If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DANIELLE KRISTY BARJAS, UNPUBLISHED
August 11, 2022
Plaintiff-Appellant,
v No. 360348
Oakland Circuit Court
Family Division
DONALD ALLEN MILLS, LC No. 2014-818055-DS
Defendant-Appellee.
Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.
PER CURIAM.
In this custody dispute, plaintiff appeals as of right the trial court’s order granting the
parties’ joint legal custody over their minor child, TM. Plaintiff contends on appeal that the trial
court abused its discretion by awarding the parties joint legal custody because it made findings
against the great weight of the evidence in adopting the referee’s conclusions that (1) proper cause
or a change in circumstances sufficient to modify custody existed, (2) joint legal custody was in
TM’s best interests, and (3) the parties were able to cooperate and reach agreements necessary for
joint legal custody. Plaintiff also argues that the trial court further erred by denying her objection
to the referee’s joint-custody recommendation without holding an evidentiary hearing. We affirm.
I. BACKGROUND
Plaintiff was initially awarded sole legal and physical custody over TM following a 2014
default judgment against defendant. At that time, plaintiff lived with TM in Michigan, and
defendant, who lived in Colorado, was largely absent from her life. In 2015, defendant moved
back to Michigan in an effort to be closer to and more involved with TM. Defendant began
exercising parenting time with TM and assisted in her homeschooling, subject to plaintiff’s
restrictions. In 2020, defendant purchased a new home with suitable accommodations for TM and
has since been allowed overnight visits. Over these years, the parties have disagreed on various
aspects of TM’s upbringing, particularly on the issues of religion, education, and medical
treatment. In particular, the parties disagreed over TM’s vaccinations and whether TM should be
homeschooled or enrolled in public school. Plaintiff is a practicing Jehovah’s Witness and has
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raised TM accordingly. Defendant, however, is not religious, and has disparaged certain aspects
of plaintiff’s beliefs. Moreover, plaintiff began restricting defendant’s contact with TM
purportedly because defendant refused to stop being with TM when she was naked. Defendant
assisted TM with bathing, dressing, and toileting. Plaintiff claimed it was inappropriate for
defendant to continue such behavior at TM’s current age, while defendant countered that he never
did anything improper. No misconduct was ever established and the parties eventually resolved
this dispute.
In June 2021, defendant moved for a modification of custody from the trial court’s 2014
judgment. Defendant also requested modification to his parenting time, both in his motion to
change custody and in a separately-filed motion to change parenting time. He included two
complaints against plaintiff alleging she failed to provide him reasonable parenting time with TM.
Defendant did not appear at an initially scheduled hearing, and the trial court entered an interim
order dismissing both motions without prejudice. Defendant then moved again to modify custody
and for specific parenting time. He claimed that proper cause or a change of circumstances
necessary to modify custody existed because he was now living in Michigan with suitable housing
for TM, had regularly exercised parenting time since his return, and currently had a great
relationship with TM. As for his request for specific parenting time, defendant claimed that
plaintiff had unilateral control over his time with TM but was failing to facilitate and unwilling to
promote a relationship between them.
The trial court entered a stipulated order granting defendant specific, regular parenting time
and referring the custody issue for a recommendation from the Friend of the Court (FOC). The
FOC recommended against joint legal custody. Defendant then filed an objection to the FOC
recommendation and requested an evidentiary hearing on the custody issue. The trial court
referred the case for a referee hearing, which occurred on December 3, 2021.
Thereafter, the referee recommended granting defendant’s request for joint legal custody
and directing the parents to participate in the co-parenting program. The referee first concluded
that defendant had met his burden to show proper cause or a change in circumstances sufficient to
warrant a change in custody. Next, the referee concluded that TM had an established custodial
environment with both parents, defendant’s request for joint legal custody would not alter those
established custodial environments, and, therefore, defendant had the burden to show by a
preponderance of the evidence that his requested modification was in TM’s best interests. On this
issue, the referee concluded that defendant met his burden and that it was in TM’s best interest for
the parties to share joint legal custody. The referee also concluded that, despite the parties’
disagreements, they were able to sufficiently cooperate and agree on issues concerning TM’s
upbringing. The referee further reasoned that plaintiff’s opposition to joint legal custody appeared
to be more about her desire for control over TM than any legitimate concerns about the parties’
ability to work together to make decisions in TM’s best interest.
