Sometimes a trial court makes a good decision without following the law and when they do, it is grounds for appeal. Such was the case in an August 24, 2023, Opinion by the Michigan Court of Appeals in the case of Barretta vs. Zhitkov.
In the Barretta case, after entry of the parties Judgment of Divorce, the parties continuously alleged the other engaged in wrongful conduct. The severity of the allegations escalated over time. The impact of these allegations was so severe, the minor child began experiencing mental health issues and was admitted to a psychiatric hospital. After several hearings it was recommended that mother have supervised parenting time. When evidence was presented that the minor child’s mental health improved when not visiting Mother, in an effort to protect the minor child, the Court changed custody. However, the trial court changed custody without following following the law (3 steps to modify custody) and the Michigan Court of Appeals reversed the decision, sending the case back to the trial Court to follow the law.
Custody Modification in three steps.
Michigan law requires a court to follow 3 steps when modifying custody. In this article, we summarize the steps (for a detailed look at the 3 steps to modify custody, follow this link.)
The first child custody modification step.
The first step is a Vodvarka inquiry, named after the seminal case on the topic. Vodvarka requires the party requesting a modification of custody to establish proper cause or change of circumstances since the entry of the last order prior to reviewing a child custody or parenting time determination. Proper cause or change of circumstances is a threshold question which must be determined before proceeding further. It acts as a safety gate. The requirement to show proper cause or change of circumstances (“since the entry of the last order“), prevents a party from filing multiple motions without new evidence.
The second child custody modification step.
The second step in custody modification is to determine the appropriate burden of proof to apply, preponderance of the evidence (which requires evidence that the claim is more likely than not) or Clear and convincing evidence (which requires evidence that the claim is very highly probable). The appropriate burden of proof is determined by determining if there is an Established custodial environment with one parent. If there is, the clear and convincing evidence (higher burden of proof) is required, if not, the lower, preponderance of the evidence standard applies.
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
MCL 722.27(a)-(l).
In what appears to be a rush to judgment to protect a minor child’s mental health, the trial court in the Barretta case, changed custody without following the three stepsto modify child custody. The Court of Appeals correctly determined the trial court was in error for doing so, regardless of its good intentions.
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