Custody; Proper cause or a change in circumstances (COC); Shade v Wright; Vodvarka v Grasmeyer; Notice of a motion; Due process; Friend of the Court (FOC)

The court held that “the trial court erred by referring the case to the FOC without adequately addressing whether there was proper cause or a [COC] warranting a reexamination of legal custody or parenting time.” Further, the error was not harmless. As to plaintiff-father’s notice issue, while defendant-mother’s “counsel failed to comply with applicable court rules governing notice” of a motion, the court found that plaintiff did not show that his due-process rights were violated. As to proper cause or a COC, the court held that “the trial court failed to adequately consider, both during the motion hearing and in its subsequent order referring the underlying matter to the FOC, whether proper cause or a [COC] had arisen to justify revisiting parenting time and legal custody as established in the consent judgment of divorce.” It concluded that the “trial court further erred when it determined that the lesser legal standard iterated by this Court in Shade governed the underlying legal custody and parenting time issues.” It found that “because the contested order referred the matter to the FOC as to both legal custody and parenting time, the trial court erred when it neglected to apply the more stringent proper-cause-or-change-of-circumstances standard stated in Vodvarka to the parties’ dispute.” The court directed the trial court on remand to make the “threshold determination, using the proper standards and considering the best-interest factors, before deciding whether the case warrants referral to the FOC.” Reversed and remanded.