On June 4, 2020, the Michigan Court of Appeals issued an opinion in the case of Ashmore v. Ashmore . In this case, the trial court issued an opinion suspend parenting time for the father. The father filed several motions to modify custody and parenting time and otherwise failed to follow court orders. The suspension of parenting time occurred without a hearing before the court.
In the Ashmore case, the trial court explained that it was suspending plaintiff’s parenting time because of father’s “conduct at court” and “his failure to comply with multiple court orders to return the minor child to Michigan so that she may begin school . . . .”
The trial court also explained that, under Michigan Court Rule 3.207(B)(1), it had authority to issue a temporary order to suspend father’s parenting time and that “specific facts set forth in the pleading demonstrate ‘that irreparable injury, loss, or damage [would] result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.’ ”
The Michigan Court of Appeals disagreed.
Michigan parenting time law
Under Michigan law, MCL 722.27a(1), parenting time is granted in accordance with the best interest of the child and it is presumed to be in the best interest of the child for both parents to have a strong relationship with the child.
In deciding this case, the Michigan Court of Appeals cited MCL 722.27(a)(3), which provides:
“A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.” MCL 722.27a(3).Michigan Compiled Laws 722.27(a)(3)
Suspending parenting time – hearing required.
Prior to suspending parenting time of a party, the trial court must hold an evidentiary hearing and find by clear and convincing evidence that continuation of parenting time would endanger the child’s physical, mental, or emotional health. Rozek v Rozek, 203 Mich App 193, 194-195; 511 NW2d 693 (1993).
In the Asmore case, the Michigan Court of Appeals noted that the order suspending parenting time for the father did not discuss whether it found by clear and convincing evidence that the continuation of his parenting time would endanger the minor child’s physical, mental, or emotional health. Moreover, the trial court entered the order without holding an hearing to determine whether suspension of plaintiff’s parenting time was warranted.
Suspending parenting time – risk of harm required.
In addition to the requirement for a hearing, the Michigan Court of Appeals further relied upon Michigan Compiled Laws 712A.13a(13), which requires a finding by the court that suspension of parenting time, is warranted only when parenting time may be harmful to the juvenile’s life, physical health, or mental well-being.
Because the trial court failed to conduct a hearing prior to suspending father’s parenting time and failed to make a finding that parenting time imposed a risk of harm to the child’s life, health or mental well-being, the trial court’s order suspending father’s parenting time was reversed.
By: Daniel Findling
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By: Daniel Findling
By: Daniel Findling and Max Emmer