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Frivolous Motions Are a Bad Idea in Divorce and Custody Cases

I am a family law attorney, also known as a divorce lawyer, in the Rochester Hills area of Oakland County Michigan. One of the most difficult aspects of my job is advising people that they are not acting in an appropriate manner and that unless they change how the behavior, he or she faces losing custody or limiting visitation with the children.  Further, that if the client continues to seek legal redress of their issues in court, the client may face paying for the other side's attorney fees and costs.

 The Issue    

What will the court do if a parent continues to try and reduce the other parent's time with the children by gathering “evidence” and filing motions when there really is no basis to reduce the parenting time or change custody? 

 The Answer

The divorce court trial judge may limit the parenting time of the person gathering “evidence” and filing motions and also order that person to pay for the other side's legal costs and fees in defending against these attacks.

In the matter of O'Farrell v O'Farrell, Michigan Court of Appeals unpublished opinion, November 20, 2012, the court dealt with the mother's motions to restrict parenting time of the father.  The court found that the mother's motions were frivolous, decreased her parenting time and ordered her to pay $20,912 of the father's attorney fees and costs in defending against the motions.

Mrs. O'Farrell, who had primary physical custody, alleged that Mr. O'Farrell did not enter counseling as ordered by the court, would not communicate with her concerning issues regarding the child, was disrespectful to her, he was engaging in inappropriate physical contact with the child  and that he was negatively impacting the child's life.  Mrs. O'Farrell also alleged that the child displayed withdrawal, self-inflicted physical harm, distress, fear of men and Mr. O'Farrell, inappropriate use of toys, aggression, sleep disruptions and inability to cope with normal situations.

The court ordered a guardian ad litem to represent the child and held several evidentiary hearings to address these issues.  It appeared from the evidence that the mother had continued to attempt to limit the father's visitation and interrupt his quality time with their daughter.  She also tried to limit visitations by taking the child to two different pediatricians who both quit because they were being used for gathering evidence.  The mother also took the daughter for emergency room visits both before and after visits in an attempt to father evidence.  It appeared that there were 120 events charged to Blue Cross and Blue Shield.

The mother also made eight referrals to D.H.S. all of which were unsubstantiated and the last referral came the same day the court cautioned the mother that the conduct had to change.  The severity of the D.H.S. allegations continued to increase which the court found indicated the mother's continued unwillingness to encourage a close relationship between the father and the daughter and a commitment to interfere with this relationship.

The court found that the mother was continuing to act in an irrational manner and that her testimony was not believable.  She continued to make claims to doctors alleging that the father had sexually abused the child when she knew (as a person with medical training) that those doctors were mandatory reporters of suspected child abuse which made them her agents in making additional reports to D.H.S.  She took videos of the child which she claimed demonstrated that the father sexually abused the child but really did not show anything of the kind.  The child did not exhibit separation or anxiety or detachment and there was absolutely no evidence of sexual abuse.

The court stated that it was just shy of finding that it would be in the best interest of the child to change custody to the father given the above facts.  The court then expanded the father's parenting time which consequently limited the mother's time with child.  Finally, the court found that the only reasons the mother filed her motions were to harass and embarrass the father given that the allegations she made were not factual.  This is the definition of a frivolous action and the court then ordered her to pay for the father's legal fees and costs in having to defend against her actions.


It is often hard for a parent after a divorce to distinguish between their own desire to hurt the other parent and their concern for their child's welfare.  There can be a tendency to believe that the other parent is really a bad person and therefore it would be better for their child not to have contact with the other person.  There is also some tendency to believe that the other person is not competent to parent the children on his or her own. 

In some extreme cases, like the one examined in this article, the parent so firmly believes this to be true, that her or she either knowingly or unwittingly begins to manufacture evidence that he or she believes supports his or her view of the situation.  It is very difficult as an attorney to counsel a client that is in this situation.  I have advised a parent that he or she has to be careful because if he or she continues to act in such a manner the plan could backfire as it did in this case.  This is particularly difficult as people in this situation often cannot understand why his or her own actions are unacceptable because he or she truly believes that the other parent is the party that has acted against the child's best interests.

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