Monday, October 08, 2007

Changing Custody of Children

Leder v Leder 7/26/07 NO:275237
Posted here with modification of style by"
full article

In a recent case a Mother appeals as of right the trial court’s order denying her motion to change the custody of the minor children born during her marriage to defendant. On cross-appeal, defendant challenges the trial court’s determination that he had been uncooperative with plaintiff regarding legal issues related to the children and the court’s imposition of additional requirements to ensure cooperation in the order. The Court of Appeals did not disagree with the trial court.

I. Basic Facts And Procedure

The parties were divorced by consent judgment in April, 2003. Pursuant to that
judgment, defendant was awarded primary physical custody of the parties’ two minor children.
Plaintiff was awarded a significant amount of parenting time provided that plaintiff seek
psychological evaluation and treatment. The parties incorporated a prior order of the trial court,
entitled "Order That Parties Cooperate in Parenting Their Minor Children," into the judgment.
That portion of the judgment of divorce required the parties to respectfully and courteously
communicate with each other regarding issues related to the children. Following the entry of the
judgment of divorce, the parties continued to disagree regarding the care of the minor children.
Plaintiff alleged that defendant and his new wife fabricated a story that plaintiff hired a hit man
to kill them. She alleged that they invented this story to support their attempts to change the
children’s domicile to Arkansas. Defendant’s current wife, Susan Leder, obtained a personal
protection order against plaintiff based on these allegations.

The parties also continually argued regarding the amount of child support that plaintiff
should be required to pay. Apparently, plaintiff had never maintained employment. She had
previously worked at a fast food restaurant for two years, but quit shortly after marrying
defendant. Plaintiff lived with her mother and allegedly provided 20 hours of caretaking services for her a week in exchange for room and board. Plaintiff promised, but never provided, proof that her mother required such full-time care, even though she alleged that her mother suffered from rheumatoid arthritis. In any event, plaintiff refused to seek employment outside of the home. Defendant, on the other hand, made less than $500 a week as a salesman and often had to rely on his parents to provide free childcare.

Following various motions to change child support and recommendations from the FOC
to impute income to plaintiff, the parties entered a consent order in March, 2006, by which
plaintiff agreed to pay $71 each month in child support, $13 for ordinary healthcare costs, $20
for the children’s health insurance, and 28 percent of the children’s uninsured medical expenses.
Plaintiff filed a motion to change the custody of the minor children in October, 2006.

Plaintiff alleged that, despite the increase in child support, defendant had neglected the minor
children’s medical and dental needs by failing to take them to regular dental check-ups for the
prior two years and by discontinuing the children’s prescription medications without the
supervision of a doctor.

Plaintiff further alleged that defendant instructed the children’s doctors
to deny her access to the children’s medical records and told the doctors that plaintiff was
"crazy." Plaintiff claimed that defendant’s actions amounted to a change of circumstances and
required the trial court to conduct a hearing to reevaluate the best interest factors related to child custody, pursuant to MCL 722.23.

In response, defendant asserted that the older child was taken off of Strattera because his
behavior no longer warranted the prescription. Defendant asserted that he weaned the older child off the medication based on the doctor’s instructions. Defendant further asserted that both minor children had never visited a dentist until he was awarded primary physical custody. Defendant admitted that the children did not receive a dental check-up every six months, but asserted that he could not afford the costs of regular visits because he did not have dental insurance.

Defendant also admitted that he had not considered orthodontic care for the children because he
needed to save funds for such treatment. Defendant denied that he had neglected the children’s
medical needs and asserted that he sought medical care for the children when warranted.

