Opinion
SC 166629 COA 368761
05-03-2024
CAMILLE SANCHEZ, f/k/a CAMILLE HEALEY, Plaintiff-Appellant, v. KENYON HEALEY, Defendant-Appellee.
Wayne CC: 14-105043-DM
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the December 19, 2023 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
CLEMENT, C.J. (concurring).
I agree with the Court's denial order in this case. I also share Justice WELCH'S concern regarding the slow pace at which this case has proceeded. I write separately, however, to reiterate my separate concern that ex parte orders left in place too long will change a child's established custodial environment (ECE). This practice acts as an end run around the requirements that the Child Custody Act (CCA), MCL 722.21 et seq., imposes upon a court that intends to change a child's ECE.
Plaintiff-mother and defendant-father shared custody of their children, with plaintiff having slightly more than half of overnights with the children. However, in response to defendant's allegations of abuse, the court entered an emergency ex parte order on August 25, 2023, which wholly suspended plaintiff's parenting time and prohibited her from contacting the children. On November 8, the court denied plaintiff's request to amend the ex parte order. Then, on February 22, 2024, the court entered a temporary order that superseded the ex parte order. However, that temporary order allows the ex parte order to continue as a temporary order-plaintiff's parenting time remains suspended pending a hearing in June, and plaintiff still may not have any contact with the children.
The CCA provides the definition of an ECE:
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(1)(c).]MCL 722.27(1)(c) sets a high bar to change a child's ECE: "The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." Additionally, "[a]n evidentiary hearing is mandated before custody can be modified, even on a temporary basis." Grew v Knox, 265 Mich.App. 333, 336 (2005). In contrast to an order that changes the ECE, the requirements to issue an ex parte order are comparatively lax, requiring no evidentiary hearing and no heightened standard of proof. See MCL 722.27a(12) through (14).0F
Those subsections set out the requirements for a court issuing an ex parte order. They read:
(12) Prior to entry of a temporary order, a parent may seek an ex parte interim order concerning parenting time. If the court enters an ex parte interim order concerning parenting time, the party on whose motion the ex parte interim order is entered shall have a true copy of the order served on the friend of the court and the opposing party.
(13) If the opposing party objects to the ex parte interim order, he or she shall file with the clerk of the court within 14 days after receiving notice of the order a written objection to, or a motion to modify or rescind, the ex parte interim order. The opposing party shall have a true copy of the written objection or motion served on the friend of the court and the party who obtained the ex parte interim order.
(14) If the opposing party files a written objection to the ex parte interim order, the friend of the court shall attempt to resolve the dispute within 14 days after receiving it. If the matter cannot be resolved, the friend of the court shall provide the opposing party with a form motion and order with written instructions for their use in modifying or rescinding the ex parte order without assistance of counsel. If the opposing party wishes to proceed without assistance of counsel, the friend of the court shall schedule a hearing with the court that shall be held within 21 days after the filing of the motion. If the opposing party files a motion to modify or rescind the ex parte interim order and requests a hearing, the court shall resolve the dispute within 28 days after the hearing is requested.
Because stability in regard to a child's ECE is so important, it is imperative that courts follow the heightened statutory requirements set out in MCL 722.27(1)(c) before changing a child's ECE. As I explained in O'Brien v D'Annunzio, 507 Mich. 976, 978 (2021) (CLEMENT, J., concurring):
[I]t is important that lower courts follow the correct procedure when modifying a child's established custodial environment. As the statutory scheme reflects, doing so is serious business. This Court has explained that the statute exemplifies a preference for stability in children's lives: "In adopting [MCL 722.27(1)(c)], the Legislature intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an 'established custodial environment,' except in the most compelling cases." Baker v Baker, 411 Mich. 567, 576-577 (1981). Therefore, we have warned trial courts how important it is to follow the requirements of MCL 722.27(1)(c). See Daly v Ward, 501 Mich. 897, 898 (2017).
