If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

THOMAS J. O’BRIEN, JR.,

Plaintiff-Appellee,

UNPUBLISHED

February 27, 2020

v No. 347830

Oakland Circuit Court

ANN MARIE D’ANNUNZIO, Family Division

LC No. 2004-693882-DC

Defendant-Appellant.

Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

Defendant appeals as of right an order granting plaintiff sole legal and physical custody of 

the parties’ twin children, GDO and IDO. The same order provided no parenting time for 

defendant, subject to periodic review to determine whether reinstituting parenting time would be 

in the children’s best interests. Although we agree with several claims of error raised by defendant 

on appeal, we affirm the trial court’s order because each error was harmless.

I. BACKGROUND

The parties are parents of twin children, but were never involved in a romantic relationship 

with each other. Throughout most of the children’s adolescence, the parties got along and 

effectively coparented their children with little court involvement. However, defendant’s 

relationships with plaintiff and then 13-year-old IDO became strained in the summer and fall of 

2017, prompting the parties to initiate the instant custody dispute. At the time, the parties shared 

legal custody and defendant had physical custody of the children, with plaintiff exercising 

parenting time on one weekday overnight, every other weekend, and alternating holidays.

Plaintiff filed a verified emergency motion for a change of custody, alleging that defendant 

had “a history of losing her temper beyond the point of control,” and that defendant’s recent erratic 

and dangerous behavior constituted a change of circumstances or proper cause to modify custody 

because the children were in “a state of complete emotional upheaval[,] fleeing [defendant’s] 

residence regularly.” Plaintiff identified examples of defendant’s concerning behavior and 

detailed three instances in which the police were called to intervene in confrontations between 

defendant and the children. In response to plaintiff’s motion, defendant alleged that IDO had 
-2-

become increasingly disrespectful toward her since June 2017, particularly with respect to matters 

involving social media, and that plaintiff was using the parties’ contrasting parenting styles to 

undermine defendant’s relationships with the children. Plaintiff’s motion was referred to the 

Friend of the Court (FOC) for a recommendation, and the trial court signed an interim parentingtime order with an approximately equal parenting-time schedule. 

Shortly thereafter, plaintiff filed an ex parte motion to suspend defendant’s parenting time. 

Plaintiff claimed that defendant had continued to engage in alarming behavior, such as chasing 

IDO down the street in a car, having an outburst during a meeting with the FOC custody and 

parenting-time specialist, and attempting to remove the children from school midday. Plaintiff 

alleged that the police had been called two more times and that a Children’s Protective Services 

(CPS) investigation was underway. Plaintiff sought a temporary order suspending defendant’s 

parenting time because the children were “petrified” of defendant and refused to spend time with 

her. The trial court signed an ex parte order granting plaintiff “temporary full-time parenting time”

until the matter could be addressed at the court’s next motion call. The order also barred defendant 

from appearing at the children’s school or initiating contact with the children in any manner.

At the hearing on November 15, 2017, plaintiff’s counsel asked the trial court to adopt a 

recent recommendation from Kathleen Doan, the court’s FOC custody and parenting-time 

specialist, in which Doan recommended that defendant complete a psychological evaluation and 

parenting classes and that the trial court suspend defendant’s parenting time in the interim. 

Consistent with Doan’s recommendation, the trial court continued the order suspending 

defendant’s parenting time in light of the high-conflict state of the case. The children remained 

free to contact defendant at their discretion and plaintiff was ordered not to discourage the children 

from doing so. Defendant had little direct contact with the children throughout the remainder of 

the case.

The court scheduled an evidentiary hearing concerning plaintiff’s motion to modify 

custody in January 2018, but the matter was adjourned when the parties agreed to try to resolve 

the matter with therapeutic counseling outside of court. The parties quickly disagreed about the 

requirements of their stipulated order, so the evidentiary hearing began on March 20, 2018, and 

consisted of nine days of proceedings over the course of eight months. In July 2018, the parties 

again tried to resolve their dispute by agreeing to a specific schedule of parenting-time visits and 

joint counseling sessions with defendant and the children. However, each time defendant had inperson contact with the children, the children were left in a distraught and emotional state. The 

children repeatedly expressed fear and anger toward defendant in counseling and little progress 

was made to repair the relationships between defendant and the children.

Several months after the evidentiary hearings concluded, the trial court issued a lengthy 

opinion regarding the parties’ custody and parenting time. The trial court determined that 

revisiting the parties’ custody arrangement was warranted because the extreme coparenting 

difficulties the parties faced took a high toll on the children and was contrary to their best interests. 

Although the trial court’s discussion of the children’s established custodial environment was 

somewhat ambiguous, it analyzed the matter as though the children had an established custodial 

environment with both parties. Applying a clear and convincing evidence standard, the trial court 

considered each of the statutory best-interest factors, MCL 722.23, citing evidence relevant to each 

factor and concluding that granting plaintiff sole legal and physical custody was in the children’s 
-3-

best interests in light of defendant’s “bizarre and concerning behaviors” and the emotional and 

chaotic environment in which the children lived while in defendant’s care. With respect to 

parenting time, the court held that it was not in the best interests of the children to have parenting 

time with defendant because there was clear and convincing evidence that parenting time would 

further endanger the children’s physical, mental, or emotional health. The court reasoned that 

forcing the children to interact with defendant would only damage, rather than foster, the parentchild relationships. However, “cognizant of the significance of its ruling, and so as not to 

constitute a de facto termination of [defendant’s] parental rights with no review mechanism,” the 

court permitted periodic review hearings to determine whether reinstituting parenting time would 

be in the children’s best interests. This appeal followed.

II. STANDARDS OF REVIEW

In matters involving child custody, “ ‘all orders and judgments of the circuit court shall be 

affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence 

or committed a palpable abuse of discretion or clear legal error on a major issue.’ ” Yachcik v 

Yachcik, 319 Mich App 24, 31; 900 NW2d 113 (2017), quoting MCL 722.28. “Under the great 

weight of the evidence standard, this Court should not substitute its judgment on questions of fact 

unless the facts clearly preponderate in the opposite direction.” Shade v Wright, 291 Mich App 

17, 21; 805 NW2d 1 (2010). The trial court’s ultimate decision to change custody is reviewed for 

an abuse of discretion, which exists in the context of child custody disputes “ ‘when the result is 

so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance 

of judgment, or the exercise of passion or bias.’ ” Yachcik, 319 Mich App at 31, quoting Sulaica 

v Rometty, 308 Mich App 568, 577; 866 NW2d 838 (2014). Questions of law are reviewed for 

clear legal error, which occurs when the trial court “incorrectly chooses, interprets, or applies the 

law.” Sulaica, 308 Mich App at 577. In addition, this Court reviews a trial court’s discovery 

rulings for an abuse of discretion. Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 

77 (2011).

