Trial court wrong when it did not determine custodial environment.

In the Green case the defendant-mother was denied due process of law when the trial court was presented with a motion to clarify and expand parenting time, but sua sponte changed the established custodial environment to the plaintiff-father.

Therefore, the trial court erred by changing the physical custody of the parties’ minor children to plaintiff.

Plaintiff filed a motion to clarify the parenting time provision of the judgment of divorce and sought to expand his parenting time.

He did not request a change in custody. Consequently, when the evidentiary hearing was held, defendant was not placed on notice a change in custody might occur.

Although plaintiff testified he was a good father who established a structured environment for his children, defendant’s testimony was sparse at best.

The transcript resolving the divorce petition indicated the trial court refused to conduct a trial, despite the fact the parties requested a trial and despite the fact there were serious issues of financial responsibility, addiction, and domestic violence.

Moreover, at the conclusion of the evidentiary hearing, the trial court instructed the parties to submit proposed findings of fact and conclusions of law.

The trial court did not advise the parties the issues raised at the evidentiary hearing implicated the best interests of the children and the best interests of the children should be addressed in the pleadings.

Additionally, the trial court’s factual findings as set forth in the opinion were questionable at best. Defendant was not on notice she needed to delineate her daily routine and involvement in the children’s lives to justify a continuation of the previously ruled custody and parenting settlement produced at the behest of the trial court, advising the parties there would be no trial.

Further, the trial court acknowledged it did not interview the children, but nonetheless knew their preferences.

Finally, the trial court’s opinion did not address the basic premise involving child custody disputes, whether an established custodial environment existed.

The court held defendant was not afforded minimal due process, vacated the trial court’s opinion and order regarding parenting time and child custody, and remanded.

Affirmed in part, vacated in part, and remanded.

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Issues: Divorce; Custody; Whether the defendant-mother was denied due process of law when the trial court was presented with a motion to clarify and expand parenting time but sua sponte changed the established custodial environment to the plaintiff-father; Aichele v. Hodge; Kampf v. Kampf; Thomas v. Pogats; Dobrzenski v. Dobrzenski; Cummings v. Wayne County; Rittershaus v. Rittershaus; Shulick v. Richards; Hilliard v. Schmidt; Motion to hold plaintiff in contempt for failing to pay child support; Johnson v. White; Woodard v. Custer
Court: Michigan Court of Appeals (Unpublished) 9/25/07 from Wayne Circuit Court NO.274291
Case Name: Green v. Green
e-Journal Number: 37236
Judge(s): Fort Hood; Concurring in result only – Zahra; Concurrence - White