Defendant retorted that plaintiff had failed to provide quarterly reports regarding her
psychological evaluations and alleged that plaintiff abused prescription medication.
An FOC referee conducted a hearing on plaintiff’s motion in October, 2006. The referee
recommended that plaintiff’s motion to change custody be denied. However, the referee noted
that both parties had been uncooperative regarding legal issues related to the children. The
referee recommended that defendant be ordered to supply plaintiff with a copy of the children’s
health insurance cards and recommended that defendant be ordered to schedule regular dental
check-ups and physical examinations for the children. Plaintiff objected to the entry of the
recommended order without an evidentiary hearing to reevaluate the best interest factors.
Shortly thereafter, plaintiff filed a supplement to her objection to the recommendation.

Plaintiff alleged that defendant cancelled the older child’s November, 2006, dental appointment,
had not scheduled the ordered doctor appointments, and had yet to provide her with a copy of the children’s health insurance cards. Defendant responded that plaintiff had visited the children’s dentist office in November, 2006, to retrieve copies of their records. During that visit, plaintiff acted in such a disruptive and aggressive manner that the dentist wrote a letter indicating that plaintiff was no longer welcome in the office. Defendant also provided doctor notes indicating that the older child had a physical examination and reevaluation regarding his ADHD on November 13, 2006; that the younger child had a physical examination on November 27, 2006; and that the older child had a satisfactory dental check-up on November 20, 2006.

The trial court subsequently conducted a hearing regarding plaintiff’s motion for a de
novo hearing regarding the best interest factors. At that hearing, plaintiff argued that the referee had determined that defendant’s conduct amounted to medical and dental neglect and, therefore, the referee should have found a change in circumstances that warranted a reevaluation of the best interest factors. Plaintiff conceded that defendant had arranged for medical and dental check-ups for the children, but alleged that defendant failed to notify her of the dates so that she could attend. Plaintiff alleged that the older child’s doctor recommended that he remain off of Strattera solely because defendant failed to inform the doctor of the child’s continuing attention problems at school.

The trial court specifically determined that defendant’s conduct did not amount to neglect
of the minor children’s medical and dental care. The trial court agreed with the referee that the
parties had communicated poorly regarding the children’s medical appointments. The trial court
also agreed that the poor communication did not amount to a change of circumstances requiring
a de novo hearing regarding the best interest factors. The trial court then adopted the referee’s
recommended order, which included requirements that the children receive regular medical and
dental care, that the parties cooperate in relation to those appointments, and that defendant
provide plaintiff with a copy of the children’s health insurance cards.

II. No Change In Circumstances Or Proper Cause For A Change Of Custody
First, plaintiff challenges the trial court’s failure to conduct a de novo hearing regarding
the best interest factors of MCL 722.23 based on evidence that defendant had neglected the
children’s medical and dental care.

This Court applies three standards of review in custody cases. The great weight of the
evidence standard applies to all findings of fact. A trial court’s findings regarding the existence
of an established custodial environment and regarding each custody factor should be affirmed
unless the evidence clearly preponderates in the opposite direction. An abuse of discretion
standard applies to the trial court’s discretionary rulings such as custody decisions. Questions of
law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly
chooses, interprets, or applies the law. Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). [Citations omitted.]

A trial court may modify a custody award when the moving party establishes that a
"change in circumstances" has occurred or when the party establishes proper cause for
reconsideration. MCL 722.27(1)(c); Phillips v Jordan, 241 Mich App 17, 24; 614 NW2d 183
(2000). To establish "proper cause," the moving party must present evidence of "one or more
appropriate grounds that have or could have a significant effect on the child’s life to the extent
that a reevaluation of the child’s custodial situation should be undertaken." Vodvarka, supra at
511. To establish a "change in circumstances," the moving party "must prove that, since the
entry of the last custody order, the conditions surrounding custody of the child, which have or
could have a significant effect on the child’s well-being, have materially changed." Id. at 513.

