Custody could be sole physical and legal to one parent or both. This Genesee County case works through the law of custody and some unique and other procedural issues. [trb]
THIS IS THE TOPIC OF MY RADIO SHOW 9 AM to 9:30 AM EASTERN ON SATURDAY 7/26/08 WFLT 1420 AM RADIO ITS A CALL IN SHOW 1-810-239-5733. You are invited to call in.[trb]
[trb]QUESTION; If the parents are never married but work out a liberal and shared parenting time/custody arrangement without going to court and they both involve their extended families,What should the cuistody order be? Full custody to mother, to father, or joint?
[trb]QUESTION: Now add this fact, the father is gay. What should the custody order be?
[trb]QUESTION;Now add these facts, Mother had moved out of state to Indiana , back to Michigan and said she was moving back to Indiana. The Child is 3 years of age. What should the physical custody be?
[trb]QUESTION: Now add this fact the mother is gay. Now what should the custody order be and why?
Issues:
Child custody dispute;
Whether the plaintiff-father was entitled to a de novo hearing on his objections to the referee's recommendations; MCL 722.21; Harvey v. Harvey; MCR 3.215(E)(4), (F)(2), (F)(2)(a) and (c); MCL 522.507; Dumm v. Brodbeck; MCL 522.507(4);
Whether the referee and the trial court abused their discretion in granting the parties joint custody of the child where they were unable to agree on educational issues; Rivette. v. Rose-Molina; MCL 722.26a; Shulick v. Richards; Nielsen v. Nielsen;
Whether the trial court considered the factors in MCL 722.31(4);
Whether the trial court should have indicated the child's "legal residence" in its order; MCL 722.31(5); Report and recommendation (R&R)
S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ,ROBERT WAYNE BARNETT,
Plaintiff-Appellant,Attorney Mitchell Dembo ,UNPUBLISHED July 17, 2008 ,v No. 283322
Genesee Circuit Court Family Division ,AMY LYNN CLEMMER, LC No. 06-268806-DP, Judge Theile ,Defendant-Appellee. Attorney Charles Riley ,Before: Fitzgerald, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
e-Journal Number: 40003 ,
*****disclaimer*****
[posted by Terry Bankert at
http://terrybankert.blogspot.com/2008/07/child-custody-issue.html The contents of this opinion have been modified for media presentation. Review the origional document and consult an attorney before you rely on it. The unattributed CAP head lines or that attributed [trb] are added by Terry Bankert 07/24/08]
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SUMMARY OF OPINION
FATHER HAS OBJECTED TO REFEREE RECOMMENDATION HE DID NOT LIKE
Concluding the trial court's hearing in this child custody dispute on the parties' objections to the referee's R&R ...[REPORT AND RECOMMENDATION...TRB]...satisfied the requirement of a de novo hearing where the trial court reviewed the record of the referee hearing and relied on the referee's recommendations, the court held the plaintiff-father was not entitled to a separate de novo hearing.
MOTHER AND FATHER UNMARRIED ARE IN LONG TERM GAY RELATIONSHIPS
The parties are both involved with their partners in long-term same-sex relationships. Defendant and her partner approached plaintiff in 2003 about becoming the father of her child, and plaintiff eventually agreed after discussing the issue with his partner.
THE PARENTS SHARED EQUAL PARENTING TIME INFORMALLY
Since the child's birth, the parties have shared approximately equal parenting time.
DAD FILES FOR CUSTODY FEARFUL MOTHER MAY LEAVE THE STATE
The plaintiff filed a custody complaint in June 2006, alleging the defendant-mother threatened to leave the state with the child and had eight dogs living in her home. The trial court entered an ex parte order prohibiting the parties from removing the child from the county.
THE REFERE RECOMMENDED JOINT LEGAL AND PHYSICAL CUSTODY, THE LOCAL COURT AGREED
After a hearing, the referee issued a R&R, and after another hearing the trial court adopted the referee's R&R and issued an order granting the parties joint legal and physical custody of the child.
DAD APPEALS THIS JOINT CUSTODY DECISION
Plaintiff argued on appeal he was entitled to a de novo hearing after filing objections to the referee's R&R. The court concluded the trial court's hearing on the parties' objections satisfied the requirement of a de novo hearing. Under MCL 552.507(4) and MCR 3.215(E)(4), plaintiff was entitled to a de novo hearing before the trial court. However, the trial court was permitted to base its decision entirely on the record of the referee hearing as long as it gave the parties the opportunity to present live evidence.
DAD CLAIMS CERTAIN RECORDS WERE NOT ALLOWED IN
At the hearing on the parties' objections to the referee's R&R, plaintiff's only objection concerning defendant's former employer was the referee had failed to address her employment records admitted at the referee hearing, plaintiff did not ask to call the employer as a witness, or repeat other allegations he had raised at the hearing. He also "neither asked to present live evidence to the trial court nor presented documentation or affidavits to support his allegations."