III. PROCEDURE FOR MODIFYING CHILD CUSTODY

Defendant first argues that the trial court erred by effectively granting plaintiff custody on 

November 15, 2017, without complying with the procedural requirements of the Child Custody 

Act, MCL 722.21 et seq. In a related argument, defendant also takes issue with the trial court’s 

reliance on an FOC recommendation in ruling on defendant’s January 2018 motion to restore her 

custodial rights. We agree, in part, but conclude that the trial court’s procedural error was 

harmless.

“As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time 

order, the moving party must first establish proper cause or a change of circumstances before the 

court may proceed to an analysis of whether the requested modification is in the child’s best 

interests.” Lieberman v Orr, 319 Mich App 68, 81; 900 NW2d 130 (2017). This Court announced 

the threshold requirements a party seeking a change of custody must satisfy in Vodvarka v 

Grasmeyer, 259 Mich App 499, 512-514; 675 NW2d 847 (2003):

[T]o establish “proper cause” necessary to revisit a custody order, a movant must 

prove by a preponderance of the evidence the existence of an appropriate ground 
-4-

for legal action to be taken by the trial court. The appropriate ground(s) should be 

relevant to at least one of the twelve statutory best interest factors, and must be of 

such magnitude to have a significant effect on the child’s well-being. When a 

movant has demonstrated such proper cause, the trial court can then engage in a 

reevaluation of the statutory best interest factors.

* * *

[I]n order to establish a “change of circumstances,” a movant must prove that, since 

the entry of the last custody order, the conditions surrounding custody of the child, 

which have or could have a significant effect on the child’s well-being, have 

materially changed. Again, not just any change will suffice, for over time there will 

always be some changes in a child’s environment, behavior, and well-being. 

Instead, the evidence must demonstrate something more than the normal life 

changes (both good and bad) that occur during the life of a child, and there must be 

at least some evidence that the material changes have had or will almost certainly 

have an effect on the child. This too will be a determination made on the basis of 

the facts of each case, with the relevance of the facts presented being gauged by the 

statutory best interest factors.

If the trial court determines that proper cause or a change of circumstances has been 

established, it must then consider whether the proposed change is in the best interests of the child. 

Lieberman, 319 Mich App at 83. “In matters affecting custody, when the child has an established 

custodial environment with each parent, the movant must prove by clear and convincing evidence 

that the proposed change is in the best interests of the child.” Id. at 83-84. Custody decisions, as 

well as parenting-time decisions that would alter the child’s established custodial environment, 

require findings under all of the statutory best-interest factors. Id. at 84. “An evidentiary hearing 

is mandated before custody can be modified, even on a temporary basis.” Grew v Knox, 265 Mich 

App 333, 336; 694 NW2d 772 (2005).

Defendant asserts that the trial court erred by failing to comply with these procedural 

requirements before granting plaintiff full-time parenting time in November 2017. We agree. On 

November 6, 2017, while plaintiff’s motion to change custody was pending, the trial court signed 

an ex parte order suspending defendant’s parenting time. The court heard oral arguments 

concerning plaintiff’s emergency motion to suspend defendant’s parenting time on November 15, 

2017. At the conclusion of the brief hearing, the trial court signed an order continuing the 

suspension of defendant’s parenting time and ordering that plaintiff “have the children full-time.” 

Although the trial court framed its order in terms of parenting time only, the complete suspension 

of defendant’s parenting time had the effect of modifying physical custody of the children because 

it gave plaintiff complete physical care and supervision of the children while the order remained 

in effect, where physical custody had previously been vested in defendant. See Lieberman, 319 

Mich App at 79-80 (describing physical custody). Because the trial court’s order modified the 

children’s custody, the court was required to first hold an evidentiary hearing and make the 

findings detailed above, which it did not do. This was a clear error of law. Nonetheless, the trial 

court’s error was harmless under these circumstances. Fletcher v Fletcher, 447 Mich 871, 889; 

526 NW2d 889 (1994) (“[U]pon a finding of error, appellate courts should remand to the trial court 

unless the error was harmless.”).
-5-

In its later opinion following the evidentiary hearings, the trial court found proper cause or 

a change of circumstances based upon the breakdown of the parties’ ability to coparent that 

occurred before plaintiff filed his motion for change of custody, which the court reasoned had 

taken “an increasingly high toll on the children, their health, and [was] contrary to their best 

interests.” Because the trial court’s opinion makes it clear that it considered whether the 

circumstances that existed before November 2017 warranted revisiting the custody order, there is 

no reason to believe that the trial court would have reached a different result if it had considered 

this issue before entry of the November 15, 2017 order that effectively granted plaintiff physical 

custody.

In arguing that the trial court’s procedural error was not harmless, defendant contends that 

the suspension of her parenting time resulted in a “judicially engineered . . . new established 

custodial environment” and “invariably affected all of the future proceedings in this case.” We 

disagree. “An established custodial environment exists ‘if over an appreciable time the child 

naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, 

and parental comfort.’ ” Yachcik, 319 Mich App at 47, quoting MCL 722.27(1)(c). “The age of 

the child, the physical environment, and the inclination of the custodian and the child as to 

permanency of the relationship shall also be considered.” MCL 722.27(1)(c). The existence of an 

established custodial environment affects the burden of proof imposed on the party seeking a 

change in custody as it relates to the best interests of the child. Griffin v Griffin, 323 Mich App 

110, 119-120; 916 NW2d 292 (2018). Although the trial court’s opinion is somewhat 

contradictory in its discussion of the children’s established custodial environment, the court 

applied the higher clear and convincing evidence burden of proof that applies when the established 

custodial environment will be altered by the court’s order. See id. at 119. Because the trial court 

applied the highest burden of proof applicable to plaintiff’s motion, any effect the court’s 

procedural error had on the established custodial environment was harmless. See Kubicki v 

Sharpe, 306 Mich App 525, 541; 858 NW2d 57 (2014) (failure to articulate established custodial

environment findings was harmless where trial court applied clear and convincing evidence 

standard).

Turning to defendant’s contention that the court’s procedural error tainted the later 

proceedings, defendant failed to expand upon this conclusory argument. “It is well established 

that [a] party may not merely announce a position and leave it to this Court to discover and 

rationalize the basis for the claim.” Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001) 

(quotation marks and citation omitted; alteration in original). As such, this Court need not address 

it. Id. Defendant’s position lacks merit at any rate because the trial court followed the appropriate 

framework for modifying custody in its opinion, albeit well after it first granted plaintiff physical 

custody on a temporary basis. That is, after finding that it was appropriate to revisit the issue of 

custody, the court determined the applicable burden of proof on the basis of the children’s

established custodial environment, and proceeded to conduct an in-depth analysis of the statutory 

best-interest factors. See Lieberman, 319 Mich App at 79-84.

