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A Better Partnership
September 21, 2015

COA vacates custody order for referee’s violation of procedural and substantive requirements

In McConchie v. Voight, No. 326651, the Michigan Court of Appeals held that a referee violated procedural and substantive due process requirements by improperly issuing an order that changed primary custody from the mother to the father.
 
The parties lived together and had a child in 2009. It is unclear when the parties discontinued living together, but on April 29, 2011, the parties agreed to share joint legal custody and give the mother sole physical custody with “reasonable and liberal parenting time as the parties agree.” On September 18, 2013, the father filed a motion to change custody, ultimately resulting in the father having parenting time alternate weekends and one midweek evening, in addition to providing the mother with child support payments of $303 a month.
 
On April 8, 2014, the father filed another motion to change custody. At the hearing the referee found that the child’s established custodial environment was with the mother and that there was neither proper cause nor a significant change in circumstances to justify a change in the child’s custodial environment. The father’s motion was denied and both parties were ordered to set a hearing to discuss parenting time. During that hearing, on March 4, 2015, the referee entered an order immediately transferring primary physical custody to the father and the mother appealed. 
 
The Court of Appeals determined the referee violated the mother’s right to procedural due process, by among other things, failing to allow the mother to call her own witnesses. Additionally, the court held that the referee’s failure to establish proper cause, determine the child’s established custodial environment, and identify the best interest factors prior to ordering the change in custody violated the mother’s substantive due process rights. Furthermore, the court noted, instead of issuing a recommendation and proposed order, the referee stamped the judge’s name on the order, giving it immediate effect and depriving the mother the opportunity to object prior to the order being enforceable.
 
The Court of Appeals vacated the custody order, requiring the child be returned to the primary custody of the mother and allowing the father an opportunity to file a proper motion for change of custody.
 
Judge Sawyer dissented, reasoning that the better and more expeditious remedy would be to remand the matter to the trial court and direct the trial court to conduct an evidentiary hearing to reach a final disposition, promptly followed by an order reaching a final resolution.

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