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Michigan Family Law Blog

Monday, February 11, 2019

How Could The Divorce Court Fail to Change Custody In This Case?

How Could The Divorce Court Fail to Consider A Change Of Custody In This Case?

The issue of custody is one of the most difficult that a court must handle in divorce cases.  The initial decision to grant custody to one parent, the other parent or to both parents is based upon the child's "best interests".  The "best interests" of the child is actually a set of factors listed in Michigan statutes that have been enacted by the legislature which the court must balance when making this determination.  Once the court has decided the issues of custody, it (as well as parenting time and child support) can be modified until the children reach the age of eighteen (18).  In order to modify custody however, a person has to prove to the court's satisfaction that there has been a significant change in circumstances that seriously effects the child's life before the court will even consider modification.  The key is proving this to the court's satisfaction because it can be mind boggling sometimes what a family law judge may find as insufficient to revisit custody.

A good example is the recent case of Royds v. Royds, a case out of Iron Mountain, Michigan.  In that case, the mother, who lives in Texas, filed a motion to modify the custodial arrangement from joint physical custody to sole physical custody with her.  The father admitted that since the last custody decision he quit his job and moved with the children to Wisconsin where he took a job as a lumber jack, that he took the children with him, that they lived in a tent for the first four or five days, that he left 12-year-old ER to care for her younger siblings while he worked during the day, that he allowed the children to use a motorboat absent his or any adult’s presence, and that he taught ER to drive and allowed her to do so on a private logging road. He further testified that he and the children then moved into a cabin in the area, where he again relied on ER to watch her siblings while he worked.

ER testified that their father would call to check on them periodically during the day, but he did not return for lunch. If ER could not get a fire going, she and her siblings would eat Beefaroni out of the can or cold hot dogs. ER testified that during the day she and eight-year-old MR would swim in the lake and catch frogs, occasionally joined by JR, who stayed at a friend’s house a few days a week.  ER explained that she used a microwave when they moved into the cabin. ER further testified that she gave JR his medication until their father started doing it; however, he often forgot to give JR his medicine. ER indicated that there were no showers at the campsite and that she developed a skin infection “on her private area,” which their father essentially did not address. ER also complained about stomach pain that she was experiencing, and when she told defendant that she needed Mira LAX, he failed to get it for her. ER believed that MR was having constipation issues. Subsequently when the mother took the children to a doctor, the doctor advised that ER’s rash was caused by a hygiene problem and that MR had constipation.

Despite hearing all of this, the trial judge refused to find that there was a change of circumstances or good cause to revisit custody.  Fortunately, on appeal the Michigan Court of Appeals found that the mother had "certainly" shown a change of circumstances to revisit custody and that the trial court "failed to adequately weigh and consider the living situation and events that transpired in Wisconsin."  The court of appeals reversed the trial court. 

It is hard to understand how a judge could hear this evidence and decide that it was insufficient to justify even revisiting the issue.  Divorce and family law are extremely complicated areas of the law and it is essential to have a good family law attorney.  One assumes that if she had been represented by counsel, the court would have given her case more serious consideration.  If you have any questions regarding divorce, separation or custody issues, please contact my assistant, Cathy, at (248) 608-4123 to schedule an appointment or contact us through the web site.

 


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