Furthermore, while the trial court’s opinion references and relies upon a number of events 

that occurred after it temporarily granted plaintiff physical custody, it is evident that the bestinterest factors the court found most important were Factors (a), (j), and (l), and the court’s 

emphasis on those factors would still have been supported around the time plaintiff originally 

sought suspension of defendant’s parenting time. Factor (a) considers “[t]he love, affection, and 
-6-

other emotional ties existing between the parties involved and the child.” MCL 722.23(a). In 

pertinent part, the trial court found that Factor (a) greatly favored plaintiff because, despite the 

love both parents felt for the children, defendant’s actions “produced significant conflict and 

impacted the existing emotional ties between her and the children.” Had the trial court held an 

evidentiary hearing before modifying the custody arrangement on a temporary basis, this finding 

would still have been supported by evidence of the events that occurred in the fall of 2017. By 

that time, the relationship between defendant and IDO had already deteriorated to the point that 

IDO was running away from defendant’s home in fear of defendant’s antics, clearly evincing a 

breakdown in the emotional ties IDO felt toward defendant. Although the discord between 

defendant and GDO was less severe, GDO’s protective attitude toward his twin sister apparently 

caused him to resent defendant’s treatment of IDO and to similarly reject voluntary contact with 

defendant. For instance, there was evidence that GDO locked himself in a friend’s house with 

IDO on August 24, 2017, to avoid defendant and that he refused to leave the school with defendant 

on more than one occasion that fall. In comparison, while defendant clearly disagreed with many 

of plaintiff’s parenting decisions, it appears undisputed that the children felt great love, affection, 

and emotional ties with plaintiff, further supporting the trial court’s finding that Factor (a) favored 

plaintiff.

Factor (j) addresses “the willingness and ability of each of the parties to facilitate and 

encourage a close and continuing parent-child relationship between the child and the other 

parent . . . .” MCL 722.23(j). The trial court determined that this factor overwhelmingly favored 

plaintiff because defendant “actively wage[d] acrimonious campaigns designed to alienate the 

children both from her and from [plaintiff],” while believing that plaintiff was responsible for 

turning the children against her. The court also found that defendant was unwilling to facilitate a 

relationship between the children and plaintiff. Again, the trial court could have reached these 

same findings if it had considered the matter at or near the time it granted plaintiff physical custody. 

Focusing on the fall of 2017, there was evidence that defendant placed a calling restriction on the 

children’s phones so that they were unable to directly call plaintiff and that plaintiff’s phone 

number was placed on a “watch list” that alerted defendant when GDO was communicating with 

plaintiff. Because of these restrictions, IDO was forced to communicate with plaintiff through 

social media applications and it is unclear whether GDO, who was not using social media at the 

time, had any contact with plaintiff while in defendant’s care. Defendant’s interference with the 

children’s ability to communicate with plaintiff, even in the face of a court order requiring that the 

children have access to their phones to communicate with the noncustodial parent, supports that

trial court’s finding that defendant was unwilling to facilitate plaintiff’s relationships with the 

children. Furthermore, defendant’s response to plaintiff’s motion for change of custody was 

riddled with criticism and attempts to portray plaintiff as the source of the family’s problems, and 

defendant’s belief that plaintiff was at fault for the family discord continuously pervaded her 

testimony about the fall of 2017. In contrast, plaintiff testified that he consistently consulted the 

children about whether they wanted to begin repairing their relationships with defendant, 

reminding them that defendant loved and missed them, and the trial court found plaintiff’s 

testimony highly credible. Thus, the trial court’s finding that Factor (j) favored plaintiff would 

have been supported had the trial court addressed the matter earlier in compliance with the 

procedural requirements of the Child Custody Act.
-7-

Factor (l) permits the trial court to consider any other factor relevant to the dispute. MCL 

722.23(l). Under this factor, the trial court relied on several concerning attributes of the case: (1) 

defendant’s failure to appreciate the emotional damage her actions were inflicting upon the 

children; (2) defendant’s decision to “publically humiliate” GDO by adding the phrase “ur mom”

to his Xbox gaming account, which was visible to the public; (3) defendant’s act of leaving an 

FOC meeting to drive to the children’s school in an attempt to remove them from class in the 

middle of the day; (4) defendant’s “somewhat concerning and bizarre” messages to plaintiff; (5) 

the fact that defendant’s “intentionally antagonistic, spiteful, and emotionally damaging behavior”

inflamed the familial conflict; (6) that plaintiff had to seek therapy to obtain tools to better handle 

defendant’s behavior over the years; and (7) a variety of matters noted in the children’s 2015 

counseling records. Again, the majority of the additional considerations that the trial court 

addressed under Factor (l) were present to some degree at the time the court temporarily granted 

plaintiff physical custody. As noted by the trial court, a CPS investigator testified that she would 

have substantiated a complaint for emotional abuse in November 2017 had the children remained 

in defendant’s care. Defendant went to the children’s school to remove them from class after the 

second meeting with Doan in November 2017. With respect to defendant’s concerning messages 

to plaintiff, the trial court cited messages admitted as defendant’s Exhibit 19 and plaintiff’s Exhibit 

P, which were exchanged in June 2017 and September 2017, respectively. Plaintiff’s therapist 

testified that she had been working with plaintiff for more than 10 years to help him learn ways to 

effectively communicate with defendant. Finally, although the trial court quoted extensively from 

the children’s 2018 counseling records, that fact alone does not undermine the strength of the trial 

court’s other findings concerning matters that existed in the fall of 2017.

Defendant also takes issue with the trial court’s reliance on a referee recommendation to 

resolve her January 2018 motion to restore her custodial rights. Defendant contends that the

recommendation was the product of a meeting between the referee, Doan, and the parties’

attorneys, which the parties were not allowed to attend. Defendant argues that the trial court 

blindly accepted the recommendation in open court without making any findings concerning 

proper cause, the children’s established custodial environment, or the best-interest factors.

Defendant’s argument mischaracterizes the record. On January 17, 2018, two motions 

were before the court for hearing: plaintiff’s show cause motion concerning defendant’s violations 

of the court’s earlier orders and defendant’s motion to restore her custodial rights. The parties 

sought several forms of relief in their respective motions. After the parties’ attorneys met with a 

referee in private, the trial court opened the hearing by noting that there were three different 

recommendations from the referee. The first recommendation concerned the children’s 

counseling, which defense counsel had no objection to. The second recommendation related to 

recalculating child support, with which defense counsel similarly expressed satisfaction. The third 

recommendation concerned the transfer of GDO’s gaming account. The trial court overruled 

defendant’s objections concerning the gaming account and affirmed an earlier order requiring 

defendant to transfer the account to GDO. No further recommendations were referenced by the 

trial court or the parties, and defendant has not presented any evidence to the contrary. Thus, while 

the trial court did resolve some of the ancillary matters involved in the motions by relying primarily 

on the referee’s recommendation, those issues did not involve custody or parenting time and, thus, 

did not require findings regarding proper cause, the established custodial environment, or the bestinterest factors. 
-8-

Furthermore, at the same hearing, the trial court acknowledged that defendant’s motion to 

restore her custodial rights presented a strong argument that should be addressed at an evidentiary 

hearing. To that end, the trial court scheduled a hearing to take place two days later, at which time 

custody and parenting time would be addressed. Although the evidentiary hearing was ultimately 

adjourned, the adjournment was entered at the request of the parties. Extensive testimony was 

later taken, and the trial court made detailed findings in support of its final order granting plaintiff 

sole legal and physical custody. Accordingly, defendant’s argument is unsupported by the record.

