Michigan Divorce: When to Interview the Child in Custody or Parenting Time Cases

I am a divorce lawyer with my office in Auburn Hills, Oakland County, Michigan.  My office is easily accessible to Troy, Rochester, Clarkston, Holly, Oxford and Lake Orion.  When determining child custody there are several factors the court must consider, these are referred to as the “best interest factors”.  If one party is seeking a change in an established custodial environment, then that is considered a change of custody and the court must consider each of the factors.  If a party is seeking to modify parenting time but the court determines that the modification will not change an established custodial environment, then the court must consider only those factors which it deems relevant to the particular case and issues.

Previously the Michigan Court of Appeals has held that the judge must interview a child regarding his or her preference (so long as the child is capable of providing a preference, given the child’s age or other circumstances) in cases of a change of custody.  This begs the question of whether the court must conduct the interview in a case where there is only a modification of parenting time that does not alter an existing established custodial environment. 

The Issue

Must the court interview a child regarding his or her preference in a case where one parent is seeking to modify parenting time but the modification will not alter an established custodial environment? 

The Answer

According to the case of Pearce f/k/a Valente v Valente, COA 318819, March 24, 2015 (Unpublished) the court does not have a duty to interview the child where the request will only modify parenting time but not change a custodial environment.  In that case the parties divorced in 2006 and exercised different parenting time schedules from that time until 2012.  The arrangements ranged from slightly less than 155 overnights for the father to 182 overnights for the father. 

The mother filed a motion to reduce the child’s parenting time with the father for a variety of reasons.  Among these alleged reasons were the following: the father did not provide sufficient supervision so that the child’s hygiene and grades suffered while in his care, the father threatened one of the child’s teacher’s, he picketed adjacent to the school with signs questioning the teacher’s decision making, he carried a gun while picketing, he requested that other parents sign a petition (all of this led to the child being alienated from her friends).  When the mother sought counseling for the child, the father objected to the proposed treatment decisions and refused to give the child her medication.  The child’s psychologists testified that the child’s anxiety and tension possibly stemmed from the disagreements between the parents and was certainly exacerbated by it.

The court found that due to the shared parenting time between the homes and changes in the parenting time schedules that there was no existing established custodial environment with the father.  It also determined that the child’s diagnosis regarding her anxiety, the disagreement over the treatment and the anxiety itself constituted a change in circumstances allowing the court to revisit and modify parenting time.  Therefore, it could apply the less stringent standards and it did not have to consider every factor.

It found that the factor regarding capacity to give the child love, affection and guidance favored the mother.  It appears that the court found that the father placed more emphasis on recreation activities than education.  Further, that the child is still embarrassed by the father’s actions and teased about his picketing the teacher and threatening to shoot people.  It found in favor of the mother regarding the factor pertaining to medical care because the father refused to listen the concerns and recommendations of the child’s medical and mental health professionals.  The court also found other factors in favor of the mother.

The court did not, however, interview the child regarding her preference.  In this case, the parties apparently asked the court not to interview the child and the court did not want to interview the child and cause her further anxiety.  The Michigan Court of Appeals affirmed the divorce court’s decision to not interview the child despite its previous holdings that failure to interview the child (even if the parties stipulate that the court should not interview the child) was reversible error in a custody decision.

Summation

It appears that if a party is seeking to modify a parenting time schedule but not alter custody, then the court will apply a lower burden of proof with regards to the necessary change of circumstances to revisit the issue as well as a lower burden to actually modify the parenting time.  The court also does not have to consider each and every “best interest factor” but only those it determines relevant.  Finally, according to Valente, the court does not have to interview the child regarding his or her preference in post-divorce cases where a party is seeking only to modify parenting time but not custody.