ROSARIA C BUCHER V JOHN R BUCHER
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STATE OF MICHIGAN
COURT OF APPEALS
ROSARIA C. BUCHER a/k/a
ROSARIA PATTERSON,
UNPUBLISHED
February 3, 1998
Plaintiff-Appellant,
v
No. 205749
Macomb Circuit Court
LC No. 93-001129-DM
JOHN BUCHER,
Defendant-Appellee.
Before: Markman, P.J., and McDonald and Cavanagh, JJ.
PER CURIAM.
In this child custody matter, plaintiff appeals as of right from the trial court order granting
physical custody of the parties’ three minor children to defendant. We reverse and remand for an
evidentiary hearing and consideration of all of the best interest factors.
Pursuant to the parties’ consent judgment of divorce, entered October 24, 1994, sole physical
custody of the parties’ three minor daughters was granted to plaintiff, but the parties were to have joint
legal custody over their children. Thereafter, plaintiff attempted to remove the children from the State of
Michigan to the State of New Jersey where she established residency with her new husband and
accepted a new job. Defendant objected to the relocation, and the court denied plaintiff’s motion for
change of domicile finding that the move was not in the best interests of the children.
After numerous, lengthy disputes over various custody and visitation issues, the parties entered
into a stipulation on August 19, 1996, whereby plaintiff was permitted to relocate with the children to
New Jersey, and defendant was granted extended visitation and his child support obligations were
reduced. Among other things, the stipulation included a provision which stated as follows:
Should a child decide that she wishes to reside with the noncustodial parent, that child
may do so after she has completed the current school year, but only if it is determined
by both parents that the child’s decision to change residence is based on sincere and
sound reasoning. Great weight will be given to the child’s decision and parties will be
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reasonable in giving or withholding their consent to a change of custody. However,
should there be a dramatic decrease in the child’s academic performance, custody will
revert to the prior parent.
At the end of the summer of 1997, during which the children resided primarily with defendant,
he filed a motion for custody of the minor children. Over plaintiff’s objections, and without conducting
an evidentiary hearing on the matter, the court granted the motion and awarded custody to defendant.
The court based its decision exclusively on the fact that the children expressed a preference to live in
Michigan and, pursuant to the parties’ stipulation, the court was obliged to honor their request. Plaintiff
now appeals that decision.
This Court will affirm a custody order on appeal unless the trial court’s factual findings were
against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court
made a clear legal error on a major issue. MCL 722.28; MSA 25.312(8); Fletcher v Fletcher, 447
Mich 871, 876-877, 900; 526 NW2d 889 (1994). The great weight of the evidence standard applies
to all findings of fact; a trial court’s findings as to the existence of an established custodial environment
and as to each custody factor should be affirmed unless the evidence clearly preponderates in the
opposite direction. Id. at 879,900. The abuse of discretion standard applies to the trial court’s
discretionary rulings such as to whom custody is ultimately granted. Id. Questions of law are reviewed
for clear legal error, which occurs when the court incorrectly chooses, interprets or applies the law. Id.
at 881,900.
On appeal, plaintiff asserts several arguments to support her position that the trial court erred by
modifying the custody order to award custody to defendant. First, she argues that appellate courts have
consistently reversed modifications of custody orders entered without an evidentiary hearing, and she
urges this Court to do so here because the trial court failed to conduct an evidentiary hearing and
consider all of the best interest factors. We agree.
Under most circumstances, an evidentiary hearing is required before any change of custody is
ordered. Mann v Mann, 190 Mich App 526, 532; 476 NW2d 439 (1991). Changing custody
without providing a hearing “circumvent[s] and frustrate[s] one of the purposes of the Child Custody
Act-- to minimize the prospect of unwarranted and disruptive changes of custody.” Id. at 532.
Without considering testimony, affidavits, documents, and other admissible evidence, a court is not in a
position to properly determine what is in the best interests of the child. Id.; Stringer v Vincent, 161
Mich App 429, 432; 411 NW2d 474 (1987).