IV. ADMISSIBILITY OF EVIDENCE SUPPORTING THE TRIAL COURT’S RULINGS

Defendant next argues that the trial court erred by basing its decisions on ex parte 

communications and inadmissible evidence. Again, we agree, in part, but find the trial court’s 

error harmless in the context of this case.

Defendant argues that the trial court erred by considering ex parte communications with 

Doan. Defendant’s argument is fundamentally flawed because an ex parte communication is “[a] 

communication between counsel or a party and the court when opposing counsel or party is not 

present.” Black’s Law Dictionary (11th ed). Because Doan was neither a party nor counsel in this 

matter, the trial court’s private communication with Doan does not constitute ex parte 

communication. Furthermore, this Court has held that the trial court may consider an FOC report 

“as an aid to understanding the issues to be resolved.” Harvey v Harvey, 257 Mich App 278, 292; 

668 NW2d 187 (2003). The trial court’s August 14, 2018 order directing Doan to consult with the 

children’s counselor, Kaca Popovic, for the purpose of submitting a recommendation for continued 

reunification efforts was not improper, as the Child Custody Act permits the court to “[u]tilize 

community resources in behavioral sciences and other professions in the investigation and study 

of custody disputes and consider their recommendations for the resolution of the disputes,” MCL 

722.27(1)(d), and “[t]ake any other action considered to be necessary in a particular child custody 

dispute,” MCL 722.27(1)(e). As the children’s treating counselor, Popovic undoubtedly had 

significant insight on the children’s progress and should have been a neutral source of 

information.1

That being said, the portion of the trial court’s order enjoining Popovic and Doan from 

“discussing or disclosing the contents of their communication to counsel or the parties,” is more 

problematic. Section 7a of the Friend of the Court Act, MCL 552.501 et seq., provides that 

[a] copy of each report, recommendation, and any supporting documents or a 

summary of supporting documents prepared or used by the friend of the court or an 

employee of the office shall be made available to the attorney for each party and to 

each of the parties before the court takes any action on a recommendation by the 

office. [MCL 552.507a(1).]

 

1 At the time the trial court signed the August 14, 2018 order directing Doan to consult with 

Popovic, it had no reason to believe that Popovic harbored bias against either party. However, 

Popovic later admitted that she was biased against defendant as a result of an explosive joint 

counseling session that took place later that month.
-9-

Similarly, MCR 3.210(C)(6) directs the trial court to give the parties an opportunity to review and 

file objections to a report submitted by the FOC before a decision is made. Given these mandates, 

the trial court committed clear legal error by precluding disclosure of the recommendation to the 

parties.

However, the trial court’s error does not require appellate relief because it was harmless. 

Fletcher, 447 Mich at 889. Although the trial court’s communication with Doan does not 

constitute ex parte communication, the dangers inherent in ex parte communications bear 

consideration. Cheesman v Williams, 311 Mich App 147, 162; 874 NW2d 385 (2015) stated:

In Grievance Administrator v Lopatin, 462 Mich 235, 262-263; 612 NW2d 120 

(2000), our Supreme Court discussed the danger of ex parte communications:

“Ex parte communications deprive the absent party of the right to respond and be 

heard. They suggest bias or partiality on the part of the judge. Ex parte 

conversations or correspondence can be misleading; the information given to the 

judge ‘may be incomplete or inaccurate, the problem can be incorrectly stated.’ At 

the very least, participation in ex parte communications will expose the judge to 

one-sided argumentation, which carries the attendant risk of an erroneous ruling on 

the law or facts. At worst, ex parte communication is an invitation to improper 

influence if not outright corruption.” [Quoting Shaman, Lubet & Alfini, Judicial 

Conduct and Ethics (3d ed), § 5.01, pp 159-160.]

These risks are not present in this case because the parties were not deprived the opportunity to 

respond and be heard. At a hearing on September 13, 2018, the trial court told the parties that 

Doan and Popovic recommended that the children needed “a break,” with defendant “out of the 

picture” for a while, perhaps until the end of the school semester. Both parties had an opportunity 

to advise the court about their respective perceptions of the parties’ recent attempts to restore 

parenting time and engage in joint counseling, and both parties had previously elicited testimony 

from Popovic about her counseling techniques. Lastly, defense counsel opposed the 

recommendation at the hearing, arguing that the continued separation of the children from 

defendant was making the situation worse. Thus, the trial court did not make the decision to 

resume the evidentiary hearing in lieu of ordering a specific counseling and parenting-time 

schedule based solely on one-sided communication.

Defendant also challenges the trial court’s reliance on certain evidence in its final opinion 

and order, namely, text messages that were not properly before the court and the court’s in camera

interview with the children. The text messages that defendant challenges were included in a 

motion filed by plaintiff after the evidentiary hearings concluded. It is notable that while the 

motion was never heard by the trial court, defendant filed a response to the motion in which she 

admitted sending the messages, disputing only the negative implications plaintiff attached to the 

messages. Assuming, without deciding, that the trial court’s reference to these messages in its 

opinion was improper under these circumstances, we disagree with defendant’s assertion that the 

trial court “extensively relied” on the messages to reach its decision regarding custody and 

parenting time.
-10-

The trial court conducted an in-depth analysis of the best-interest factors, citing specific 

evidence and findings as to each factor, including Factor (l), which serves as a catch-all provision 

permitting consideration of any factor the court deems relevant. It was only after the court 

concluded its analysis of the best-interest factors that it noted, almost as an aside, the messages 

submitted with plaintiff’s motion after the evidentiary hearings. Thus, it does not appear that the 

trial court considered the messages in the context of its best-interest analysis, which is what 

ultimately controls all important decisions regarding the children involved in a custody dispute. 

See MCL 722.25(1) (stating that the best interests of the child control in custody disputes); Pierron 

v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010) (“[W]hen the parents cannot agree on an 

important decision . . . the court is responsible for resolving the issue in the best interests of the 

child.”). Moreover, the court cited the messages as evidence that defendant took no responsibility 

for her actions, believed that plaintiff was at fault for the situation, and failed to acknowledge or 

internalize the basis for IDO’s adverse feelings toward her. Even if the court had not referred to 

the messages in its opinion, it could have reached the same conclusion from other evidence 

presented at the evidentiary hearings and cited throughout its opinion.

