Opinion
368178
11-09-2023
Laurie C Dubsky v. Quentin M Dubsky
LC No. 2023-521580-DM
Mark J. Cavanagh Presiding Judge Deborah A. Servitto Elizabeth L. Gleicher Judges.
ORDER
Mark J. Cavanagh Presiding Judge.
The motion for immediate consideration is GRANTED.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court VACATES the September 22, 2023 order of the Oakland County Circuit Court and REMANDS to the trial court for reconsideration of defendant's custody and parenting-time motion in accordance with the Child Custody Act, MCL 722.21, et seq. The trial court committed clear legal error on a major issue by entering an interim custody and parenting-time order without making a determination whether the children have an established custodial environment with one or both parents. See Kessler v Kessler, 295 Mich.App. 54, 61; 811 N.W.2d 39 (2011). Contrary to defendant's arguments, this error was not harmless, and remand for a finding by the trial court is warranted because the facts are not undisputed and there is no evidentiary record that would allow this Court to make such a determination on appeal. See Brausch v Brausch, 283 Mich.App. 339, 356-357 n 7; 770 N.W.2d 77 (2009). On remand, the trial court shall make this factual determination in the first instance, on the basis of admissible evidence. See generally Mann v Mann, 190 Mich.App. 526, 532; 476 N.W.2d 439 (1991). The parties shall be permitted to call witnesses of their choosing, including family members. Once this threshold factual determination is made, the trial court should then proceed "carefully and fully" in accordance with the Child Custody Act, bearing in mind that the children's established custodial environment may not be altered, even on a temporary basis, without an evidentiary hearing. See Daly v Ward, 501 Mich. 897, 898 (2017).
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.