March 2010 Archives

The Michigan Legislature passed some minor, yet significant changes to the Friend of the Court Act at the end of the year. These changes will impact practitioners and their clients. Within the Friend of the Court Act (MCL 552.502 et. seq) is a provision that requires a custody and/or parenting time investigation and recommendation if ordered by the court. MCL 552.502(1)(g). This section was amended effective January 8, 2010 to add that "If custody has been established by court order, the court shall order an investigation only if the court first finds that proper cause has been shown or that there has been a change of circumstances." (emphasis added). This is a significant change that reinforces, as a procedural matter, the edict set forth in Vodvarka v Grassmeyer. The Friend of the Court is now on notice that the court must first make a determination of proper cause or a change in circumstances before the Friend of the Court is released to conduct an investigation. This will change the way cases are handled in some counties, where sending parenting time and custody modification requests to the FOC for an investigation (especially if such motions were filed by unrepresented parties) were a matter of course. This may result in more petitions to modify custody being dismissed at the initial hearing. The change encompasses parenting time modification requests, as well, even though our Supreme Court has yet to issue a published decision on whether the Vodvarka standard applies to parenting time petitions that do not change the established custodial environment. Indeed, a recent unpublished case from the Court of Appeals implied that a court need not find proper cause or change of circumstance before hearing a petition to change parenting time when such a request did not result in a change of custody (See Ellsworth v Smith, published February 23, 2010)(holding that the trial court "conflated" the procedure for modifying parenting time with a request to change custody). The new procedural requirement set forth in MCL 552.505(1)(g) just may add more confusion to this issue for practitioners, and those seeking a parenting time modification for their clients would do well to be armed with this case and an argument for why the new requirement does not apply.