Turning to defendant’s challenge regarding the trial court’s in camera interview of the 

children, defendant contends that the trial court improperly used the in camera interview for factfinding. We disagree. Under MCL 722.23(i), the reasonable preference of a child involved in a 

custody dispute is a factor that must be considered in the court’s best-interest analysis if the court 

determines that the child is of sufficient age to express a preference. Kubicki, 306 Mich App at 

544-545. The trial court can discern the child’s preference during an in camera interview, as long 

as the interview is limited “to a reasonable inquiry of the child’s parental preference.” Molloy v

Molloy, 247 Mich App 348, 351; 637 NW2d 803 (2001), vacated in part on other grounds 466 

Mich 852 (2002). See also MCR 3.210(C)(5) (permitting private interview with child focused on 

child’s reasonable preference). While the interview cannot be used for fact-finding, it also “should 

not take place in a vacuum[.]” Thompson v Thompson, 261 Mich App 353, 365; 683 NW2d 250 

(2004), quoting Molloy, 247 Mich App at 353 (quotation marks omitted). Indeed, the trial court 

should make inquiries “to test the authenticity, the motives, and the consistency of the preference.” 

Molloy, 247 Mich App at 353. The trial court “must state on the record whether children were 

able to express a reasonable preference and whether their preferences were considered by the court,

but need not violate their confidence by disclosing their choices.” Fletcher v Fletcher, 200 Mich 

App 505, 518; 504 NW2d 684 (1993), rev’d in part on other grounds 447 Mich 871 (1994).

Apart from noting that an in camera interview occurred, during which the children 

appeared “grounded,” the trial court’s only discussion of the interview was in the context of 

analyzing Factor (i). With respect to that factor, the court stated only that it interviewed the 

children, “found their statements credible and compelling,” and “considered their preference and 

statements in its deliberations.” Thus, even if the court heard extraneous information in the course 

of testing the reasonableness of the children’s preferences, there is simply no indication that it 

asked the children questions outside the permissible scope of the interview or considered 

extraneous information in evaluating the other best-interest factors. See Thompson, 261 Mich App 

at 365-366.
-11-

V. DISCOVERY

Next, defendant argues that the trial court erred by denying her requests to compel 

production of plaintiff’s social media posts, the user names and passwords for the children’s social 

media accounts, and the raw test data from the psychological evaluations of the parties and 

children. We agree, in part, but again find that the trial court’s error was harmless.

“It is well settled that Michigan follows an open, broad discovery policy that permits liberal 

discovery of any matter, not privileged, that is relevant to the subject matter involved in the 

pending case.” Augustine, 292 Mich App at 419. “However, a trial court should also protect the 

interests of the party opposing discovery so as not to subject that party to excessive, abusive, or 

irrelevant discovery requests.” Cabrera v Ekema, 265 Mich App 402, 407; 695 NW2d 78 (2005). 

Defendant alleged that she should be allowed access to the children’s social media accounts 

because the children’s state of mind, as well as their social media use, was central to the parties’

dispute. Although the trial court did not articulate its reason for denying defendant’s request, we 

cannot conclude that the trial court’s ruling amounted to an abuse of discretion because there was 

evidence that defendant had abused similar access in the recent past. Defendant had access to 

GDO’s Xbox gaming account for several months because it was associated with her personal 

Microsoft account. Before giving GDO the information needed to access the account at plaintiff’s 

house, defendant added the phrase “ur mom” to GDO’s publically accessible profile information. 

The trial court characterized defendant’s action as “highly concerning” in that defendant chose to 

“publically humiliate” GDO. Given this finding, it is not difficult to infer the trial court denied 

defendant’s request for access to the children’s social media accounts to prevent defendant from 

abusing the access. Despite Michigan’s broad discovery policy, the trial court did not err by 

denying a request that could be used for abusive purposes, particularly when the parties presented 

ample evidence from which the children’s state of mind could be discerned, including, most 

notably, the children’s counseling records. Id. 

Furthermore, defendant’s contention that the children’s accounts were relevant because 

“the children’s access and use of social media was a prime issue of contention between the parties,”

is misplaced. Although defendant’s discipline related to social media may have been a catalyst for 

the breakdown of defendant’s relationship with IDO, the issue before the court was whether 

modification of the parties’ custody arrangement was in the children’s best interests. Regardless 

of whether defendant’s disciplinary measures were appropriate or whether the children’s feelings 

about defendant were objectively reasonable, the evidence demonstrated that the children had an 

honest and deep-set fear of defendant such that continuing the previous custody arrangement was 

no longer in their best interests.

With respect to defendant’s request for copies of plaintiff’s social media posts, defendant 

alleged that the posts might demonstrate that plaintiff had been alienating the children against 

defendant. On appeal, defendant contends the materials were relevant to plaintiff’s state of mind 

about defendant, the children, and the custody dispute. Despite the limited relevance asserted by 

defendant, defendant sought all of plaintiff’s social media posts for “the last year,” without 

attempting to narrow the scope of the request to posts that related to defendant, the children, or the 

custody dispute. As such, the trial court could have reasonably determined that defendant’s request 

improperly sought excessive discovery. Id. More importantly, the trial court reviewed plaintiff’s 

posts in camera and determined that none of the materials were relevant to the custody dispute. 
-12-

Thus, even if the trial court had permitted discovery of plaintiff’s social media posts, it is 

improbable that the court would have permitted admission of the posts at the evidentiary hearing.

Defendant also alleges that the trial court erred by denying her request to compel 

production of the raw data upon which FOC psychologist Linda Green relied to reach the opinions 

outlined in her psychological report. Defendant filed an emergency motion to compel the raw 

data, alleging that it was discoverable under MCR 3.218(B) and the trial court’s order referring 

the family for psychological assessment, which designated information relied on by the expert as 

nonconfidential. The trial court denied defendant’s motion without explanation.

Under MCR 3.218(B)(1), the FOC must give parties and attorneys of record access to 

nonconfidential records. MCR 3.218(A)(1) defines “records” as “any case-specific information 

the [FOC] office maintains in any media[.]” As a psychologist employed by the FOC, Dr. Green 

would be subject to the requirements of MCR 3.218. Given the plain language of these rules, we 

agree that the trial court erred by denying defendant’s motion to compel production of the raw test 

data, as the data was “case-specific” and requested by defendant’s attorney of record.

Defendant also argues that the trial court exacerbated this error by barring defense counsel 

from eliciting testimony about the raw data when Dr. Green testified at the evidentiary hearing. 

Defense counsel asked Dr. Green about defendant’s specific results on four individual scales from 

the Minnesota Multiphasic Personality Inventory II (MMPI-II) test.

2

 Dr. Green indicated that she 

did not have the raw data available during her testimony, but that all of defendant’s clinical scales 

were within normal limits, which meant that defendant’s results reflected trends, rather than 

clinical syndromes. Dr. Green also relied on “other validating information,” such as defendant’s 

history, documentation, and input from other professionals, to characterize the trends reflected in 

the test results. When Dr. Green refused to read aloud the “complete computer printout . . . about 

[defendant’s] personality profile,” the trial court rejected defense counsel’s objection, reasoning 

that Dr. Green was the expert on how to interpret the data. The court concluded that counsel could 

“ask [Dr. Green] what she used, but I’m not going to get into the raw data.” With respect to 

plaintiff’s test results, Dr. Green agreed that some of plaintiff’s validity scales were elevated, but 

not to a point that would render plaintiff’s profile invalid.