Plaintiff obtained new counsel and filed an objection to the referee’s recommendation for
joint legal custody. She reiterated that the parties could not agree on essential matters relating to
legal custody, including: (1) TM being homeschooled, (2) TM being raised as a Jehovah’s Witness,
(3) defendant being able to respect and not disparage their religion, (4) TM’s timeline for receiving
vaccinations, (4) whether defendant should be present for TM’s medical appointments, and (5) the
“age at which certain acts of self-directed grooming should be permitted.” Plaintiff argued that
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the referee erred in her determinations on proper cause or a change in circumstances, TM’s
custodial environment, and TM’s best interests. Accordingly, plaintiff requested that the court
hold another evidentiary hearing on the custody issue and ultimately order (1) the continuation of
sole legal custody with plaintiff, (2) restore plaintiff’s control over who teaches TM particular
school subjects, and (3) direct defendant to refrain from denigrating or misinforming TM about
their religion.
The trial court heard plaintiff’s objection on February 9, 2022, and determined that it lacked
the specificity required under MCR 3.215(E)(4). It also concluded that the referee’s
recommendation should be adopted because, while the parties disliked each other, they should be
able to set aside their differences and work together (or at least civilly compromise) given their
shared love for TM. The court denied plaintiff’s objection and adopted the referee’s
recommendation granting defendant’s request for joint legal custody and ordered the parties to
participate in co-parenting classes. It further ordered neither party to disparage the other nor their
beliefs in TM’s presence, and directed defendant to refrain from being in a room while TM was
naked. This appeal followed.
II. STANDARDS OF REVIEW
A trial court’s order concerning child custody “ ‘shall be affirmed on appeal unless the trial
judge made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.’ ” Pierron v Pierron, 486 Mich 81, 85; 782
NW2d 480 (2010), quoting MCL 722.28.
In the context of child custody cases, there are findings of ultimate facts,
i.e., a finding regarding each factor, and there are findings of ordinary or evidentiary
facts. The great weight of the evidence standard applies to all findings of fact.
[Fletcher v Fletcher, 447 Mich 871, 879; 526 NW2d 889 (1994).]
Under this standard, “a reviewing court should not substitute its judgment on questions of fact
unless the factual determination clearly preponderate[s] in the opposite direction.” Pierron, 486
Mich at 85 (quotation marks and citation omitted; alteration in original). Furthermore, this Court
defers to the trial court’s credibility determinations. Shann v Shann, 293 Mich App 302, 305; 809
NW2d 435 (2011).
A trial court’s discretionary rulings in a custody dispute are reviewed for a palpable abuse
of discretion, see MCL 722.28, which occurs “when the trial court’s decision is so palpably and
grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or
the exercise of passion or bias.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).
And “ ‘[a] trial court commits clear legal error when it incorrectly chooses, interprets, or applies
the law.’ ” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003), quoting
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000).
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III. ANALYSIS
A. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES TO MODIFY CUSTODY
Plaintiff first argues that the trial court abused its discretion in awarding the parties joint
legal custody because the lower-court finding that proper cause or a change in circumstances
sufficient to modify custody existed was made against the great weight of the evidence. We
disagree.
To modify an existing custody order, the movant must first prove by a preponderance of
evidence either proper cause or a change in circumstances warranting such a modification. See
Vodvarka, 259 Mich App at 508-509; see also MCL 722.27(1)(c). This showing is required before
a court can reevaluate the statutory best-interest factors. Vodvarka, 259 Mich App at 508-509.
This Court has defined proper cause as “one or more appropriate grounds that have or could have
a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial
situation should be undertaken.” Id. at 511. Such grounds “should be relevant to at least one of
the twelve statutory best[-]interest factors, and must be of such a magnitude to have a significant
effect on the child’s well[]being.” Id. at 512.
