Child’s preference must be considered during custody hearing

By Correy E. Stephenson

A trial court erred when it granted a change in custody without considering the preference of the child, the Michigan Court of Appeals has held, vacating the change in custody order and remanding.

Judge Brock A. Swartzle said reversal was warranted here because the error seriously affected the fairness and integrity of the custody proceedings.

“A child’s preference is just that a preference and a trial court must evaluate that preference along with all of the other relevant evidence when making its best-interest determination,” he wrote. “But, even if the child’s preference does not carry the day, there is independent value in knowing on some level that one’s voice has been heard.”

The published decision is Quint v. Quint ( MiLW 07-107861 , 9 pages). Judge James Robert Redford joined Swartzle’s opinion.

Judge Christopher P. Yates concurred.

“[A]lthough I have misgivings about requiring trial courts to ask about the preference of seven-year-old children because that effort may place the children in an uncomfortable position likely to yield an expressed preference that may be suspect, this Court has consistently held that children as young as six years old are ‘“‘of sufficient age to express preference’ within the meaning of MCL 722.23(i),”’” he wrote. “I wish this Court had not said that, and instead had given trial courts substantial discretion to decide whether the young children before them are sufficiently mature to express their preference, but we must follow the published decisions of this Court that afford little discretion to trial courts as to the manner in which they address ‘[t]he reasonable preference of the child’ under MCL 722.23(i).”

Lansing attorney Jordan M. Ahlers of the Speaker Law Firm, who represented the mother, said the decision is instructive for litigating parents as well as trial courts.

“The opinion goes into the history [of MCL 722.23(i)] and the fact that the legislation made consideration of the child’s preference a requirement shows how important it is,” she said. “This court spells out that if that isn’t considered, it is essentially an automatic reversal.”

Terese A. Paletta of Peterson Paletta Balice in Grand Rapids, who represented the father, did not respond to a request for comment.

Change in custody ordered

When the Quints divorced, the trial court awarded both parties joint-legal and joint-physical custody of their one child.

Four years later, however, the plaintiff father moved for a change in custody and parenting time on the basis that the defendant mother was interfering with the child’s schooling as well as the child’s medical and dental appointments.

He testified that during a school visit, the defendant asked the child’s teacher a question, did not understand the teacher’s answer and then mumbled that the teacher was “being racist.” The plaintiff told the court that this was a pattern for the defendant, as she would accuse him of being racist when she did not get her way.

Other examples included speaking to the child in Spanish, turning to the plaintiff and saying, “I can’t believe you,” which would often make the child cry. The defendant also was banned from the child’s dentist office after an altercation over scheduling.

The trial court weighed the best-interest factors MCL 722.23 when considering the change of custody and found that the majority weighed in favor of the plaintiff, stating that it did not find the defendant’s testimony to be credible.

As for factor MCL 722.23(i), the trial court did not consider the reasonable preference of the child.

The court granted the plaintiff sole legal custody and ordered a parenting time schedule. The defendant appealed.

Preference of the child

The defendant first argued that the trial court erred by holding that a proper cause or change in circumstances existed to revisit the child custody order.

Swartzle disagreed.

“In this case, defendant’s behavior led to police involvement, and defendant was prohibited from visiting the child’s dentist based on her behavior,” Swartzle wrote. “Further, plaintiff testified that defendant made accusations against other individuals in front of the child, and these accusations upset the child. Thus, the trial court did not err in finding that there was sufficient proper cause that warranted reevaluating the child’s custody.”

The defendant also challenged the trial court’s analysis of the MCL 722.23 best interest factors.

While the court found that the great weight of the evidence supported the trial court’s findings on the factors it evaluated, the failure to consider the child’s preference with respect to custody warranted reversal.

Neither parent raised the issue below and the court noted that ordinarily in civil cases, it would decline to reach an unpreserved claim on appeal under its raise-or-waive jurisprudence.

“With that said, there are certain discrete civil matters when this Court instead applies the plain-error standard,” Swartzle said. “This is especially appropriate in disputes involving the welfare of a child, whose interests are directly and often irrevocably affected, but whose voice is not always fully heard, even when there is a lawyer-guardian ad-litem involved.”

Here, plain error occurred, the judge found.

“With MCL 722.23(i), our Legislature requires a trial court to consider ‘[t]he reasonable preference of the child, if the court considers the child to be of sufficient age to express [a] preference,’” he wrote. “This statutory requirement is without regard to whether the parent desires the trial court to consider the child’s preference. Rather, the only condition placed on this requirement is whether ‘the court considers the child to be of sufficient age’ to express a reasonable preference, and this Court has held that children as young as six-years of age are presumed to be able to do so, absent some extenuating circumstance.”

At the time of the hearing, the child was 7 years old and there was nothing in the record to suggest that the child could not express a reasonable preference.

Swartzle added that consideration of the MCL 722.23 best interest factors was required when determining both legal and physical custody.

Applying plain-error analysis which ordinarily weighs whether the trial court’s error affected a party’s substantial rights Swartzle said the court could not ignore the substantial rights of the child whose custody was being decided.

“Focusing on the child, we conclude that the trial court’s error affected the child’s substantial rights,” he wrote. “Subsection (i) is the one best-interest provision that affords a child the right and opportunity to have his or her own voice heard in a child-custody proceeding. Our Legislature deemed this right/opportunity of sufficient worth to mandate its consideration in a trial court’s best-interests analysis, and our Court has similarly deemed it of sufficient worth to mandate its consideration by the trial court despite a parent’s failure to raise it.”

The court reversed the trial court’s order granting the plaintiff sole legal custody and remanded for a new custody hearing.

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