LOCAL TRIAL COURT AFTER HEARING AGREED WITH REFEREE
Thus as in Dumm, the trial court properly reviewed the referee's record and relied on her recommendations in issuing its order. Affirmed. THIS MEANS THE COURT OF APPEALS AGREED WITH THE DECISION OF THE TRIAL COURT JUDGE
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On 06/22/06 Case filed and 01/16/08 Final order of judgement filed [trb]
[this article posted at
http://terrybankert.blogspot.com/2008/07/child-custody-issue.html]
THE FOLLOWING IS EXCERPTS OF THE ENTIRE OPINION FOR CLARIFICATION AND PRESENTATION OF LAW
Plaintiff and defendant are both involved with their partners in long-term same-sex
relationships. Defendant and her partner approached plaintiff in approximately 2003 about
becoming the father of her child, and plaintiff eventually agreed after discussing the situation
with his partner. The child was born on November 28, 2004.2 Since that time, the parties have
shared approximately equal parenting time.
Plaintiff filed a complaint for custody on June 22, 2006, alleging, among other things,
that defendant had threatened to leave the state with the child and that defendant had eight dogs living in her home which plaintiff believed may have caused the scratch marks he had observed on the child.
The trial court entered an ex parte order prohibiting the parties from removing the
child from Genesee County.
FOOTNOTE 1 Defendant became pregnant through a procedure similar to in vitro fertilization.
FOOTNOTE 2 There is no dispute that plaintiff is the child’s father
After a hearing spanning several months, the friend of the court referee issued a report and recommendation. After a hearing on the parties’ objections, the trial court adopted the referee’s recommendation and issued an order granting the parties joint legal and physical custody of the child.
THE PROCEDURE DEBATE ABOUT THE RIGHT TO HEARING AND WHAT TYPE OF HEARING IS SHORTENED HERE
Plaintiff first asserts that he was entitled to a de novo hearing after filing objections to the
referee’s recommendations. We conclude that the trial court’s hearing on the parties’ objections
satisfied the requirement of a de novo hearing.
...
Under the Michigan Court Rules, "A party may obtain a judicial hearing on any matter
that has been the subject of a referee hearing and that has resulted in a statement of findings and a recommended order by filing a written objection and notice of hearing within 21 days after the referee’s recommendation for order is served" on the parties’ attorneys. MCR 3.215(E)(4).
Under MCR 3.215(F)(2), "the court may conduct the judicial hearing by review of the record of
the referee hearing, but the court must allow the parties to present live evidence at the judicial
hearing." At its discretion, the court may "prohibit a party from presenting evidence on findings
of fact to which no objection was filed," or "introducing new evidence or calling new witnesses
unless there is an adequate showing that the evidence was not available at the referee hearing."
MCR 3.215(F)(2)(a), (c).
In addition, MCL 522.507 provides, in relevant part:
(4) The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon the
motion of the court. The request of a party shall be made in writing within 21
days after the recommendation of the referee is made available to that party.
(5) A hearing is de novo despite the court’s imposition of reasonable
restrictions and conditions to conserve the resources of the parties and of the court
if the following conditions are met:
(a) The parties have been given a full opportunity to present and preserve
important evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are
afforded a new opportunity to offer the same evidence to the court as was
presented to the referee and to supplement that evidence with evidence that could
not have been presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited
to, the following:
(a) A new decision based entirely on the record of a previous hearing,
including any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de
novo hearing.
(c) A new decision based in part on the record of a referee hearing
supplemented by evidence that was not introduced at a previous hearing.
...
In this case, the referee issued her report and recommendations on September 17, 2007.
On October 5, 2007, plaintiff filed, and served on defendant, written objections to the referee’s
recommendations and a request for a de novo hearing. Plaintiff was therefore entitled, under
MCL 552.507(4) and MCR 3.215(E)(4), to a de novo hearing before the circuit court.
However the court was permitted to base its decision entirely on the record of the referee hearing, as long as it gave the parties the opportunity to present live evidence. Harvey, supra at 464; MCR 3.215(F)(2); MCL 552.507(5)(b), (6).
....
In his written objections, plaintiff also claimed that defendant had quit her job in Indiana subsequent to the hearing and moved to Michigan, but planned to move to Indiana
again. However, he did not repeat this allegation at the hearing and "neither asked to present live evidence before the trial court nor presented any documentation or affidavits to support his
allegations."
...
Plaintiff next argues that the referee and the trial court abused their discretion in granting
the parties joint custody of the child because the parties are unable to agree on important
educational decisions. We disagree.
ISUE NOT PRESERVED FOR APPEAL
In order to be preserved for appellate review, an issue must generally have been raised
before and addressed by the trial court. Brown, supra at 599. Because plaintiff did not argue
before the trial court that joint custody was inappropriate because of the parties’ inability to
agree on decisions concerning the child’s education, and the trial court did not address the issue,
it is unpreserved.
...
MCL 722.26a provides, in part:
(1) In custody disputes between parents, the parents shall be advised of joint
custody. At the request of either parent, the court shall consider an award of joint
custody, and shall state on the record the reasons for granting or denying a
request. In other cases joint custody may be considered by the court. The court
shall determine whether joint custody is in the best interest of the child by
considering the following factors:
(a) The factors enumerated in section 3.3
(b) Whether the parents will be able to cooperate and generally agree concerning
important decisions affecting the welfare of the child. [Footnote added.]