Alternatively, a change in circumstances exists when, “since the entry of the last custody
order, the conditions surrounding custody of the child, which have or could have a significant
effect on the child’s well[]being, have materially changed.” Id. at 513.
[N]ot just any change will suffice, for over time there will always be some changes
in a child’s environment, behavior, and well[]being. Instead, the evidence must
demonstrate something more than the normal life changes (both good and bad) that
occur during the life of a child, and there must be at least some evidence that the
material changes have had or will almost certainly have an effect on the child. [Id.
at 513-514.]
As with proper cause, courts should evaluate the relevance of the facts to this determination as
“being gauged by the statutory best[-]interest factors.” Id. at 514.
Plaintiff argues that that the referee’s finding on proper cause or a change in circumstances,
adopted by the trial court, “was not supported by the great weight of the evidence[1]” because the
referee relied on “stale” information. Plaintiff notes that defendant’s move to Michigan and
increased involvement in TM’s life occurred six years before his motion to modify custody. She
also notes that the parties had a long-established routine for the past several years in which
defendant was permitted significant parenting time and plaintiff retained key decision-making
authority with sole legal custody. Plaintiff describes TM as thriving under this arrangement.
Therefore, according to plaintiff, “no proof [was] offered to show that anything has changed for
the child or that she somehow needed her father to be more involved in her life to offset some harm
1
Despite this phrasing used by plaintiff, the proper inquiry here is not whether the trial court’s
findings were supported by the great weight of the evidence, but rather whether such findings were
made against the great weight of the evidence. See Pierron, 486 Mich at 85.
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or missed opportunity caused by the current custodial arrangement.” Plaintiff claims that there
was no sufficient change from after defendant’s move to Michigan, nor even since the initial
custody determination in 2014. She also asserts that defendant’s modification request was simply
based on his unilateral desire for joint legal custody rather than any need for such an arrangement.
Plaintiff further explains that the rationale behind requiring a proof of proper cause or a
change in circumstances is to promote and protect the child’s stability. In plaintiff’s view,
“changing custody [in this case] does not promote stability, it encourages instability.” Plaintiff
lists numerous facts purportedly supporting her argument, including: (1) TM was doing well with
her current schooling and engaged in the Jehovah’s Witness religion; (2) plaintiff did mostly
vaccinate TM apart from the COVID-19 vaccine, which she was willing to consider at a later time;
(3) the parties continued to disagree on decisions regarding TM’s religion, education, and medical
treatment, apparently causing TM distress; (4) despite defendant’s apparent willingness to TM
being raised as a Jehovah’s Witness, he admitted questioning plaintiff’s religious teachings and
telling her that she was raising TM to be a sycophant; and (5) defendant was disrespectful to, or
disinterested in, the opinions of others in TM’s life, causing confusion for TM.
We conclude that the lower court’s finding on proper cause and a change in circumstances
is adequately supported by the record and was not against the great weight of the evidence. The
record clearly establishes that after the 2014 default judgment and initial custody determination,
defendant moved back to Michigan to be near TM and was significantly more involved in her life,
albeit subject to plaintiff’s restrictions. Both parties acknowledged the substantial changes in their
arrangement, with defendant initially living in a different state and having virtually no contact with
plaintiff or TM. By the time defendant moved to change custody, however, he was living near TM
with suitable housing, had been engaging in regular parenting time, had a strong relationship with
TM, and was intimately involved in her homeschooling, albeit without any decision-making
authority.
The referee’s recommendation explicitly connected these facts to two best-interest factors.
Vodvarka, 259 Mich App at 512. Defendant’s proximity to and increased involvement with TM
implicated the actual love, affection, and emotional ties between the two as well as defendant’s
capacity to give TM love, affection, and guidance, and to assist in her education. See
MCL 722.23(a) and (b). In other words, defendant’s move and increased involvement in TM’s
life was of “such magnitude [as] to have a significant effect on” her wellbeing. Vodvarka, 259
Mich App at 512. The difference between an absent father living across the country and one close
by who is able to visit regularly and assist with education and other vital childrearing endeavors is
no small matter.