Because Dr. Green testified as an expert in psychology, the admissibility of her testimony 

was governed by MRE 702, which provides:

If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion or otherwise if 

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product 

of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

 

2 According to Dr. Green’s report, the MMPI-II is a “self-administered standardized psychometric 

test of adult personality and psychopathology.” 
-13-

By limiting defense counsel’s inquiry into the data upon which Dr. Green relied, the trial court 

improperly limited defendant’s ability to test the reliability of Dr. Green’s expert opinion.

Although the trial court abused its discretion in this regard, this Court must affirm the trial 

court’s order granting plaintiff physical and legal custody unless the trial court “made findings of 

fact against the great weight of evidence or committed a palpable abuse of discretion or a clear 

legal error on a major issue.” MCL 722.28. Even when such an error occurred, appellate relief 

should not be granted if the error was harmless. Fletcher, 447 Mich at 889. The trial court’s error 

was ultimately harmless because the trial court did not place particular emphasis on Dr. Green’s 

report or opinion. The parties’ psychological profiles were most relevant to best-interest Factor 

(g) (mental and physical health of the parties), MCL 722.23(g), and the trial court did not find Dr. 

Green’s reiteration of defendant’s self-reported mental health history dispositive, nor did the court 

refer to either party’s psychological profiles in its analysis. The only other time the trial court 

cited Dr. Green’s report or opinion was in the context of Factor (b) (capacity and disposition to 

provide love, affection, and guidance and to continue education and raising of child in his or her 

religion or creed, if any), MCL 722.23(b). With respect to that factor, the trial court noted Dr. 

Green’s opinion that defendant’s capacity to give love, affection, and guidance was hindered by 

her “unpredictable and intimidating reactions,” which resulted in “fragile attachments, withdrawal, 

mistrust, and anxiety.” Outside of Dr. Green’s opinion, the record was replete with examples of 

defendant’s extreme reactions to conflicts with plaintiff and the children. Furthermore, the 

children’s diminished relationships with and feelings toward defendant were at the heart of the 

custody dispute. Given the ample evidence regarding these matters, the trial court’s repeated 

comments about the way defendant’s behavior affected the children, and the court’s minimal 

citation of Dr. Green’s opinion, it is nearly certain that the trial court would have made a similar 

finding under Factor (b) even if defendant had received the raw test data in discovery and been 

permitted to question Dr. Green more closely regarding the same. 

Reviewing the entirety of the trial court’s opinion, it is clear the court was most concerned 

with the implications of each party’s behavior during the proceedings and the manner in which 

that behavior affected the children, rather than the details of the parties’ psychological profiles. 

Thus, even if the trial court had ordered Dr. Green to supply the raw data from the psychological 

testing and permitted defense counsel to question Dr. Green about the same, it is improbable that 

the result of the proceedings would have been different because the tendencies implicated by the 

parties’ psychological profiles did not alter their actual conduct throughout the case or the fact that 

defendant’s actions were having a significant negative effect on the children’s mental and 

emotional well-being. As such, the trial court’s error in this regard does not warrant relief.

VI. BIAS IN ENTERING AND ENFORCING ORDERS

Defendant next contends that the trial court exhibited bias toward her by striking provisions 

in stipulated orders that provided parenting time for defendant, refusing to enforce a stipulated 

order for parenting time, and refusing to appoint a new counselor after Popovic admitted that she 

was biased against defendant. We disagree.

Defendant’s position ignores the fact that the Child Custody Act imposes an affirmative 

obligation on the trial court to “ensure that the resolution of any custody dispute is in the best 

interests of the child.” Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835 (2004). While 
-14-

defendant cites caselaw supporting the general notion that courts must enforce unambiguous 

agreements as written, defendant’s authority is unpersuasive in the context of custody disputes 

because “the deference due parties’ negotiated agreements does not diminish the court’s obligation 

to examine the best interest factors and make the child’s best interests paramount.” Id. at 193. 

Each of the decisions defendant complains of was clearly undertaken in recognition of this rule of 

law.

Although the parties stipulated in January 2018 that defendant could contact the children 

by phone and text message, the trial court struck that provision before signing the order. At that 

time, the children had not communicated with defendant for several months, and defendant had 

yet to engage in any sort of reunification counseling with the children. The trial court’s order did 

not preclude defendant from reconnecting with her children, it merely required that the first contact 

between them occur in a therapeutic setting. The trial court’s later decision to modify an order 

requiring the children to respond to defendant’s phone calls and text messages was similarly 

guided by the best interests of the children. The subject order used mandatory language to describe 

the children’s obligation to respond, and the trial court modified the order to “encourage,” rather 

than require, the children’s cooperation, doing so only after the parties filed motions that made the 

children’s negative responses to the forced contact evident. A month later, the trial court clearly 

articulated that it declined to enforce a stipulated order regarding parenting time because it was 

not convinced that the children were ready to have more contact with defendant after recent 

attempts to force the matter had been disastrous. Finally, despite Popovic’s admission of bias 

toward defendant in October 2018, the trial court declined to appoint a new counselor because the 

children had developed a good rapport with Popovic and were in need of stability and “respite 

from the significant strain and emotional turmoil” caused by the custody dispute. Given the trial 

court’s focus on the well-being and best interests of the children, we cannot conclude that the 

court’s rulings were “so palpably and grossly violative of fact and logic that [they] evidence[] a 

perversity of will, a defiance of judgment, or the exercise of passion or bias.” Yachcik, 319 Mich 

App at 31 (quotation marks and citation omitted).

VII. CHILD CUSTODY RULING

Next, defendant challenges the trial court’s decision to grant plaintiff sole legal and 

physical custody, arguing that the ruling was an abuse of discretion and against the great weight 

of the evidence. We disagree.

Defendant first argues that the trial court abused its discretion by making an unfounded 

credibility determination to insulate its decision from review. We disagree. It is well-accepted 

that appellate courts generally defer to a trial court’s determinations regarding credibility, Elahham 

v Al-Jabban, 319 Mich App 112, 126; 899 NW2d 768 (2017), as the court that hears the testimony 

and observes the witnesses is in a superior position to make that determination, Fletcher, 447 

Mich at 890. However, because factors apart from demeanor and inflection affect credibility, a 

trial court’s credibility determination is not completely shielded from review. Beason v Beason, 

435 Mich 791, 804; 460 NW2d 207 (1990). This Court may scrutinize and reject a credibility 

determination when a witness’s testimony is contradicted by objective evidence or when the 

testimony is “so internally inconsistent or implausible on its face that a reasonable factfinder would 

not credit it.” Id. (quotation marks and citation omitted).
-15-

The trial court found defendant’s testimony “wholly not credible, largely disingenuous, 

and fantastical at best,” noting that it had to repeatedly admonish defendant to answer questions 

directly instead of providing unprompted narratives and that defendant’s testimony was “wildly 

misleading and nonsensical” at times. The trial court also indicated that defendant provided 

combative and evasive responses and that her demeanor over the lengthy series of hearings 

“vacillated between laughing, crying, tense, and calm seemingly independent of anything 

occurring in the courtroom, the question posed to her, or anything about the particular incident 

about which she testified.” While we are unable to evaluate defendant’s demeanor at the hearings, 

the remainder of the trial court’s criticisms are well supported by the record.

