I am a divorce lawyer. My office is located in the heart of Northern Oakland County accessible to Rochester, Bloomfield and Troy as well as Clarkston, Lake Orion and Holly. Almost all of the cases I handle involve the division of property and debts. The more difficult cases to resolve are those that involve alimony or custody disputes. In cases where the custody issue must be litigated, the court must consider the “best interest factors”. One of those factors that must be considered by statute is the child's reasonable preference regarding which parent should have custody. This requires the court to interview the child. Many parents in this situation are concerned that the other parent is coaching the child for the interview, however this can be considered parental alienation and cause the offending parent to lose custody.
Will the court consider the child's preference regarding which parent should have custody if the court finds that one party has attempted to coach the child or alienate the child from the other parent?
According to Maier v Maier, COA 322109 June 25, 2015 (For Publication), the answer is no. If the divorce court suspects that this is occurring, then the judge has the right to disregard the child's expressed custodial preference or forgo the child interview entirely.
In the Maier case, the parents separated a year after the child was born but did not divorce until approximately six (6) years later. After the divorce, there were multiple show cause hearings filed (a hearing where one party claims the other has violated a court order and requests that the court holds the violating party in contempt of court) and several Child Protective Services (CPS) investigations instigated by the mother against the father. CPS found each report unsubstantiated. Repeated unsubstantiated CPS reports initiated by the custodial parent seem to be a red flag in many of these cases where parental alienation appears to be a factor. Courts often interpret such reports, particularly where allegations of a sexual nature are included, as severely detrimental attempts to alienate the child from the noncustodial parent.
In 2013, the father filed a show cause and a petition to change custody, the court eventually ordered that the father have sole legal and physical custody with the mother to have supervised parenting time until a psychological evaluation recommends otherwise. The mother appealed the case on a variety of bases, one of which was that the court failed to interview the child regarding his “reasonable preference” as required by the ‘best interest factors.”
The appellate court stated that the interview must occur in all but the most extraordinary circumstances even if the parents agree to waive the interview as part of the litigation. A child over the age of six (6) is presumed to be capable of expressing a preference and the child's preference is very important, in some cases it might be a determining factor in the court's decision. However it must be an expression of preference by an intelligent, unbiased child which was not true in this case. As the appellate court eloquently stated “Just as adults may lack the capacity to give competent testimony based upon infirmity, disability or other circumstances, so may a child's presumed capacity be compromised by circumstances peculiar to that child's life.”
The trial court found that based upon the four unsubstantiated CPS complaints, the testimony from therapists that the minor child was being coached, the testimony that the mother voiced concerns and criticisms about the father in the presence of the child and a traumatic exchange where the child was led to believe that he was kidnapped, the child was unable to form a reasonable preference. The Michigan Court of Appeals affirmed this decision in a well-written opinion issued for publication which means that it is now binding precedent.
There is no question that the divorce court judge did the right thing in this case. Coaching a child is an inherently indefensible manner in which to try to gain an advantage in a custody case. When a court discovers such actions, it weighs strongly against the party that has engaged in the conduct