This Court has advised that the first step in deciding a child custody dispute is to determine
whether an established custodial environment exists. Stringer, supra at 434. A court should refrain
from changing the custodial environment, unless it is presented with clear and convincing evidence that
the change would be in the best interest of the child. On the other hand, if the court finds that an
established custodial environment does not exist, then it may modify a custody order if the non-custodial
parent can prove by a preponderance of the evidence that a custody change was warranted. Id. at
435. Thus, a custody award may be modified on a showing of proper cause or a change of
circumstances which establishes that the change would be in the best interests of the children. MCL
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722.27(1)(c); MSA 25.312(7)(1)(c); Dehring v Dehring, 220 Mich App 163, 166; 559 NW2d 59
(1996). However, absent an evidentiary record upon which the court can resolve this issue, this Court
is unable to carry out its function of determining whether the court abused its discretion or committed
clear legal error in rendering its decision. Stringer, supra at 434.
In the instant case, the trial court determined that defendant established proper cause and a
sufficient change in circumstances to modify the custody award. However, it did not initially determine
whether there was an established custodial environment. Nor did the court conduct an evidentiary
hearing to permit each party to present witnesses, evidence, and support for their opposition to the
other party having custody. Furthermore, the trial court erroneously relied solely on the child’s
preferences in making its ruling, ignoring the other relevant factors expressly contained in the Child
Custody Act. Thus, because the court failed to comply with the requisite procedure, we find that the
trial court’s order was erroneous. Accordingly, we find that the order should be reversed and this
matter should be remanded to the trial court for an evidentiary hearing and full consideration of all the
factors. See Pluta v Pluta, 165 Mich App 55; 418 NW2d 400 (1987).
Plaintiff also argues that although the parties stipulated to accord great weight to the children’s
preferences, they are not permitted to stipulate or alter the law. We agree.
Although stipulations are favored and generally upheld by the courts, “a parent may not bargain
away a child’s rights by agreement with a former spouse.” Napora v Napora, 159 Mich App 241,
243; 406 NW2d 197 (1986). Despite a stipulation between the parents, a custodial environment may
not be changed absent clear and convincing evidence that the change is in the “best interests of the
child.” Id. at 246-247. “Parties . . . cannot by agreement usurp the court’s authority to determine
suitable provisions for the child’s best interests.” Lombardo v Lombardo, 202 Mich App 151, 160;
507 NW2d 788 (1993). It is the duty of the trial court to determine the best interests of the child in
resolving disputes affecting the welfare of the child. Id. Such a determination must be made in
accordance with the standards set forth in the law. Where a court does not make specific findings
concerning the best interests factors, as required under the statute, and simply concentrates its decision
on one factor, the matter should be reversed and remanded for a determination of the child’s best
interests in light of all the relevant factors. Id.
We find that the parties’ stipulation essentially precluded the parties from objecting to a change
of custody where the children manifested a sincere desire to live with the noncustodial parent.
However, the stipulation did not obligate the court to order a change of custody based solely on the
agreement. Indeed, a court is not bound by stipulations or agreements concerning child custody.
Sirovey v Campbell, 223 Mich App 59, 82; 565 NW2d 857 (1997). Nor can parties conclusively
agree to apportion child custody without consideration by the court. Id. In fact, a court has the
authority to explicitly reject the parties’ stipulation and proceed to make an independent determination
of the child’s best interests based on the appropriate factors. Id. We do not suggest that a court is
without authority to accept the parties’ agreement, or otherwise accord it great weight, and include it in
its order, as long as the court independently determines, after assessing all the factors, that the
agreement is in the best interests of the child. Koron v Melendy, 207 Mich App 188, 191; 523 NW2d
870 (1994). Thus, while the parties here may have preferred that the court afford great emphasis and
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consideration to the children’s preferences, they cannot limit the court’s consideration of the other
factors. Indeed, the purpose of the best interest factors is to allow the court to assess the overall best
interests of the children in light of the competing interests and needs of the parties. To permit the
parties, by stipulation, to limit the court’s review would nullify the Child Custody Act to the detriment of
the child. For these reasons, we remand this case to the trial court for a thorough consideration of all of
the statutory factors.
Reversed and remanded for actions consistent with this opinion. We do not retain jurisdiction.
/s/ Stephen J. Markman
/s/ Gary R. McDonald
/s/ Mark J. Cavanagh
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