For instance, when asked whether she added plaintiff’s phone number to a watch list to 

monitor plaintiff’s communications with GDO, defendant said, “I have a right to see what my 

son’s doing, so I don’t really know.” Defendant also stated that she did not create a watch list and 

did not know what it was. Plaintiff’s counsel confronted defendant with a message from GDO’s 

phone indicating that plaintiff’s phone number had been added to the watch list, which read, “Your 

parent will be notified when you call or text this person.” In response, defendant said she did not 

know how GDO “got that” because he should not have access to the parental controls for 

defendant’s Verizon account. Defendant also reasoned: “I think I have a right to do that as a 

parent. So fine with me.” Later, when pressed about whether she knew that GDO would see that 

she changed his Xbox account profile to include the phrase “ur mom,” defendant began a denial 

before shifting her answer midsentence to say, “Yeah, you know what and I am his mom so there.” 

Plaintiff’s counsel also asked defendant whether she went to the children’s school with her former 

lawyer on the second day of class, and defendant began saying, “You know that we did because 

we were supposed to have—” at which point the trial court asked defendant to answer yes or no. 

Defendant admitted going to the school, but denied asking to take the children out of school early 

because it was her lawyer who made the request. When asked about her plans to relocate after 

selling her home, as required by her judgment of divorce, defendant said, “I just want to have my 

children back in my arms.” Each of these examples of nonresponsive or misleading testimony 

occurred on the first day of the hearing alone, and the trial court had to instruct defendant to answer 

questions directly at least eight times that day. Given the nature of defendant’s testimony that day 

and throughout the remainder of the proceedings, the trial court’s poor view of defendant’s 

credibility appears well grounded.

Defendant contends that the trial court’s perception went against the great weight of the 

evidence because her testimony was corroborated by text messages and over 40 exhibits that the 

trial court failed to consider. We disagree. While many of the text messages do corroborate 

assertions defendant made at the hearings, the matters to which they relate were essentially 

uncontested, such as defendant’s insistence that IDO stop using social media; an inappropriate 

message IDO received from an anonymous person asking for nude photographs; plaintiff telling 

defendant that the children were only comfortable with receiving text message communications 

from her on their birthday; and the numerous text messages defendant sent the children without 

receiving a response. Other exhibits, like defendant’s letter to Doan after their second meeting 

and defendant’s e-mail to plaintiff on February 2, 2018, merely reiterated defendant’s perception 

of events and were contradicted by other evidence. The few exhibits that were particularly 

favorable to defendant’s credibility, such as a June 2017 text message in which plaintiff agreed to 

a family meeting to discuss name calling and other respect issues with the children, were not so 
-16-

persuasive that they would adequately rehabilitate defendant’s credibility and render the trial 

court’s determination contrary to the great weight of the evidence.

Defendant also argues that the trial court erred by focusing on its negative view of 

defendant, without considering any of plaintiff’s actions, expert testimony that both parties were 

at fault, and testimony from several witnesses indicating that defendant was polite, appropriate, 

and did not yell. Defendant is correct that nearly every witness testified that she was appropriate, 

polite, and respectful during their interactions. Defendant’s behavior toward third parties, 

however, is not necessarily indicative of her behavior toward plaintiff and the children. Indeed, 

according to Dr. Green, defendant has “difficulty modulating her response to conflict particularly 

when it involves her family and her children and at those times has been known to have 

exaggerated responding.” (Emphasis added.) Defendant’s other arguments are simply 

unsupported by the record. Contrary to defendant’s assertion that the children’s guidance 

counselor and Dr. Green indicated that both parties were culpable for the custody dispute in this 

case, both witnesses actually testified in general terms, agreeing that both parents typically have 

some level of responsibility for familial conflict. Furthermore, while there was evidence 

suggesting that the children might be negatively impacted if they heard plaintiff express his fear 

of defendant, the evidence that plaintiff did so on a regular basis was far from “uncontroverted.” 

Defendant presented a single recording of the parties’ October 11, 2017 encounter with the police 

in which plaintiff, in IDO’s presence, said he feared defendant. This single instance does not bear 

significant weight in comparison to the balance of the evidence presented to the court. 

Furthermore, while defendant may disagree with the trial court’s findings, the trial court found 

from the totality of the evidence that plaintiff’s actions were generally appropriate and in the best 

interests of the children.

Lastly, defendant argues that the trial court’s findings were flawed because the court did 

not address the best interests of the children individually. This Court has previously explained that 

“in most cases it will be in the best interests of each child to keep brothers and sisters together.” 

Foskett v Foskett, 247 Mich App 1, 11; 634 NW2d 363 (2001), quoting Wiechmann v Wiechmann, 

212 Mich App 436, 440; 538 NW2d 57 (1995) (quotation marks omitted). “However, if keeping 

the children together is contrary to the best interests of an individual child, the best interests of that 

child will control.” Wiechmann, 212 Mich App at 440. Defendant argues that the trial court erred 

by failing to take into account that she had no conflicts with GDO. We disagree.

Even though GDO was not directly involved in the underlying conflicts that caused this 

matter to come before the trial court, the evidence demonstrated that the twin children shared an 

extremely close sibling bond and that GDO felt particularly protective of his sister. Thus, while 

there was no indication that GDO initially had the same volatile relationship with defendant that 

IDO did, GDO still began to distance himself from defendant, going so far as to lock himself inside 

a friend’s home with IDO to avoid defendant. GDO was also presenting as emotional and “burnt 

out” at school. Furthermore, the police officer who spoke with GDO on October 11, 2017, testified 

that GDO was timid, chose his words very carefully, and seemed scared to say what he wanted to. 

GDO remained with defendant that night while IDO stayed with plaintiff and, the very next day, 

GDO went to plaintiff’s home and refused to return to defendant. According to the psychologist 

who briefly treated the children in the fall of 2017, GDO was shut down and “afraid to take a 

stand” because he feared that the same things that happened to IDO would happen to him. The 

animosity GDO felt toward defendant continued to grow in the following months, particularly in 
-17-

the aftermath of defendant’s interference with his gaming account. By June 2018, GDO was 

expressing extreme hatred toward defendant in his counseling sessions with Popovic. In light of 

these facts, the trial court did not err because keeping the children together was consistent with 

GDO’s best interests. Moreover, given the strength of the children’s bond, it is quite probable that 

separating the children would have created yet another hurdle in the path to the children repairing 

their relationships with defendant. See id. at 439-440 (“The sibling bond and the potentially 

detrimental effects of physically severing that bond should be seriously considered in custody 

cases where the children likely have already experienced serious disruption in their lives as well 

as a sense of deep personal loss.”).