A serious problem arises when a court enters an ex parte order that changes a child's custodial environment but does not meet the requirements of MCL 722.27(1)(c), and then allows that order to remain in place so long that a new custodial environment becomes established. An ex parte order in place long enough provides an "appreciable time" in which the child "naturally looks to [a different] custodian in [a different] environment for guidance, discipline, the necessities of life, and parental comfort," MCL 722.27(1)(c), and thus can change a child's ECE. By changing a child's ECE with an ex parte order that is not subject to the heightened requirements that apply to an order explicitly changing a child's ECE, lower courts skirt the requirements of MCL 722.27(c) and fail to approach the decision to change a child's ECE with the careful consideration that such an important decision demands.
Here, the ex parte order was in place from August until February. It changed the shared custody arrangement significantly: while plaintiff and defendant had had shared custody with plaintiff seeing the children approximately half of the time, the ex parte order completely prohibited plaintiff from seeing or contacting the children. Looking only to defendant for guidance, discipline, the necessities of life, and parental comfort for approximately six months likely has changed the children's ECE. Again, this was done without meeting the statutory requirements set out by MCL 722.27(1)(c). While the allegations raised by defendant were serious and the ex parte order may well have been justified, it is concerning how long that order remained in effect. Now the February temporary order, which allows the ex parte order to continue and still prohibits the children from having any contact with plaintiff, is scheduled to remain in place until at least June. The children will have had no contact with plaintiff for approximately 10 months. Their ECE will have changed without the court having made the required finding that "there is . . . clear and convincing evidence that [changing the ECE] is in the best interest of the child." MCL 722.27(1)(c).
This error of impermissibly changing the children's ECE is so grave in part because it is essentially impossible to remedy, as the changed ECE has become the current ECE, whether the court rightly or wrongly ordered it. Hayes v Hayes, 209 Mich.App. 385, 388-389 (1995) ("[A]n error by the court in granting defendant temporary custody of the children pending the permanent custody trial [does] not affect the trial court's analysis of whether an established custodial environment existed."). We warned about the inability to remedy such errors in Daly, 501 Mich. at 898, and noted that it was all the more reason to ensure consistent compliance with the statute: "[T]o restate, it is critical that trial courts, in the first instance, carefully and fully comply with the requirements of MCL 722.27(1)(c) before entering an order that alters a child's established custodial environment. Any error in this regard may have lasting consequences yet effectively be irreversible." That statement remains true. Despite our admonishments regarding the importance of changing a child's ECE in compliance with the CCA, this problem, which we have squarely addressed in multiple past cases, persists.
I concur in the Court's denial order because I am not convinced relief should be granted in this case, particularly when plaintiff appeals not the February order but only the prior November order, which denied her request to amend the August ex parte order. Nonetheless, I am very troubled by the lower court allowing its ex parte order to remain in place so long that it has likely changed the children's ECE without following the procedure set forth in MCL 722.27(1)(c).
WELCH, J. (concurring).
I agree with our decision to deny leave in this matter because the November 8, 2023 order appealed by plaintiff has been superseded by subsequent proceedings and orders entered by the family court. I write separately because I am very concerned about the slow pace with which this post-divorce matter proceeded in the family court.
Plaintiff and defendant have shared custody of their two minor daughters since their divorce in 2014. In August 2023, defendant sought and received an emergency ex parte order suspending plaintiff's parenting time and all contact with the parties' children based on what appeared to be serious allegations concerning plaintiff's interactions with the children and an ongoing child protective services (CPS) investigation. Plaintiff objected to the order, and an evidentiary hearing was scheduled for October 19, 2023. This was slightly longer than the usual 21-day time limit for scheduling such hearings after entering an ex parte order, MCL 722.27a(14); MCR 3.207(B)(6)(a), but the Court of Appeals has recognized that emergency situations can require some degree of flexibility, see Mann v Mann, 190 Mich.App. 526, 533 (1991).