Defendant cites to Sinicropi v Mazurek, 273 Mich App 149; 729 NW2d 256 (2006), which,
while not directly on point, further supports the referee’s finding. In Sinicropi, this Court
determined that one custodial parent’s 89-mile move away from the other custodial parent was a
sufficient change in circumstances to warrant modification of custody, particularly because it
would have changed the child’s living environment and schooling. Sinicropi, 273 Mich App at
178-179. Though Sinicropi involved a parent and the child moving away from the other parent,
rather than a parent moving closer to the child and other parent, as occurred here, there were still
significant changes to TM’s living environment resulting from defendant’s move, making
Sinicropi analogous. Notably, when defendant initially moved to modify custody, TM began
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spending significant time with him and he engaged with her as a father figure—things he did not
and could not do when he resided in Colorado. Finally, the fact that defendant waited numerous
years after his move and initially-increased involvement in TM’s life before requesting any
custody modification is irrelevant when the question to be answered with regard to changed
circumstances is whether there has been a change since entry of the last custody order in 2014.
Thus, the trial court did not err in adopting the referee’s recommendation that defendant had proven
that there was proper cause and a change of circumstances to warrant modifying legal custody.
B. THE CHILD’S BEST INTERESTS
Plaintiff next argues that the trial court abused its discretion and made findings against the
great weight of the evidence by finding that a change to joint legal custody was in TM’s best
interests. We disagree.
“Once a party has met the initial burden of showing a change in circumstances or proper
cause to revisit the custody order, the next step is for the circuit court to determine the applicable
burden of proof for the custody hearing.” Dailey v Kloenhamer, 291 Mich App 660, 666-667; 811
NW2d 501 (2011), citing MCL 722.27(1)(c). When a proposed modification alters a child’s
existing custodial environment, the movant must show by clear and convincing evidence that the
requested change would be in the child’s best interests under the factors provided by MCL 722.23.
See Pierron, 486 Mich at 89-90; see also MCL 722.26a(1)(a); MCL 722.27(1)(c). Otherwise, the
burden of proof is a preponderance of the evidence. Pierron, 486 Mich at 89-90. “Generally, the
trial court must consider and explicitly state its findings and conclusions regarding each [best-
interest] factor . . . .” Riemer v Johnson, 311 Mich App 632, 641; 876 NW2d 279 (2015)
(quotation marks and citation omitted). Under MCL 722.23, The best-interest factors are:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in his
or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted under
the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and
the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or
homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
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(i) The reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent or the child and the parents. A court may not consider negatively for the
purposes of this factor any reasonable action taken by a parent to protect a child or
that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
Plaintiff does not specifically challenge the lower court findings that TM had an established
custodial environment with both parents or that the applicable burden of proof was a
preponderance of the evidence. Instead, she argues that the lower court erred in its analysis of
factors (b), (d), (h), and (j).
1. FACTOR (b)
Plaintiff claims that the referee improperly found factor (b) only slightly favored her. She
asserts that this factor clearly fell in her favor because of defendant’s consistent issues with TM
being raised as a Jehovah’s Witness and the parties’ disputes over education. Although
acknowledging that both parents are able and willing to provide TM love and guidance, plaintiff
asserts that defendant, based on his actions, was unwilling to continue TM’s existing educational
and religious upbringing, despite his “hollow promises” otherwise.2 According to plaintiff, the
record shows that, under this factor, TM was at “risk of having her whole world cast into turmoil
by . . . [d]efendant if he tries to change her religion, change her schooling, or attack her core belief
system—yet he regularly threatens to do just that.”
In analyzing factor (b), the referee explicitly acknowledged the parties’ disagreement on
religion and education and defendant’s prior inappropriate statements to TM. But the referee
apparently credited defendant’s testimonial assurances that he would not seek to change TM’s
existing religion or schooling. The trial court also recognized that both parties significantly
participated in TM’s homeschooling and displayed equal love and affection toward her. Given the
totality of the record, it was not against the great weight of the evidence to conclude that this factor
only slightly favored plaintiff.
