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

revision until final publication in the Michigan Appeals Reports.

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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

KRISTI ANN PALIK,

Plaintiff-Appellee,

UNPUBLISHED

July 6, 2023

v No. 363995

Ontonagon Circuit Court

JEFFREY JAMES PALIK, Family Division

LC No. 2021-000028-DM

Defendant-Appellant.

Before: GLEICHER, C.J., and RICK and MALDONADO, JJ.

PER CURIAM.

This child custody case returns to us following a remand to the trial court.1 On remand, 

the trial court issued an opinion and order affirming its prior custody determination and denying 

defendant’s request for primary physical custody of the children without holding an evidentiary 

hearing or accepting submissions from the parties. By declining to hold an evidentiary hearing or 

accept written submissions, the trial court failed to consider up-to-date information in accordance 

with Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994). Consequently, we must 

again vacate and remand.

I. FACTUAL BACKGROUND

In the prior appeal, this Court summarized the background of the case as follows: 

Plaintiff abruptly left defendant after approximately 10 years of marriage 

and took the parties’ children from the couple’s home in Ontonagon, Michigan, to 

live with her new boyfriend in Grand Marais, Minnesota. She initially lived with 

the children in an RV on property owned by her boyfriend’s father, but that 

arrangement lasted only a short time until she moved into a three-bedroom 

 

1 Palik v Palik, unpublished per curiam opinion of the Court of Appeals, issued September 15, 

2022 (Docket No. 361100).
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apartment with her new boyfriend and the three children. Defendant continued to 

reside in the marital home in Ontonagon. At the time of the separation, defendant 

was employed at a job in which he would work in Wisconsin for eight days then 

have six days off. The initial parenting schedule accommodated defendant’s work 

schedule, having the children reside with plaintiff when defendant was working and 

with defendant when he was off. Prior to and immediately after the separation, the 

children were homeschooled by plaintiff.

In the months following the separation, certain developments led defendant 

to file a motion for primary physical custody. First, defendant discovered that the 

children had significant educational deficiencies. Second, defendant obtained a 

new job that allowed him to stay in Ontonagon full-time. This job came with a 

significant pay-cut, however. Defendant used to earn approximately $70,000 a 

year, but his pay at the new job was about half of that. In light of these 

developments, defendant’s motion requested that he be granted primary physical 

custody, that the children be sent to public school in Ontonagon, and that 

defendant’s child support be decreased to a level commensurate with his decreased 

income.

Ultimately, the court made plaintiff the children’s primary custodian, 

granted defendant parenting time two weekends each month, and ordered that the 

children attend school in Grand Marais, Minnesota. Additionally, the court found 

that defendant’s decision to leave his job and accept such a large reduction in 

income was unreasonable, so it imputed income to him at a level commensurate 

with his prior employment. [Palik v Palik, unpublished per curiam opinion of the 

Court of Appeals, issued September 15, 2022 (Docket No. 361100), p 1.]

On appeal, this Court affirmed the trial court’s ruling regarding the children’s established 

custodial environment, but vacated the court’s best-interest findings. Palik, unpub op at 7. The 

Court explained:

The trial court found that factors a, b, c, e, f, g, and h “favor neither or both 

parents,” but it did not expand on this finding . . . . While it is permissible for a

court to merely state on the record that a factor is irrelevant to its custody 

determination, when it concludes that a factor is relevant, it must make a record 

sufficient for this Court to determine whether the evidence clearly preponderates 

against the trial court’s findings. By not providing any rationale for its finding that 

factors a, b, c, e, f, g, and h favor neither or both parents, the record is not sufficient 

for this Court to review the trial court’s findings. [Id., unpub op at 4 (quotation 

marks and citations omitted).]

This Court remanded to the trial court with directions for the court to “make explicit findings under 

each factor, and . . . explicitly state if any factor does not apply.” Id., unpub at 7. On remand, the 

trial court issued an opinion and order making specific factual findings regarding each of the bestinterest factors and denying defendant’s request for primary physical custody of the children 

during the school year without holding an evidentiary hearing or requesting submissions from the 

parties. This appeal followed.
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II. ANALYSIS

A. FLETCHER VIOLATION

Defendant argues that the trial court erred by failing to consider up-to-date information on 

remand before issuing its revised opinion and order, consistent with Fletcher v Fletcher, 447 Mich 

871; 526 NW2d 889 (1994). We agree.

This Court applies three separate standards of review in custody cases. Vodvarka v 

Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003).

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 a clear 

legal error on a major issue. This Court will not interfere with the trial court’s 

factual findings unless the facts clearly preponderate in the opposite direction. 

Discretionary rulings, including a trial court’s decision to change custody, are 

reviewed for an abuse of discretion. In child custody cases specifically, an abuse 

of discretion retains the historic standard under which the trial court’s decision must 

be palpably and grossly violative of fact and logic. Clear legal error occurs when 

the trial court incorrectly chooses, interprets, or applies the law. This Court reviews 

the trial court’s determination regarding a child’s best interests for clear error. This 

Court gives deference to the trial court’s factual judgments and special deference 

to the trial court’s credibility assessments. [Brown v Brown, 332 Mich App 1, 8-9; 

