Child custody; Parenting time; Proper cause or a change of circumstances; MCL 722.27(1)(c); Lieberman v Orr; Established custodial environment (ECE); Griffin v Griffin (Amended Opinion); The statutory best-interest factors; MCL 722.23; Factors in the parenting time statute; MCL 722.27a(6); In camera interview to determine the children’s parental preference; MCR 3.210(C)(5); In re HRC; Comparing Barretta v Zhitkov; Due process; Ex parte relief; MCR 3.207(A), (B)(1), & (B)(6)(a); Mann v Mann

The court held that “the trial court committed clear legal error by suspending defendant[-father’s] parenting time, based solely on information gathered at an in camera interview, without conducting an evidentiary hearing.” After a divorce the parties had joint physical and legal custody of their children. Plaintiff-mother moved for sole physical and legal custody, and the trial court entered an interim order modifying parenting time. At a subsequent hearing, a visiting trial court judge conferred with the parties off the record in chambers and conducted an in camera interview with the children. The judge then took the bench, remarked that allegations about defendant threating to kill plaintiff if parenting time was modified were “extremely credible,” and suspended defendant’s parenting time. On appeal, the court agreed with defendant that the trial court erred. “The trial court effectively changed physical custody without making findings regarding: (1) whether the change would alter an [ECE], which was necessary to establish the burden of proof; and (2) applying the appropriate burden of proof, whether modification was in the children’s best interests.” Its order “stated that suspension of defendant’s parenting time was in the . . . children’s best interests, but this finding was based only on information gathered during the in camera interview, where ‘the information received shall be applied only to the reasonable preference factor.’” The trial court “‘must determine the best interests of the child as defined in [MCL 722.23], and must make findings on each factor. A hearing is required before custody can be changed even on a temporary basis.’” It also stated that it was “‘more likely than not’ that defendant threatened plaintiff, but it [was] unclear whether preponderance of the evidence was the appropriate standard of proof, because [it] did not make a finding as to whether there was an” ECE. The court also agreed with defendant that he was denied due process because the trial court based its order on information it gathered during the in camera interview that went beyond parental preference. “Although the in camera interview permitted under MCR 3.210(C)(5) provides a useful opportunity for the trial court to consider a child’s reasonable preference when determining their best interests, it is not a substitute for an evidentiary hearing on disputed and potentially outcome-determinative questions of fact about who said what to whom. That was not provided here.” Finally, the court noted that the trial court “did not meet the minimum evidentiary requirements for entry of an ex parte order on the basis of a threat of imminent harm.” Vacated and remanded.