2
To the extent that plaintiff repeatedly argues or implies that defendant was either lying or being
disingenuous with various aspects of his testimony below, this Court defers to the lower “court’s
credibility determinations given its superior position to make these judgments.” Shann, 293 Mich
App at 305.
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2. FACTOR (d)
Plaintiff next claims that the referee improperly found factor (d) weighed equally between
the parties because it should have clearly favored her. She notes that TM has successfully lived
with her since birth in a stable and satisfactory environment. In her view, no identifiable reason
existed to alter this arrangement aside from defendant’s unilateral desire for more input in
parenting decisions. Indeed, despite plaintiff’s efforts to keep defendant involved in TM’s life
since his return to Michigan, he continuously undermined plaintiff by disparaging their Jehovah’s
Witness faith, calling her stupid in front of TM,3 and refusing to engage with her husband
concerning TM’s wellbeing.
We acknowledge that TM lived solely with plaintiff for the majority of her life without any
concern regarding the stability of that environment. But, after securing new housing in 2020,
defendant has been able to exercise overnight parenting time with TM on various weekdays and
alternating weekends pursuant to the parties’ August 2021 stipulated order. The referee
determined both parents’ current homes were suitable and sufficiently stable. TM was spending
significant time with both parents by the time of the referee’s recommendation. Therefore,
although plaintiff’s more prominent and long-standing role in TM’s life compared to defendant
could have justified favoring her on this factor, it was not against the great weight of the evidence
to weigh it equally between the parties.
3. FACTOR (h)
Concerning factor (h), plaintiff asserts that she should have been favored under this factor
because TM’s successful school, social, and community record were established while she had
sole legal and physical custody of TM. In fact, both parties confirmed TM was doing well in
school and thriving in her community free of any behavioral or disciplinary issues.
As with factor (b), the referee acknowledged the parties’ disputes on education, particularly
concerning certain curriculum that might conflict with plaintiff’s religious beliefs and defendant’s
alleged preference for public schooling. But the referee nevertheless stated that there did not seem
to be any continuing, significant dispute between the parties on education. Given defendant’s
assurance that he would not change TM’s existing educational program and the referee’s superior
ability to determine credibility, this conclusion is adequately supported by the record. Although
plaintiff is correct that TM appears well-adjusted and has been doing well while under her sole
custody, plaintiff ignores defendant’s contributions to TM’s homeschooling and his growing
involvement in her life. Defendant taught TM science, and later math, and he regularly promoted
fun and engaging opportunities for her. Given these facts, it was not against the great weight of
the evidence to conclude that this factor weighed equally between the parties.
3
Plaintiff testified that defendant told her that she was “stupid” while they were arguing about
religion, but otherwise informed her that he thought she was “smart.” Plaintiff then testified that
their disagreements regarding religion occurred with TM present “ma[n]y times[;]” however, it is
unclear whether defendant’s insult occurred in front of TM. Going forward, the trial court ordered
the parties not disparage each other or their beliefs in TM’s presence.
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4. FACTOR (j)
Plaintiff claims that the referee improperly found factor (j) to slightly favor defendant
because she was willing to facilitate and encourage a close and continuing relationship between
TM and defendant, but he was not willing to do the same for her.
In analyzing factor (j), the referee correctly recognized that both parents have issues
trusting one another and, therefore, facilitating and encouraging a relationship between TM and
the other parent. Defendant disparaged plaintiff and TM’s religion, while plaintiff called defendant
an idiot, “shared inappropriate information with” TM, and restricted defendant’s contact with TM
for various reasons. Defendant nevertheless encouraged TM to make holiday gifts for plaintiff
and to show plaintiff their completed projects. And although not explicitly stated, the referee’s
preference for defendant on this factor could reasonably have been based on defendant’s
assurances that he was amenable to plaintiff’s wishes concerning TM’s existing religion and
educational program, while plaintiff seemingly did not want to allow defendant any meaningful
input on critical decisions regarding TM’s upbringing. Thus, despite plaintiff’s argument that she
encouraged defendant to have additional parenting time and allowed him to opine on important
parenting decisions, the record shows that she largely dismissed defendant’s concerns and opinions
when they disagreed and that she was generally unwilling to grant defendant any substantive
decision-making authority. On this record, it was not against the great weight of the evidence for
the referee to find that this factor slightly favored defendant.
