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Cross-Motions for Change of Custody in Family Court

Clarkston Legal Jan. 27, 2024

child custody family courtHigh-conflict child custody cases sometimes feature cross-motions for custody in our local county family courts. This post examines what to watch out for in those situations.

In the delicate arena of family law, few disputes are as emotionally charged and complex as high-conflict child custody cases. When parents find themselves at odds over the custody of their children, the legal landscape becomes a battleground where emotions run high, and the stakes are profoundly personal.

Cross-Motions for Child Custody

Such contentious situations often precipitate cross-motions for child custody, with both parents attempting to gain legal ground for the control of their children. Cross-motions means that each parent, rather than simply responding to the other parent’s child custody motion, files their own motion, raising their own child custody issues.

Cross-motions for child custody delve into the intricacies and strategy of high-conflict parenting. This is the land where each parent files their own separate and competing motion for control over their children. Other than moving out-of-state, custody battles are among the most significant legal maneuvers in family courts across the state.  

In addition to filing their own custody motions, it is important that each parent also respond to the other parent's child custody motion. This gives the parent the opportunity to address each of the allegations set forth in the other parent's motion, as well as the -separate- opportunity to raise their own specific issues before the family court.

When cross-motions occur, each parent usually has long-standing complaints about various matters concerning the other parent and the children. Often, that parent may have been considering filing their own motion for quite a while, and the other parent's filing simply triggers them into taking action.

The Friend of the Court will likely be well familiar with this set of parents because most child custody cases that feature cross-motions are deemed "high-conflict". Hiring legal counsel is often adviasable at this stage.

Along with its Friend of the Court team [the family counselor and the Referee], the family court will usually coordinate the hearing(s) for the cross-motions in a manner that will preserve judicial resources. Both motions will likely be heard at the same motion call.

The decision maker [judge or referee] must initially decide whether a parent's child custody motion satisfies an evidentiary threshold that just cause exists to change custody or that a "change of circumstance" has occurred. If the threshold is satisfied, then the case proceeds to an evidentiary hearing. If not, then the custody motion gets denied at the initial motion call.

After the initial arguments and parenting complaints are laid out, an evidentiary hearing is scheduled where each party can call witnesses and present evidence in support of their child custody motion.

A Recent Custody Case

Earlier this month, the Michigan Court of Appeals addressed a prolonged and contentious child custody dispute featuring cross-motions for child custody between the parents in Parent v Mousel; a case from the Genesee County Family Court. The dispute began shortly after the birth of their child in 2014, with both parents accusing each other of misconduct, including parental alienation, physical and emotional abuse, and making false allegations against the other parent.

Despite a joint custody order in 2018, the parents' ongoing animosity and inability to co-parent led to numerous court interventions regarding various aspects of their child's life. The trial court, noting the severe harm to the child due to the parents' conflict, eventually held an evidentiary hearing in January 2023 to address the parents’ cross-motions for sole custody.

After acknowledging a change in circumstances since the 2018 custody order, the trial court surprisingly dismissed both motions, stating that "mutually created, intentional conflict is not a basis for a new custody hearing." The court argued it could not remove the child from the care of both parents and would no longer participate in the situation. Essentially, the Genesee County Family Court judge washed his hands of the parents’ child custody mess.

In an unpublished per curiam [i.e. non-binding] opinion, the Michigan Court of Appeals found the trial court's conclusion inconsistent with its own factual findings and against the great weight of the evidence. The appellate court emphasized that proper cause to revisit the previous custody order was properly established as a threshold matter in the competing motions. Contentious issues addressed by the lower court included parental alienation, allegations of abuse, and the harmful effects of the parents' mutual antagonism on the child.

Accordingly, the Court of Appeals vacated the trial court's order, citing errors in its failure to recognize proper cause, and remanded the case for further proceedings, urging reconsideration of the child's best interests. The appellate court criticized the lower court for not wanting to make the hard decision of selecting one party as the custodial parent. Family court judges are often tasked with this difficult task.

The Parent custody opinion is an unpublished decision. This means that it does not have a binding effect on county family courts; as a statement of the law, it is for guidance only.

Child Custody Procedural Tips

When a parent is faced with meeting "fire with fire" in a cross-motion custody battle there are some dos and don't in the family court system to keep in mind. First, here is a link to our law firm's landing page on the topic of Child Custody; it is a quick informative read and can be a useful reference.

Here are some basic tenets to consider when facing cross-motions for child custody:

  • Keep in mind that only events that occurred since the entry of the last child custody order are relevant for the hearing on the cross-motions;

  • The family court will not allow the parties to re-litigate a past history of grievances;

  • Consider hiring a child custody lawyer with experience in conducting evidentiary hearings;

  • Gather evidence in support of your position in the form of contemporary school records, text or email messages, receipts and other forms of documentation;

  • Meet with your legal counsel to coordinate the presentation of evidence and to discuss witnesses, if any, other than the parents or other immediate family members;

  • Do not complicate matters with poor conduct in retailation to what the other parent has done or is doing within the context of the competing child custody motions;

  • Be sure to record any deadlines and important dates issued by the family court relative to the cross-motions.

Finally, even if tempted, do not discuss family court matters with your children, even if they are teenagers. Resist the temptation to do so.

We Can Help with Child Custody Matters

If you or a family member have child custody issues, contact our law firm to schedule a free consultation. At the initial consult, we can review your evidence and assess recent events to come up with a litigation plan to resolve your child custody issues.