955 NW2d 515 (2020) (quotation marks and citations omitted).]

When error occurs in a custody case, “an appellate court should remand the case for 

reevaluation, unless the error was harmless[.]” Fletcher, 447 Mich at 889. “[O]n remand, the 

court should consider up-to-date information, including the children’s current and reasonable 

preferences, as well as the fact that the children have been living with [a party] during [an] appeal 

and any other changes in circumstances arising since the trial court’s original custody order.” Id.; 

see also In re Doe, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 353796); slip op 

at 2 (“[i]n general, when considering a child’s best interests for purposes of custody, trial courts 

must consider up-to-date information as of the time of the hearing, whenever that hearing 

occurs.”). The trial court may “hear testimony and observe witnesses, but also may elicit 

testimony, interview children, and invoke other judicial resources to assure a thorough and careful 

evaluation of the child’s best interests.” Id. at 890. In addition, a trial court “should consider all 

the statutory factors and conduct whatever hearings or other proceedings are necessary to allow it 

to make an accurate decision concerning a custody arrangement that is in the best interests of [the 

child].” Ireland v Smith, 451 Mich 457, 468-469; 547 NW2d 686 (1996).

Here, the trial court erred by failing to consider up-to-date information, including the 

children’s current and reasonable preferences and other changes in circumstances on remand, as 

required by Fletcher, 447 Mich at 889, before issuing its revised opinion and order. Accordingly, 

remand is required. On remand, the trial court shall consider up-to-date information submitted by 
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the parties, either through further submissions or during an evidentiary hearing, and use such 

information to make its findings of fact regarding the best-interest factors.2

B. JUDICIAL DISQUALIFICATION

Defendant argues that this case should be heard before a different judge on remand to the 

trial court because the trial court’s failure to consider updated evidence demonstrates that it would 

have difficulty setting aside its previous findings. We disagree.

Because defendant did not raise this issue below or move to disqualify the judge in the trial 

court, the issue is unpreserved. In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 

(2009); MCR 2.003. Unpreserved issues are reviewed for plain error affecting substantial rights. 

In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). “Generally, an error affects substantial 

rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” Id. at 9. “[R]eversal 

is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent 

defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of 

judicial proceedings independent of the defendant’s innocence.” Id. (quotation marks and citations 

omitted; alteration in original).

Under MCR 2.003(B), “[a] judge is disqualified when the judge cannot impartially hear a 

case,” which may include when a “judge is personally biased or prejudiced for or against a party 

or attorney.” However, “[t]he mere fact that a judge ruled against a litigant, even if the rulings are 

later determined to be erroneous, is not sufficient to require disqualification or reassignment.” 

Henry, 282 Mich App at 680. Indeed, “judicial rulings, in and of themselves, almost never 

constitute a valid basis for a motion alleging bias, unless the judicial opinion displays a deep-seated 

favoritism or antagonism that would make fair judgment impossible and overcomes a heavy 

presumption of judicial impartiality.” Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 

597; 640 NW2d 321 (2001) (quotation marks citations omitted).

It bears noting that this Court already addressed the issue of whether this case should be 

reassigned to a different trial court judge on remand in defendant’s prior appeal, and concluded 

that reassignment was not required. Palik, unpub op at 7. This Court rejected this argument 

because the fact that the trial court judge erroneously ruled against father was not sufficient to 

require disqualification or reassignment. Id., citing Henry, 282 Mich App at 680. Further, this 

Court stated that “[p]arties are not entitled to a new judge simply because the judge made some 

errors in ruling on legal or factual matters.” Palik, unpub op at 8. Defendant’s instant argument 

regarding judicial disqualification is fundamentally the same as that which was raised in the prior 

appeal. Defendant essentially argues that the trial court’s error in failing to consider updated 

evidence shows that the trial court is biased against him and cannot fairly adjudicate this case. But 

defendant fails to allege that the trial court was deliberately biased against him, and there is no 

evidence in the trial court record that the trial court showed actual bias or prejudice. Defendant 

asserts only that the trial court ruled against him twice, and each time the trial court’s rulings were 

 

2

In light of our conclusion that remand is required, we decline to consider defendant’s challenge 

to the trial court’s analysis regarding the best-interest factors under MCL 722.23.
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later determined to be erroneous, which is insufficient to warrant judicial disqualification or 

reassignment. Henry, 282 Mich App at 680. Accordingly, defendant’s claim lacks merit.

III. CONCLUSION

Vacated and remanded for further proceedings consistent with this opinion. We retain 

jurisdiction.

/s/ Elizabeth L. Gleicher 

/s/ Michelle M. Rick 

/s/ Allie Greenleaf Maldonado 
Court of Appeals, State of Michigan

ORDER

Kristi Ann Palik v Jeffrey James Palik

Docket No. 363995

LC No. 2021-000028-DM

Elizabeth L. Gleicher 

Chief Judge

Michelle M. Rick 

Allie Greenleaf Maldonado 

Judges

Pursuant to the opinion issued concurrently with this order, this case is REMANDED for 

further proceedings consistent with the opinion of this Court. We retain jurisdiction. 

Proceedings on remand in this matter shall commence within 56 days of the Clerk’s 

certification of this order, and they shall be given priority on remand until they are concluded. As stated 

in the accompanying opinion, the trial court shall reevaluate whether a change in physical custody is in 

the childrens’ best interests, with reference to up-to-date information in accordance with Fletcher v 

Fletcher, 447 Mich 871; 526 NW2nd 889 (1994). The proceedings on remand are limited to this issue.

The parties shall promptly file with this Court a copy of all papers filed on remand. Within 

seven days after entry, appellant shall file with this Court copies of all orders entered on remand. 

The transcript of all proceedings on remand shall be prepared and filed within 21 days after 

completion of the proceedings. 

_______________________________

Chief Judge

July 6, 2023