C. JOINT CUSTODY
Plaintiff asserts that the trial court further abused its discretion in awarding the parties joint
legal custody because the lower-court finding that the parties were able to agree on key
components of TM’s upbringing was made against the great weight of the evidence. We disagree.
When considering joint custody, “the court must consider the general level of cooperation
and agreement between the parties . . . .” Dailey, 291 Mich App at 667 (quotation marks and
citation omitted); see also MCL 722.26a(1)(a)-(b) (In addition to the statutory best-interest factors,
a court shall consider “[w]hether the parents will be able to cooperate and generally agree
concerning important decisions affecting the welfare of the child.”).
Plaintiff likens the instant case to Dailey in which this Court affirmed the lower court’s
modification from joint to sole legal custody, in part, because the parties could no longer agree on
essential issues concerning their child’s wellbeing. Dailey, 291 Mich App at 661-664, 667-669.
Plaintiff insists that the instant facts actually show more discord between the parties than those in
Dailey. According to plaintiff, the record showed that the parties did not work well together and
could not function as a decision-making unit because they fought constantly and because defendant
called her stupid even in front of TM.4 In plaintiff’s view, defendant refused to negotiate in good
faith, evinced by his apparent agreement for TM to be raised as a Jehovah’s Witness while
continuously undermining her religious beliefs. Given the parties continued disagreements on
4
See footnote 3.
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essential issues concerning TM’s wellbeing5 and their generally strained relationship, plaintiff
argues that joint legal custody would actually have the opposite of its intended goal to create a safe
and disruption-free environment for TM.
We first acknowledge that the record does contain evidence of continued disagreements on
certain issues. Specifically, defendant “questions” plaintiff’s religion and has made disparaging
comments regarding plaintiff’s beliefs in front of TM. Defendant would also apparently like to
teach TM evolution and prefer her to enroll in public school, while plaintiff disagrees. Finally, the
parties still cannot fully agree on TM’s medical care, specifically her continued lack of vaccination
against COVID-19. But notwithstanding these disagreements, defendant explicitly testified that,
if granted joint legal custody, he would not interfere with TM’s religious upbringing or current
educational program. Although plaintiff contends defendant’s testimonial concessions on the
topics of homeschooling TM and raising her as a Jehovah’s Witness were disingenuous, we defer
to the lower court’s superior ability to weigh the credibility of the witnesses that testified before
it. Shann, 293 Mich App at 305.
Furthermore, the referee recognized that the parties were able to agree on certain issues.
For example, although plaintiff was apparently wholly against vaccination, defendant’s concerns
persuaded her to adopt a delayed vaccination schedule for TM. Similarly, though not a key
component of joint custody decision-making, defendant also acceded to plaintiff’s concerns about
TM’s position in his car once provided with supporting information. And defendant’s continued
involvement in TM’s homeschooling, with no issues identified since his earlier attempts to teach
TM evolution in first grade, likewise evinces a willingness and ability of the parties to work
together in TM’s best interests as does the parties’ agreement on a stipulated order regarding
parenting time.
In contrast, the child’s wellbeing in Dailey was relegated as a secondary matter to the
parents’ documentation of their actions and disagreements, rendering them unable to operate
jointly in raising their child.6 Dailey, 291 Mich App at 668-669. In this case, however, plaintiff
5
Plaintiff identifies several areas of disagreement, including religion, education, medical care, and
appropriate social boundaries. We have already addressed the first two areas and the trial court’s
order addressed the issue of social boundaries. As to the medical issues, only the COVID vaccine
remained and defendant’s absence from TM’s medical appointments because “he makes [plaintiff]
uncomfortable” as “[h]e is not that nice to [plaintiff].” Although plaintiff had “tried to separate
[herself] from the situation to better [TM] because she does love him so much,” she just did not
“want to be around it” and “would rather . . . just handle [TM’s] appointments.” Even so, plaintiff
always kept defendant informed.