My concern is that everything after entry of the ex parte order has moved painfully slowly. Eight months have passed and there is still not a final resolution. The October 19 hearing took place and focused on testimony from a CPS worker. That hearing was continued to October 31, 2023. On November 7, 2023, the family court entered an order granting the parties, their attorneys, and any expert witnesses permission to view the video of a forensic interview with the children that is relevant to the allegations raised by defendant, and there appears to be an ongoing ancillary dispute about the release of that video.
On November 8, 2023, the family court entered an order that denied plaintiff's request to amend the ex parte order and allow interim parenting time, including supervised visitation or telephone communication, pending receipt of further testimony and evidence.1FIt is this order that is presently on appeal to this Court, and it continues to prohibit the plaintiff from having any contact with her children. But after the November 8 order, additional evidentiary hearings were held on January 5, 2024, and February 2, 2024. Following these proceedings, on February 22, 2024, the family court entered a temporary order that superseded the original ex parte order. That order stated that (1) the family court found that defendant met his burden to demonstrate the proper cause or change of circumstances sufficient to warrant review of the prior custody and parenting time order, (2) an evidentiary hearing to determine whether defendant's requested modification is in the children's best interest shall take place on a list of dates in June 2024, (3) plaintiff's objections to the ex parte order suspending parenting time are denied in part and granted in part; and (4) the ex parte order shall continue as a temporary order and is amended and restated, such that plaintiff's parenting time shall remain suspended pending the outcome of the June 2024 hearing, the parties shall share joint legal and physical custody pending the hearing, plaintiff will have no contact with the children including telephone contact, and plaintiff will not be prevented from obtaining medical and educational information.
This order mentions the need to continue the evidentiary hearing on October 31, 2023, suggesting that the order was drafted before that hearing and that there was significant delay in getting the order entered after its submission.
This most recent order has not been appealed to this Court, but the proposed timeline for final resolution of these proceedings appears problematic. The February 22 order was entered substantially more than 28 days after the initial evidentiary hearing on plaintiff's challenge to the initial ex parte order, which is contrary to MCL 272.27a(14), and the reason for such a delay is unclear. Additionally, the February 22 order not only maintains the prohibition against plaintiff having any contact with her children (including by phone), but it also delays proceedings and a final decision on whether a change in the established custodial environment and parenting time arrangements are in the best interest of the children until at least June 2024.
The register of actions for this matter furthers suggests that the family court has adjourned several of the June 2024 dates listed in the February 22 order until October 2024. By June, plaintiff will not have had contact with her children for approximately 10 months, and if this matter is not resolved until October 2024, then more than a year will have elapsed. While trial courts have significant discretion to manage their dockets, expediency is necessary when handling matters that affect parenting time and the custodial environment of minor children.
I am also concerned that plaintiff apparently has been given fewer visitation rights with her children than what is typically provided to most parents facing termination of their parental rights on the basis of abuse or neglect under the Probate Code. See MCL 712A.2(b); MCL 712A.19a; MCL 712A.19b. The purpose of parenting time is "to foster a strong relationship between the child and the child's parents." Shade v Wright, 291 Mich.App. 17, 29 (2010). At least supervised parenting time is often granted to parents whose children have been removed from their custody due suspected child abuse or neglect. The family court's decision to entirely suspend plaintiff's parenting time during the pendency of these proceedings is questionable.
I acknowledge that ex parte and temporary orders can be necessary in post-divorce matters under emergency circumstances, but emergency situations must be resolved with the expediency dictated by the emergency at hand. Ex parte and temporary orders should not be extended indefinitely or in such a way as to eliminate parenting time or, as aptly noted by Chief Justice CLEMENT, to potentially alter the established custodial environment. While there is no relief this Court can grant in the current appeal, I strongly urge the family court to expedite its final resolution of this dispute and to consider restoring to plaintiff some degree of parenting time and contact with her children during the pendency of these proceedings.