
custodial environment. Vodvarka, 259 Mich App at 509, 511; see also Pierron v Pierron, 283
Mich App 222, 243-244; 765 NW2d 245 (2009). The trial court made a clear legal error by
concluding that a change in legal custody does not affect a child’s established custodial
environment merely because the child’s physical environment might not change. In addition,
changing who has the authority to make major decisions in a child’s life would inevitably affect,
at least to some extent, how the child interacts with either parent.
It is clear from reading the trial court’s bench ruling as a whole that it was convinced that
the parties’ inability to communicate and cooperate made an intervention necessary. “Proper
cause” and “change of circumstances” both require a determination, based on the particular facts
of the case, that some condition in the child’s life is having, or could have, a significant effect on
the child’s well-being. Vodvarka, 259 Mich App at 511-514. Nowhere did the trial court reflect
on what harm, if any, KH was suffering. Rather, as will be discussed further, the trial court was
clearly concerned with the effect the parties’ difficulties cooperating was having on plaintiff.
Therefore, the trial court never satisfied the substantive prerequisites to engaging in that
consideration.
Additionally, the overriding goal in child custody matters is to avoid unnecessary
disruptions to a child’s life. See Vodvarka, 259 Mich App at 511. As the trial court correctly
recognized, it committed a procedural error when it entered an order effectuating the change of
legal custody before affording the parties an opportunity to address the issue and introduce
evidence relevant to that issue. See Fawley v Doehler-Jarvis Div of Nat’l Lead Co, 342 Mich 100,
102; 68 NW2d 768 (1955). The trial court addressed that error by granting the parties
reconsideration and an evidentiary hearing. Al-Maliki v LaGrant, 286 Mich App 483, 485-486;
781 NW2d 853 (2009). However, although this Court in Al-Maliki held that “[w]here a court
considers an issue sua sponte, due process can be satisfied by affording a party an opportunity for
rehearing,” this Court did so in the context of civil litigation for money damages, not in the context
of a child custody proceeding. See id. The distinction is critical: money is fungible and
replaceable, whereas childhoods are not. Furthermore, this Court held that due process can be
satisfied by an after-the-fact rehearing, not that due process necessarily is satisfied. Under the
circumstances, we cannot conclude that the trial court fully cured its error. Rather, the trial court’s
change in legal custody before giving the parents an opportunity to be heard on the issue generated
exactly the kind of disruption to KH’s life that should be avoided.
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B. FACTUAL DETERMINATIONS
The trial court’s ruling is, finally, lacking in any explanation of how KH was actually or
potentially suffering harm as a result of the parties having joint legal custody and difficulties
cooperating.
“In order for joint custody to work, parents must be able to agree with each other on basic
issues in child rearing—including health care, religion, education, day to day decision making and
discipline—and they must be willing to cooperate with each other in joint decision making.”
Fisher v Fisher, 118 Mich App 227, 232; 324 NW2d 582 (1982). However, “cooperation is only
one factor for the court to consider in its decision to grant or deny joint custody.” Nielsen v Nielsen,
163 Mich App 430, 434; 415 NW2d 6 (1987). In Fisher, sole custody was appropriate because
the parents had an irreconcilable conflict regarding their child’s religious upbringing. Fisher, 118
Mich App at 233-234. In Nielson, sole custody was inappropriate because the children had not
been suffering under the established joint-custody arrangement, and the parents’ personal
animosity and disputes regarding custody times did not rise to the level of an inability to agree on
basic child-rearing issues. Nielson, 163 Mich App at 434-435. In Dailey v Kloenhamer, 291 Mich
App 660, 666; 811 NW2d 501 (2011), sole legal custody was warranted because the parents not
only could not agree on the proper educational course for the child, their disagreements had
interfered with the child’s medical treatment, directly implicating their ability to provide the child
with medical care under MCL 722.23(c). Notably, “the parties had placed a priority on their efforts
to document their actions and their disagreements, while the child’s medical and educational care
had been relegated to an apparently secondary concern.” Id. at 668.7
The evidence here is that defendant did not immediately inform plaintiff that she had
relapsed on drugs in 2016, that she had broken up with a partner, and that she had moved to a
shelter. Plaintiff opined that defendant needed his permission to take KH to the domestic violence
shelter with her. We disagree: a custodial parent does not need the other parent’s permission to
change partners or remove herself and a child from a dangerous situation.8 The evidence also
reflected that plaintiff was largely uninvolved in KH’s education and medical care, and his lack of
involvement was seemingly because he simply made no attempt to become involved. The
evidence also reflected that he chose not to communicate with defendant directly, instead routing
communications through his wife or defendant’s partners. Indeed, plaintiff stated that if defendant
7
This Court also specifically held that there is no statutory prohibition against awarding the parents
joint physical custody while also awarding one parent sole legal custody. Dailey, 291 Mich App
at 670. As will be discussed below, however, doing so should be a last resort.
8
According to plaintiff’s testimony, KH brought up to plaintiff that she had been at the domestic
violence shelter and that “she liked it for the fact that they had a lot of toys there.” KH does not
appear to have suffered any actual harm as a result of spending time at the shelter. We note that
although the trial court chastised defendant for failing to keep plaintiff informed of her move to
the shelter, it never gave any hint that it agreed with plaintiff that she required his permission to
go there or to take KH to the shelter with her. Indeed, the trial court strongly implied that any such
attempt by plaintiff to control defendant would be inappropriate.