6
Dailey is also procedurally distinct. Dailey required this Court to review the lower court’s finding
that the parties could not agree on key aspects of joint legal custody. Dailey, 291 Mich App at
668-669. Here, in contrast, we are reviewing the lower court’s finding that the parties were able
to agree on such issues. Given the high standards of review in custody cases, this distinction is
important.
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and defendant have still been able to come together on certain issues, and both clearly seem to
want what is best for TM notwithstanding their disagreements. In fact, despite their earlier dispute
concerning evolution, the parties have continuously worked together on TM’s homeschooling
education. And, as just discussed, the parties can agree (or at least compromise) on numerous
other issues, including TM’s vaccination schedule and car safety. Also, notable here are
defendant’s explicit concessions to homeschooling TM and allowing her to be raised as a
Jehovah’s Witness, even if granted joint legal custody. Finally, unlike Dailey, where only four of
the best-interest factors favored the defendant and not solely favored the plaintiff, the parties in
this case are much more equally weighted.
Because the record established that the parties were able to agree and work together on
certain issues, the referee’s conclusion that the parties could sufficiently cooperate and agree as
necessary for joint legal custody was not against the great weight of the evidence. And given our
similar conclusions concerning proper cause or a change in circumstances and TM’s best interests,
the trial court also did not abuse its discretion in awarding the parties joint legal custody.
D. FAILURE TO HOLD AN EVIDENTIARY HEARING
Lastly, plaintiff argues that the trial court erred by denying her objection to the referee’s
joint-custody recommendation without holding an evidentiary hearing. We disagree.
Generally, a party is entitled to a de novo hearing before the trial court when filing a valid
and timely objection to a referee’s recommendations. See MCL 552.507(4) (“The court shall hold
a de novo hearing on any matter that has been the subject of a referee hearing, upon the written
request of either party or upon motion of the court. The request of a party shall be made within 21
days after the recommendation of the referee is made available to that party.”); MCR 3.215(E)(4).
Specific to child custody proceedings, MCR 3.215(E)(4) provides:
A party may obtain a judicial hearing on any matter that has been the subject of a
referee hearing and that resulted in a statement of findings and a recommended
order by filing a written objection and notice of hearing within 21 days after the
referee’s recommendation for an order is served on the attorneys for the parties, or
the parties if they are not represented by counsel. The objection must include a
clear and concise statement of the specific findings or application of law to which
an objection is made. Objections regarding the accuracy or completeness of the
recommendation must state with specificity the inaccuracy or omission.
According to plaintiff, the trial court erred by dismissing her objection when it cut off
plaintiff’s counsel at the objection hearing and took no additional testimony. She claims that
(1) the court was obligated under MCR 3.215(E) to allow additional evidence at a de novo hearing,
(2) such an opportunity could have altered the outcome by allowing her to establish defendant’s
promises to support TM’s religion as a Jehovah’s Witness were disingenuous, and (3) this Court
should thus remand for a de novo hearing. She further asserts that her objection was sufficiently
specific in challenging the referee’s conclusions on TM’s established custodial environment and
the applicable burden of proof, the existence of proper cause or a change in circumstances to
warrant modification of custody, and whether such a modification was in TM’s best interests. Her
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objection also specifically cited Dailey as rendering joint legal custody inappropriate under the
instant circumstances. Even so, plaintiff acknowledges that she “did not have access to the
transcripts in time to summarize them before filing her objection.”
MCR 3.215(F)(2) governs the conduct of the judicial hearing following a party’s objection
to an FOC recommendation as follows:
To the extent allowed by law, the court may conduct the judicial hearing by review
of the record of the referee hearing, but the court must allow the parties to present
live evidence at the judicial hearing. The court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which no
objection was filed;
(b) determine that the referee’s finding was conclusive as to a fact to which no
objection was filed;
(c) prohibit a party from introducing new evidence or calling new witnesses unless
there is an adequate showing that the evidence was not available at the referee
hearing;
(d) impose any other reasonable restrictions and conditions to conserve the
resources of the parties and the court.
