Husted v. Husted

Per Curiam. The judgment of divorce, terminating the marriage between plaintiff and defendant, awarded custody of the parties’ three minor children to the plaintiff and provided that she must notify the court of any change of address and could not change the children’s domicile to outside the State of Michigan without prior court approval. Defendant filed a petition for change of custody, and plaintiff appeals as of right the court order changing the children’s custody from herself to defendant. [443] Defendant petitioned for a change of custody below, alleging that on March 19, 1979, plaintiff removed herself and the children to Florida without prior court approval and established permanent residence there. The petition further alleged that, while in Florida, the children were subjected to an atmosphere of drinking and filth and had requested to live with defendant. Defendant asked that plaintiff be found in contempt of court for removing the children to Florida without prior court approval and that he be granted custody. Defendant had driven to Florida and brought the children back to Michigan with him just prior to filing the petition. Plaintiff was personally served in Florida with notice of the hearing on defendant’s petition. Plaintiff did not appear at the hearing, but her counsel did. Defendant appeared with counsel. Plaintiff’s counsel informed the court that plaintiff would not be at the hearing. Plaintiff’s attorney offered to demonstrate "adequate reasons” why plaintiff was not present, reminded the trial judge that no change of custody could validly take place without considering the best interests of the children pursuant to MCL 722.23; MSA 25.312(3), and added that "[w]e’re here and ready to proceed at this time even though my client is not”. The trial judge rejected counsel’s offer and concluded the hearing by changing custody of the children to defendant, stating: "She [plaintiff] had custody but removed custody of the children from this State without the authority, permission or consent of this Court. She is in violation of an order of this Court, the children are now back within the State of Michigan in the jurisdiction of the Court that had original jurisdiction. The parent that has custody had petitioned for a change of custody and [444] this matter was set for hearing today to determine such through an advocacy proceeding. "Inasmuch as the mother is not present, her default may be entered and the custody of the children will remain with the father under the jurisdiction of this Court until the further order of this Court.” Plaintiff, on appeal, contends that the court committed reversible error by changing custody of the children to defendant without determining what the best interests of the children were pursuant to the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq. We agree. In Dowd v Dowd, 97 Mich App 276, 278-279; 293 NW2d 797 (1980), this Court stated: "The [Child Custody Act of 1970] provides that in a custody dispute between parents the best interests of the child shall control, MCL 722.25; MSA 25.312(5), and indicates that modification of previous orders providing for custody should not occur unless the modification is in the best interests of the child. MCL 722.27; MSA 25.312(7). The act contains an extensive list of factors to be considered in determining the best interests of the child. "The trial court must evaluate each of the factors to determine the best interests of the child before deciding a custody or visitation rights dispute. Flaherty v Smith, 87 Mich App 561; 274 NW2d 72 (1978), Troxler v Troxler, 87 Mich App 520; 274 NW2d 835 (1978), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978). * * * Furthermore, the trial court was required by GCR 1963, 517.1 to make definite findings of fact and to state its conclusions of law; a duty which extends to the determination and explicit consideration of each of the 'best interests’ factors listed in the act. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977).” Because the trial court declined to take any evidence regarding the best interests of the chil [445] dren and based the change of custody solely upon plaintiffs "default”, we reverse and remand for a hearing within 30 days to determine the children’s best interests and custody pursuant to the Child Custody Act. Notice of that hearing upon plaintiffs counsel of record shall be sufficient notice to the plaintiff. There is no requirement that plaintiff be personally present in order for the trial court to act on the petition. Plaintiffs counsel shall be afforded the opportunity to present whatever proofs he deems appropriate and to cross-examine any witnesses that may appear. Reversed and remanded.