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A Better Partnership
January 30, 2017

COA rules trial court must make initial child custody finding before referring to friend of the court for investigation

In Bowling v. McCarrick, No. 331583, the Court of Appeals held the trial court erred when it referred a child-custody matter to the Friend of the Court for conciliation before it had made a determination regarding whether the party requesting a change in custody had met his burden of proving either proper cause or change of circumstances.  The trial court improperly relied upon the Friend of the Court’s report in determining whether there was proper cause.  Because Michigan statute requires the court to make this determination before ordering the Friend of the Court to investigate, the Court of Appeals vacated the trial court order and remanded to the trial court for further proceedings.
 
This case arose after the trial court ordered a change of physical custody of Plaintiff’s son to his father.  MCL 722.27(1)(c) provides that the trial court may “modify or amend” a previous child custody judgment or order “for proper cause  shown or because of change of circumstances” if doing so is in the best interests of the child. Here, after the Defendant moved to change custody, the trial court immediately referred his  motion to the Ingham County Friend of the court for a “conciliation conference.”
 
The parties attended the conciliation conference but were unable to reach an agreement. The conciliator issued a report and recommendation opining that there was proper cause or change of circumstances such that a change in physical custody could be considered. The report went on to recommend that primary physical custody of the child be changed from Plaintiff to Defendant, and set forth various reasons for that conclusion in the context of the statutory best interests factors. Plaintiff, timely filed an objection to the conciliator’s recommendation, and a hearing was held before the trial court.  The court agreed with the Friend of the Court and ordered a change of custody.  Plaintiff appealed.
 
The Court of Appeals held that a conciliator’s report may not be considered with respect to the proper cause question. MCL 552.505(1)(g) authorizes the Friend of the Court, on order from the trial court, “[t]o investigate all relevant facts, and to make a written report and recommendation to the parties and to the court, regarding child custody or parenting time, or both, if ordered to do so by the court.” But, the statute also states that “[i]f custody has been established by court order, the court shall order an investigation only if the court first finds that proper cause has been shown or that there has been a change of circumstances.” Id.
 
Here, the trial court referred the matter before the court had made that determination. Given this error, the Court of Appeals vacated the trial court’s orders finding proper cause and changing custody and remanded the decision back to the trial court for further proceedings. 

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