MCL 552.507 also permits judicial review of FOC recommendations following the
objection of a party. In relevant part, it reads:
(5) A hearing is de novo despite the court’s imposition of reasonable restrictions
and conditions to conserve the resources of the parties and the court if the following
conditions are met:
(a) The parties have been given a full opportunity to present and preserve important
evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are afforded
a new opportunity to offer the same evidence to the court as was presented to the
referee and to supplement that evidence with evidence that could not have been
presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited to, the
following:
(a) A new decision based entirely on the record of a previous hearing, including
any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de novo
hearing.
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(c) A new decision based in part on the record of a referee hearing supplemented
by evidence that was not introduced at a previous hearing.
Interpreting the statutory provision and the court rule, this Court in Dumm v Brodbeck, 276
Mich App 460; 740 NW2d 751 (2007), affirmed the trial court’s custody determination even
though it refused to hold a full-blown evidentiary hearing after the defendant objected to the
referee’s recommendation. Id. at 463-466. The Dumm Court concluded that it was proper for the
trial court to reject the defendant’s objection without an evidentiary hearing because (1) it
adequately considered the prior FOC record, (2) the defendant, in objecting to the referee
recommendation, neither requested to present live testimony nor provided any additional
supporting documentary evidence, and (3) nothing indicated that the defendant was prevented from
presenting any evidence before the FOC referee. Id. at 464-466. Relatedly, in a brief opinion
reversing this Court’s ruling that the trial court failed to conduct an evidentiary hearing on a party’s
objection to an arbitrator’s custody determination, the Michigan Supreme Court held that “as long
as the circuit court is able to determine independently what custodial placement is in the best
interests of the children[,] . . . an evidentiary hearing is not required in all cases.” MacIntyre v
MacIntyre, 472 Mich 882, 882; 693 NW2d 822 (2005) (quotation marks and citation omitted).
First and foremost, we agree with the trial court that plaintiff’s objection failed to comply
with MCR 3.215(E)(4). Though plaintiff did superficially object to the referee’s conclusions on
TM’s established custodial environment and the applicable burden of proof, the existence of proper
cause or a change in circumstances to warrant modification of custody, and whether such a
modification was in TM’s best interests, she did not state with specificity what was inaccurate or
incomplete in the referee’s recommendation regarding these alleged errors. Instead, plaintiff
simply reasserted basically the same arguments made before the referee. Additionally, she did not
identify any facts improperly considered or omitted by the referee, and she did not present any
new evidence or assert that any evidence had been restricted during the earlier evidentiary hearing.
And, following Dumm, we conclude that the trial court needed not hold a second
evidentiary hearing even if plaintiff’s objection was facially valid. Like the defendant in Dumm,
plaintiff never requested to present any additional testimony with her objection and it similarly
lacked supporting documentary evidence. See Dumm, 276 Mich App at 465-466 (“[the] defendant
neither asked to present live evidence before the trial court nor presented any documentation or
affidavits to support his allegations.”). Nor is there any indication in the record or in plaintiff’s
arguments that she was prevented from presenting any evidence before the referee. These
deficiencies also refute plaintiff’s contention on appeal that she would have been able to provide
additional evidence to establish defendant’s promises to support TM’s religion as a Jehovah’s
Witness were disingenuous. And she still does not describe with any specificity her allegedly
available additional evidence. Lastly, though it did not say so explicitly, the trial court implied at
the objection hearing that it had reviewed the FOC record.
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For these reasons, the February 2022 hearing on plaintiff’s objection satisfied the
requirements of MCL 522.507 and MCR 3.215(E) and (F) regarding a de novo hearing. Therefore,
the trial court did not abuse its discretion in denying plaintiff’s objection without holding an
evidentiary hearing.
Affirmed.
/s/ Michael J. Riordan
/s/ Stephen L. Borrello
/s/ Anica Letica
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