VIII. PARENTING-TIME RULING

Next, defendant challenges the trial court’s final order, in which she was granted no 

parenting time. Defendant argues that the ruling was contrary to the statutory presumption that 

parenting time should be granted in a manner that will foster a strong parent-child relationship and 

that the lengthy suspension of her parenting time constitutes a de facto termination of her parental 

rights. We disagree.

MCL 722.27a(1) creates a statutory presumption that it is in a child’s best interests to have 

a strong relationship with both of his or her parents. McRoberts v Ferguson, 322 Mich App 125, 

140; 910 NW2d 721 (2017). To that end, parenting time should be granted “in a frequency, 

duration, and type reasonably calculated to promote a strong relationship between the child and 

the parent granted parenting time.” MCL 722.27a(1). But while a child has a presumed right to 

parenting time, parenting time should not be ordered if “the court determines on the record by clear 

and convincing evidence that parenting time would endanger the child’s physical, mental, or 

emotional health.” Lieberman, 319 Mich App at 80, citing MCL 722.27a(3).

This Court recently addressed an identical argument in Luna v Regnier, 326 Mich App 173, 

183; 930 NW2d 410 (2018). In that case, the father moved to suspend the mother’s parenting time, 

alleging that the children did not want to see the mother and would act out in frustration whenever 

she was mentioned. Id. at 177. The children’s guardian ad litem testified that the children 

struggled with the court-ordered parenting time and would run into the woods to avoid the mother. 

Id. at 178. The children’s negative behaviors toward the mother continued to increase, and the 

children’s counselor believed it would be “beneficial to suspend parenting time because the stress 

and anxiety it caused the children negatively affected their progress on other mental, social, and 

educational issues.” Id.

This Court affirmed the trial court’s suspension of the mother’s parenting time under MCL 

722.27a(3). Id. at 180-183. This Court agreed that forcing parenting time under the circumstances 

“was likely to cause emotional trauma and to drive a wedge further between mother and child, not 

foster a strong relationship.” Id. at 180-181. The mother maintained that the children’s negative 

feelings could not be attributed to her when her contact with them had been limited. Id. at 181. 

This Court agreed with the trial court’s conclusion that forced parenting time would cause 

emotional or mental harm to the children, even if the children’s perceptions regarding the mother 

were unfounded. Id. This Court also rejected the mother’s argument that the father had disparaged 

her in front of the children, noting evidence to the contrary and deferring to the trial court’s 

assessment of the witnesses’ credibility. Id. at 182. Finally, this Court disagreed that the 
-18-

suspension of the mother’s parenting time without reunification therapy was akin to a de facto 

termination of her parental rights, but remanded the matter to the trial court to conduct periodic 

hearings to determine whether resuming parenting time would be in the children’s best interests at 

a later time. Id. at 183.

The facts involved in the instant case are remarkably similar. Much like in Luna, the 

children remained extremely unwilling to engage with defendant throughout the proceedings, 

consistently expressing fear and anger toward her. Defendant raises similar objections to the trial 

court’s ruling, arguing that her continued separation from the children is making matters worse 

and that the dysfunction in their parent-child relationships has been influenced and exacerbated by 

plaintiff. This Court’s rationale in Luna is equally applicable here. Dr. Green opined that the 

children’s reunification with defendant should be a gradual process “interdependent upon 

successful completion of goals, stability of mood, and readiness of the children.” She further 

cautioned that the treatment would not necessarily involve a linear approach and may “ebb and 

flow with the children’s tolerance of anxiety and feelings of safety.” At the last evidentiary 

hearing, Popovic testified that the children continued to harbor feelings of fear and frustration and 

were not ready to resume their relationships with defendant. The court also interviewed the 

children about their custodial preferences and could have reasonably determined that the children’s 

adamant opposition to any contact with defendant remained unchanged. Furthermore, the court 

and parties attempted to force the children to communicate with defendant on more than one 

occasion throughout the proceedings, and each attempt left the children emotionally distraught. 

Regardless of whether the children’s feelings toward defendant were objectively reasonable, the 

evidence demonstrated that their feelings appeared genuine and were so strong that parenting time 

with defendant would endanger their mental or emotional well-being. 

Also like in Luna, while there was some evidence that plaintiff’s behavior could have 

affected the children, plaintiff denied speaking poorly of defendant, repeatedly testified that he 

was open to the children repairing their relationships with defendant, and spoke with the children 

often about whether they were ready and willing to resume contact with defendant. Given the 

substantial similarities between this case and Luna, we likewise conclude that the trial court did 

not abuse its discretion by suspending defendant’s parenting time under MCL 722.27a(3). Id. at 

180-183.

Defendant’s characterization of the trial court’s suspension of her parenting time as a de 

facto termination is also unpersuasive. Defendant exaggerates the record by claiming that she has 

been deprived all contact with the children since November 2017. Although her contact has been 

severely limited, defendant’s assertion is clearly untrue because she engaged in a handful of joint 

counseling sessions with the children and exercised parenting time on at least one occasion. These 

contacts were ultimately counterproductive, but they occurred. Furthermore, while termination of 

parental rights results in a permanent severing of the legal ties between a parent and child, the trial 

court’s suspension of defendant’s parenting time is modifiable, and the trial court explicitly 

incorporated into its final order the periodic review mechanism described by the Luna Court to 

ensure that defendant’s parenting time is restored if and when doing so would serve the best 

interests of the children. Accordingly, the trial court has not terminated defendant’s parental rights.
-19-

IX. REASSIGNMENT ON REMAND

Defendant’s last argument on appeal is that this Court should order reassignment of this 

matter to a different judge on remand. Because we have found no error requiring a remand, we 

need not address defendant’s request. Cassidy v Cassidy, 318 Mich App 463, 510; 899 NW2d 65 

(2017). At any rate, we do not believe reassignment is necessary in this case. Repeated adverse 

rulings, no matter how erroneous, are generally not grounds for disqualification. Bayati v Bayati, 

264 Mich App 595, 602-603; 691 NW2d 812 (2004). Although we can infer from the tone of the 

trial court’s opinion that it developed a strong view of defendant’s culpability in this case, the 

court’s perception does not appear unreasonable. Furthermore, given the length and complexity 

of the lower court proceedings, reassignment would necessarily involve extensive waste of judicial 

resources without a clear indication that such waste is required. See id. Accordingly, we decline 

defendant’s request to order reassignment of this matter.

Affirmed.

/s/ Christopher M. Murray

/s/ David H. Sawyer