The moving party must establish something beyond "normal life changes" in order to justify the
court’s reconsideration. Id. at 513-514. "[W]hen a modification of custody would change the
established custodial environment of a child, the moving party must show by clear and
convincing evidence that it is in the child’s best interest." Phillips, supra at 25. However, the
trial court may not reconsider the best interest factors until the moving party has established
proper cause or a change in circumstances by a preponderance of the evidence. Vodvarka, supra
at 509. In determining whether a plaintiff has established proper grounds for reconsidering the
existing custody order, a trial court may use the best interest factors of MCL 722.23 as a guide.
Vodvarka, supra at 511-512. MCL 722.23(c) requires the court to consider the "capacity and
disposition of the parties involved to provide the child with . . . medical care."

In this case, plaintiff failed to show "proper cause" or a "change in circumstances" in
relation to this factor. Defendant asserted that he lacked dental insurance and, therefore, took the minor children to the dentist only once a year and postponed consideration of orthodontic
treatment. Defendant maintained the same employment prior to the divorce and, therefore,
lacked dental insurance throughout his marriage to plaintiff as well. There is no evidence that
plaintiff and defendant took the children to the dentist more frequently when they were married.

In relation to the children’s medical treatment, we agree that defendant acted
unreasonably in failing to take the older child for follow-up visits after weaning him off of
medication for his attention deficit/hyperactivity disorder. Plaintiff testified that the child’s
condition was so severe that he had been institutionalized in the past. However, there is no
evidence that plaintiff would be more capable of providing medical care. Plaintiff was
unemployed by choice and lacked medical insurance. Defendant repeatedly asked the trial court
and FOC to increase the amount of child support to allow him to pay for the children’s medical
expenses. In response, plaintiff pleaded poverty. Furthermore, the children are 12 and 14 years
old and, therefore, are old enough to tell their parents when they are not well. There is no record indication that defendant neglected to take the children to the doctor when necessary for urgent care. There is also no indication that the children had not received all recommended
vaccinations and medical tests. Accordingly, we agree with the trial court that plaintiff failed to
show a change in circumstances or proper cause for a change of custody. We also agree with the
trial court’s determination that defendant had not neglected the children’s medical and dental

III. Defendant Failed To Cooperate With Plaintiff

On cross appeal, defendant challenges the trial court’s imposition of additional
requirements despite the determination that defendant did not neglected the children’s medical
and dental needs.
When reviewing a judgment of the trial court sitting without a jury, we review a trial
court’s findings of fact for clear error and conclusions of law de novo. In reviewing the trial
court’s findings of fact, we must give deference to the trial court’s determinations of witness
credibility. MCR 2.613(C); GlenLake-Crystal River Watershed Riparians v GlenLake Ass'n, 264
Mich App 523, 531; 695 NW2d 508 (2004). "A finding is clearly erroneous where, although
there is evidence to support the finding, the reviewing court is left with the definite and firm
conviction that a mistake has been made." Ambs v Kalamazoo Co Rd Comm, 255 Mich App
637, 652; 662 NW2d 424 (2003).

We first note that we agree with plaintiff that defendant has improperly attempted to
expand the record on appeal by presenting a psychological evaluation report that was not
considered by the trial court. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649
NW2d 783 (2002). However, contrary to plaintiff’s contention, defendant has not improperly
expanded the record on appeal by presenting the transcript of the February 27, 2007, child
protective proceeding, because this Court entered an order that allowed defendant to expand the record on appeal in this regard. Leder v Leder, unpublished order of the Court of Appeals,
entered March 23, 2007 (Docket No. 275237).

In any event, we find that the trial court’s factual determination that defendant had been
uncooperative with plaintiff regarding the children’s medical and dental care comports with the
evidence. The trial court determined that defendant did not neglect the children’s medical and
dental needs. However, defendant admitted that he did not inform plaintiff of the younger
child’s dentist appointments. Defendant alleged that he notified plaintiff in advance of the older
child’s doctor appointments during which he was weaned off of medication and asserted that
plaintiff failed to attend those appointments. Defendant conceded that he should take the
children to the pediatrician for an annual physical. Given defendant’s admissions and
concessions, the trial court’s factual determination that defendant had violated the consent
judgment of divorce by failing to cooperate with plaintiff was not clearly erroneous.