Custody; Modifying children’s established custodial environment (ECE) in a temporary order without conducting an evidentiary hearing; MCL 722.27(1)(c); Daly v Ward; Reassignment to a different judge

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 72519 in the 3/18/20 edition), the court vacated the trial court’s judgment and remanded the case to that court for further proceedings with instructions to assign it to a different judge. It held that the trial court erred in modifying the children’s ECE in a temporary order without conducting an evidentiary hearing. That order suspended defendant-mother’s “parenting time, precluded her from initiating contact with the children, and continued granting” plaintiff-father full-time parenting time. In doing so, it had the effect of modifying the children’s ECE and thus, MCL 722.27(1)(c) applied, requiring the trial court to first conduct an evidentiary hearing. The court noted that it was “impossible to effectively remedy the error in entering” the order given that “15 months passed before an order properly based on an evidentiary hearing was issued. The trial court’s . . . final opinion and order relied on events that occurred in a custodial environment that was erroneously altered in” 11/17. Thus, the court could not find the error “harmless. On remand, the trial court shall conduct a hearing within 14 days of the date of this order to determine how the case should proceed.” It also instructed “the trial court to expedite its consideration and resolution of this case.”

Concurring, Justice Clement noted that, “rather than falling under the allowance for ex parte orders as provided in MCL 722.27a(12) to (14)” relating to parenting time, the order fell within MCL 722.27(c)(1)’s requirement, and “the trial court ignored this procedural requirement.” She also concurred in the decision to reassign the case.

Justice Viviano, concurring in part and dissenting in part, agreed with much of the court’s order, but dissented from the decision to reassign the case. He also found that it failed to give the trial court “any real guidance on” what to do next, and stated that he would follow the court’s “precedent and remand for reevaluation while the status quo is maintained.”

Dissenting, Justice Zahra would deny defendant’s application for leave to appeal, concluding that her failure to appeal the 11/17 “order and her decision to instead request several adjournments of the evidentiary hearing renders her claim presented in this appeal either waived or harmless.”