Beard v. Stankiewicz - Decided by the Michigan Court of Appeals (Unpublished) PDF Print E-mail

Issues: Custody; Motion to change custody; The Child Custody Act (CCA)(MCL 722.21et seq.); "Proper cause" or a "change in circumstances"; Shann v. ShannMitchell v. Mitchell; Vodvarka v. Grasmeyer; MCR 3.210(C)(8); Failure to determine whether there was an "established custodial environment" (ECE); MCL 722.27(c); Kessler v. Kessler;Fletcher v. Fletcher; Change of legal custody; Notice and an opportunity to be heard;Mann v. Mann; Statutory best interest factors (d)-(f); Eldred v. Ziny; Corporan v. Henton; Friend of the Court (FOC); Post-traumatic stress disorder (PTSD)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Beard v. Stankiewicz

e-Journal Number: 57680

Judge(s): Per Curiam – Murray, O’Connell, and Borrello

 

The court held that the trial court did not clearly err in conducting a hearing and determining that there was proper cause or a change of circumstances, and its findings as to best interest factors (d)-(f) were not against the great weight of the evidence. However, it clearly erred in failing to determine whether an established custodial environment (ECE) existed before applying the best interest factors, in failing to articulate and apply the proper burden of proof, and in changing the legal custody of one of the parties' children without notice.  The trial court granted the plaintiff-father's motion to change custody of the parties' teenage daughter (S). The order awarded plaintiff physical custody of S, and awarded the parties full joint legal custody of S and the parties' son, C. The defendant-mother previously had physical custody of S and the parties shared legal custody of the children only as to educational and medical decisions. There were disputed issues of fact in plaintiff's motion, and after he filed it, the Friend of the Court (FOC) issued a report indicating that a psychological evaluation of S "could constitute 'clear and convincing' evidence to support plaintiff's motion." Pursuant to court order, a licensed therapist (H) evaluated S. Plaintiff offered H's testimony in support of his motion. Defendant disputed H's testimony. Thus, the trial court had discretion to hold a hearing to determine whether H's "testimony and other offers of proof constituted proper cause or a change in circumstances." Further, its finding that plaintiff established proper cause or a change in circumstances was not against the great weight of the evidence. H testified that S appeared "very scared" of defendant and testified that continued contact between defendant and S would be "extremely detrimental" to S's psychological development and well-being. H diagnosed S with post traumatic stress disorder (PTSD). Also, S was performing very poorly at school and stated that defendant's boyfriend physically hit her. However, by failing to first make a finding as to whether there was an ECE before applying the best interest factors, the trial court clearly erred as a matter of law, and the error was not harmless. Thus, the court reversed the portion of the trial court's order changing physical and legal custody of S. It also reversed the portion of the trial court's order awarding the parties full joint custody of C, noting that plaintiff's motion did not seek to change the legal custody arrangement as to C, and defendant was not given notice and an opportunity to be heard. Affirmed in part, reversed in part, and remanded for further proceedings.

 

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