In this case, the trial court adopted the referee’s report and recommendations, and the
referee did at least consider the parties’ general ability to cooperate. In its findings on best
interest factor (j) (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),
the referee noted:
The parties cooperated regarding issues pertaining to [the child] before the
plaintiff filed his petition in June of 2006. The [sic] considered themselves to be a
single family unit, although they maintained separate houses. They held
extensive family meetings regarding important matters regarding [the child] and
the plaintiff even assisted the defendant financially when she needed it.
In addition, plaintiff testified at the referee hearing that, during the first several months of
the child’s life, when she required a lot of specific care and close attention, the parties and their
partners cooperated and were always flexible if one needed to switch days.
He testified that the parties always tried to do what was best for the child. Thus, while there was testimony that indicated communication and cooperation problems between the parties, especially regarding defendant’s move to Indiana and her dogs, the record demonstrates the historical ability of the parties to cooperate in the best interests of the child. See Shulick v Richards, 273 Mich App 320, 326-327; 729 NW2d 533 (2006) (concluding that the trial court’s finding that the parties could cooperate on important decisions concerning the welfare of the children was not against the great weight of the evidence where the testimony showed that, despite periodic problems and some personal animosity, the parties were generally able to cooperate for the best interests of the children, and had recently displayed a willingness to communicate).
3 MCL 722.23
Perhaps more importantly, there is little evidence that the parties’ disagreements pertain
to important child-rearing issues. Plaintiff’s only claimed disagreement involves defendant’s
opposition to plaintiff’s plan to enroll the child in an early childhood development program at the
University of Michigan-Flint. However, defendant did not oppose enrolling the child in the
program because of a dispute about the proper way to educate the child. Rather, she seems to
have opposed it primarily because it would interfere with her parenting time.4 In fact, she looked into another early childhood development program in Indianapolis that would accommodate a 9 to 12 day rotating parenting time schedule. Thus, while the record suggests that the parties have had some problems, it does not reveal a fundamental disagreement on important child-rearing decisions.
Under the circumstances, it was not plain error for the court to grant the parties joint
custody. See Nielsen v Nielsen, 163 Mich App 430, 434; 415 NW2d 6 (1987) (holding that the
trial court properly denied the defendant’s petition for sole custody, in part because the parties’
inability to cooperate centered on disputes regarding custody times and personal animosity,
rather than "basic child-rearing issues.")
Plaintiff further argues that the trial court erred in failing to consider the factors set forth
in MCL 722.31(4), and in failing to indicate in its order the legal residence of the child. We
disagree.
Under MCL 722.31(1), where a child’s custody is governed by court order, the court
must consider the factors set forth in MCL 722.31(4) before permitting a parent to change the
legal residence of the child to a location that is more than 100 miles from the child’s legal
residence at the time of the commencement of the action in which the custody order was issued.
In this case, however, the child’s custody was not governed by court order. Rather, the parties
had followed an informal parenting time arrangement since the child’s birth. In response to
plaintiff’s request for ex parte relief, the court’s June 22, 2006, order prohibited the parties from removing the child from the state and "ordered that the parties[’] current schedule of contact with the child shall continue." The order did not purport to make a custody determination or even use the word "custody." Therefore, the trial court did not clearly err in failing to address the factors set forth in MCL 722.31(4).
Plaintiff next argues that remand is required because the order of the trial court from
which plaintiff appeals does not fulfill the requirement of MCL 722.31(5) that all custody orders
establish the child’s legal residence. MCL 722.31(5) provides:
(5) Each order determining or modifying custody or parenting time of a child
shall include a provision stating the parent’s agreement as to how a change in
either of the child’s legal residences will be handled. If such a provision is
included in the order and a child’s legal residence change is done in compliance
with that provision, this section does not apply. If the parents do not agree on
such a provision, the court shall include in the order the following provision: "A
parent whose custody or parenting time of a child is governed by this order shall
4 Defendant testified that enrolling the child in the program would take half of defendant’s
parenting time.
not change the legal residence of the child except in compliance with section 11
of the "Child Custody Act of 1970," 1970 PA 91, MCL 722.31."
The trial court’s order adopting the recommendations of the referee and granting the
parties joint custody provides, in relevant part:
IT IS FURTHER ORDER AND ADJUDGED that a parent whose custody
or parenting time of a child is governed by this order shall not change the legal
residence of the child except in compliance with section 11 of the Child Custody
Act of 1970.
Contrary to plaintiff’s argument on appeal, nothing in MCL 722.31(5) requires a custody order to contain a provision specifically establishing the legal residence of the child. In addition, MCL
722.31(1) provides that "A child whose parental custody is governed by court order has, for
purposes of this section, a legal residence with each parent." Therefore, because the child’s
custody is now governed by court order, she has a legal residence with each parent. Moreover,
in the absence of an agreement between the parties regarding how a change in either of the
child’s legal residences will be handled, the above-quoted provision of the order satisfies the
requirement of MCL 722.31(5) that each custody order include a provision regarding a change of the child’s legal residence. Therefore, the order complies with the requirements of MCL
722.31(5).
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