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and her former partner were still together, plaintiff would “absolutely not” have moved to change
custody.
The evidence showed that defendant made educational and medical appointments and
decisions and kept plaintiff informed about those appointments and decisions. Furthermore,
plaintiff had access to the school’s app and was not precluded from involving himself in KH’s
education. Notwithstanding plaintiff’s testimony that things were “[defendant’s] way or no way,”
there was no evidence that the parties had a disagreement, or that plaintiff attempted to make
decisions for KH only to be thwarted by defendant. Rather, plaintiff apparently just went along
with those decisions, and his testimony emphasized that his concern was mostly that he had not
been informed about defendant’s moves. At the most, he believed it was unhealthy for KH to
move so frequently because she needed more stability.9
We do not disagree with the trial court’s conclusion that parents should be informed of
their children’s living situations. We are unable to find it against the great weight of the evidence
that defendant should have kept plaintiff better informed about where KH was living at any
particular time. However, defendant was not obligated to inform plaintiff of her location at the
domestic violence shelter or seek plaintiff’s permission. Furthermore, the evidence does not
appear to support a finding that the parties had the kind of irreconcilable clash of beliefs as to
major decisions affecting KH’s well-being as in Fisher and Dailey. Plaintiff’s frustration with
being kept out of the loop—despite never missing any parenting time and having made no effort
to keep himself in the loop—culminated in plaintiff resorting to self-help and violating a court
order by refusing to return KH to defendant. We again do not disagree with the trial court that
defendant’s response to that self-help did not improve the situation, and both parties contributed
to traumatizing KH in the process; nevertheless, plaintiff was the clear instigator. Plaintiff’s
concern with KH having a stable environment is not inappropriate, but penalizing a parent for
freeing herself from an abusive environment is inappropriate, as is resorting to a unilateral
violation of a court order. Furthermore, entering a new relationship, by itself, is simply the kind
of “normal life change,” see Vodvarka, 259 Mich App at 513, that will not constitute a “change of
circumstances” for purposes of revisiting custody.10
Furthermore, the trial court seemingly conflated the issues of whether there was an
established custodial environment and whether the parties’ conduct was incompatible with joint
legal custody. Joint legal custody was established by the judgment of divorce, although the trial
9
We do not necessarily take issue in the abstract with the trial court’s concern that defendant had
a history of improperly hiding information from plaintiff that she felt might appear unfavorable.
However, she was not obligated to disclose the shelter’s address to anyone other than the Friend
of the Court (which she did), and she was certainly not obligated to disclose personal information
that did not affect KH’s health and safety (which the move to the shelter did not). Furthermore,
the trial court clearly gave that concern undue weight, given that plaintiff openly acknowledged
that he sought a change of custody only because defendant left her former partner.
10
We also find concerning plaintiff’s demand to make defendant’s former partner an emergency
contact for KH at her school, despite defendant having left that former partner due to being abused
by that former partner.
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court properly did not regard that judgment as dispositive by itself. See Marik v Marik, 325 Mich
App 353, 370; 925 NW2d 885 (2018). However, presuming the evidence reflected a functional
absence of joint legal custody, the evidence did not support a finding of no established custodial
environment. Pursuant to MCL 722.27(1)(c):
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency of
the relationship shall also be considered.
The parents’ ability and inclination to cooperate with each other does not intrinsically affect any
of the above considerations. Furthermore, the evidence showed that defendant had, for an
appreciable time, an established history of making major decisions for KH. On this record, the
evidence simply cannot support a finding that there was no established custodial environment with
defendant relevant to physical or legal custody, nor can the evidence support any finding of proper
cause or change of circumstances.11
It is important to keep in mind that when parents who share joint legal custody cannot agree
on an important decision affecting the welfare of their child, the trial court’s role is ordinarily to
determine that issue in the best interests of the child. Pierron, 282 Mich App at 246-247.
Rescinding joint legal custody in favor of sole custody may be the best solution under some
circumstances. See Fisher, 118 Mich App at 233-234; Dailey, 291 Mich App 660, 666-668.
However, ordering a change to sole legal custody should only be a last resort where no realistic
alternative exists. Pierron, 282 Mich App at 262-263. The record does not convincingly show
that no realistic alternative existed here, and as discussed, the focus must be on how any such
conflicts affect the child rather than one or the other (or both) of the parents.
We note briefly that were we to review the trial court’s findings regarding the statutory
best-interests factors, we would not agree with all of them. However, the trial court was, on the
basis of a multitude of independent errors, precluded from reaching the best-interests factors in the
first place. We also note that we are gravely concerned by the trial court’s statements on the record
to defendant, essentially dictating to her that she must comport with whatever plaintiff required
without any recourse or protection, and the trial court continued that order despite clear evidence
on the record that plaintiff immediately proceeded to abuse his authority when given sole legal
custody. Nevertheless, we ultimately need not determine whether these issues would have also
merited reversal.
The trial court’s order changing KH’s legal custody to be exclusively with plaintiff is
reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.
We caution that if legal or physical custody is further considered, it would be improper and
impermissible to use the erroneous change of legal custody that gave rise to this appeal, or any of
11
We recognize that the trial court has a more extensive history with the parties than may be
reflected in the record provided to us on appeal, but our consideration is limited to that record.
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the consequences thereof, to “bootstrap” a finding of just cause or change of circumstances at any
future date. We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Colleen A. O’Brien
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