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Family Court Judge Cannot “Rubberstamp” FOC Child Custody Recommendation

Clarkston Legal Feb. 6, 2017

Many county family courts provide various methods for Friend of the Court evaluation and recommendation in child custody disputes. The ultimate decision relating to custody, however, cannot be delegated to the local Friend of the Court says a brand new Michigan Court of Appeals published decision.

The Ingham County case, Bowling v McCarrick, stands for the principle that family court judges must make their own factual findings in a custody dispute. Those findings cannot rely on the conclusions of the FOC as to whether the parent requesting a custody change has met the initial burden of showing a “change of circumstances” that would justify the modification.

In family courts, judges have wide discretion to make that critical initial determination regarding whether the family circumstances have shifted such that a change involving the child warrants a full evidentiary hearing. Unless that initial showing is made, the custody request goes no further.

Ingham County utilizes a “conciliation conference” where a FOC family counselor makes the initial attempt to resolve a family’s custody dispute. If the conciliation conference does not settle the matter, conciliator files written recommendations to the family court which become the order of the court unless one of the parents object.

Sounds like some major-league delegation of a very important task. One of the aspects to the Ingham County procedure that troubled the Court of Appeals was the lack of standards for a conciliator’s report:

We have not addressed whether the conciliator’s report may be relied upon by the trial court as to a best interest determination should the court find proper cause to consider a change in custody. Given that this record does not clearly set forth the training, job responsibilities, or authority of the conciliator in Ingham county, and given the lack of any statewide court rule governing conciliation, we cannot determine if the conciliator’s report would fall within MCL 552.505(1)(g) and MRE 1101. Accordingly, if it finds proper cause to consider a change in custody, it would be prudent for the trial court to conduct a full evidentiary hearing on the best interest factors rather than to rely on a conciliator’s report.

Family law professionals are faced with the prospect that not every dispute merits a full-blown evidentiary hearing. On the other hand, when faced with a never-ending supply of disputes, the family court staffers tasked with making initial threshold custody decisions are pressured to be very selective in recommending a full hearing based on the requisite “change of circumstances”.

Sometimes, on the wrong day, or due to the distortion caused by a quick presentation of a complex set of facts, an initial determination by a low-level professional can be wrong-headed, particularly when a case is not allowed to proceed. Although not every case deserves to proceed to a hearing, families are poorly served by incorrect decisions in this regard.

What the Bowling panel’s decision now requires is for the family court judge to make her own determination, based on an offer of proof made by the moving party, as to whether a sufficient change has occurred. The family court judge cannot rely on the recommendations of a FOC staffer such that it becomes the proverbial “rubber stamp”.

At our law firm, we believe this is a solid ruling by the Court of Appeals on an important family law issue. Judges must make their own custody determinations; even the initial determinations that are so evidence-intensive.

In doing so, they can rely on the assistance and resources of the local Friend of the Court. The judges should avoid, however, a complete reliance to the point of abdication of their judicial responsibility. Efficiency does have its limits in the messy industry of child custody.

If you or a family member are facing a custody motion or a hearing, contact our law firm to discuss your evidentiary options. We offer a free consultation regarding the specifics of your case.