FOC Referee’s Custody Change Ruled Unconstitutional

Many times, representing parents in custody disputes, our lawyers note the blurred lines between parenting time and custody. Legal concepts such as the existence of an “established custodial environment”, legal and physical custody, and the what is in the “best interests of the child” come into play.

Disputes, and the evidence that goes along with them, pours into the courtrooms of the family court, including the Friend of the Court referee’s courtroom. Both family court judges and referees make findings of fact and draw conclusions resolving the legal matter posed to the tribunal; a judge’s conclusions become court orders while a referee makes recommendations to the judge.

A referee’s recommendations can be adopted by the family court judge, but not before the parents have the opportunity to object to the recommendations, and to have their objections examined at a hearing. Sometimes, the blurred lines we see so often in family law result in FOC referees having an inordinate amount of power over the litigants, the families and children within the jurisdiction of the family court.

In a recent highly-contested custody case from Livingston County, the Michigan Court of Appeals reversed an order of the family court because the actions of the referee deprived the mother of her constitutional rights in the child custody context. The case resulted in a 2-1 published -thus binding- decision that covers many of the legal concepts and procedures involved in a custody battle. For this reason, the case is instructive.

Mother abruptly lost custody of her child last March pursuant to the swift entry of a change of custody order prepared by the Livingston County Friend of the Court Referee that sent the minor child to dad’s house that very day. The child stayed at dad’s home until mother regained custody through a successful appeal to the Court of Appeals; this took several months.

The appeals court took great issue with how custody was changed from mom to dad by the FOC Referee, apparently without a proper and pending motion to change custody from dad, without the requisite legal determinations, and prior to a full hearing on these legal issues. Specifically, the court noted that the Referee, at the truncated one-hour hearing, disallowed mother’s lawyer sufficient time to cross-examine the family therapist, indicating mother would have to conduct her cross-examination at another time and that she would have to pay the therapists hourly professional fee.

Also, the appeals court took issue that the Referee apparently rubber stamped the judge’s signature on an order instead of issuing an FOC recommendation to which the parties would have the opportunity to object. The custody order, even with the judge’s stamped signature, takes immediate effect.

This is an important custody case to the extent that it addresses several issues that we see every day in our family law practice. There are constitutional rights to due process and procedural rules that must be followed when deciding important issues such as parenting time and child custody.

If you or a family member face such critical issues and you are unsure of your rights, or worried about how your case will go, contact our law firm to discuss your options at a free confidential consultation.