Reasonable Preference of the Child

22 April 2024
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Category: Blog
22 April 2024, Comments: 0

The Michigan Court of Appeals (COA) in Docket # 368002 vacated a Ionia Circuit decision granting a change in the custody which failed to taken into account the child’s preference

Although neither parent raised the issue, the COA concluded that it was plain-error affecting the child’s substantial rights and vacated the trial court’s order.

The trial court found that four of the best-interest factors equally favored both of the parties and six of the factors weighed in favor of plaintiff being granted a change in custody. After considering the best-interest factors, the trial court ordered that the parties continue to share joint physical custody, and it granted Plaintiff/Father sole legal custody. The Defendant/Mother appealed.

Despite neither parent raising the issue that the Court failed to address the child’s reasonable preference, which ordinarily would result in an unpreserved claim. The COA found that judicial prudence favors applying the plain-error standard to an unpreserved claim in a child-custody proceeding.

To show that a plain error occurred, the following four elements must be established on appeal:

1) an error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) the plain error affected substantial rights, and 4) once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted when the plain, forfeited error seriously affected the fairness, integrity or public reputation of judicial proceedings.

The COA found that an error occurred, and it was plain. Indicating, MCL 722.23(I) requires a trial court to consider the reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference. This statutory requirement is without regard to whether the parent desires the trial court to consider the child’s preference. Finding that the only condition placed on this requirement is whether “the court considers the child to be of sufficient age” to express a reasonable preference. The COA found nothing in the record to suggest that the child could not express a reasonable preference.

As to whether the error affected a party’s substantial rights, the COA found that in a child-custody proceeding, the child is a subject of the proceeding, not a party and a trial Court could not ignore the substantial rights of the child whose custody is being decided.

The COA found that the trial court’s findings were not against the great weight of the evidence, bu that the trial court erred by not considering the child’s reasonable preference under MCL 722.23(i) or otherwise explaining why that child was unable to express a preference and vacated the circuit court’s order and remanded the matter for a new custody hearing.

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