Molloy v. Molloy

• Decision Date: 28 November 2001
• Docket Number: Docket No. 224179.
• Citation: 637 N.W.2d 803,247 Mich. App. 348
• Parties: Peter MOLLOY, Plaintiff/Counter-Defendant-Appellee, v. Wendy MOLLOY, Defendant/Counter-Plaintiff-Appellant.
• Court: Court of Appeal of Michigan — District of US

637 N.W.2d 803

247 Mich. App. 348

Peter MOLLOY, Plaintiff/Counter-Defendant-Appellee, v. Wendy MOLLOY, Defendant/Counter-Plaintiff-Appellant.

Docket No. 224179.

Court of Appeals of Michigan.

Submitted April 16, 2001, at Lansing.

Decided September 4, 2001, at 9:00 a.m.

Released for Publication November 28, 2001.

Butzel Long (by James A. Gray, III), Detroit, for the plaintiff.

Judith A. Curtis, Grosse Pointe Park, for the defendant.

Before BANDSTRA, C.J., and HOOD, MARK J. CAVANAGH, SAAD, MARKEY, METER and COOPER, JJ.

COOPER, J.

Pursuant to MCR 7.215(I)(1), this special panel was convened to resolve the conflict between the prior Molloy opinion in this case, 243 Mich.App. 595, 628 N.W.2d 587 (2000), and Hilliard v. Schmidt, 231 Mich.App. 316, 586 N.W.2d 263 (1998).¹ 243 Mich.App. 801 (2001). The original Molloy panel, in compliance with MCR 7.215(I)(1), followed this Court's holding in Hilliard, supra, which held that in camera interviews to determine the reasonable preference of a child whose custody was at issue need not be limited to aiding in the assessment of that factor alone; rather, the interview may encompass any matter relevant to the custody decision. Were it not for the precedential effect of Hilliard, a majority of the Molloy panel would have reversed the trial court's decision under the best interest factors and remanded for a new child custody hearing pursuant to Burghdoff v. Burghdoff, 66 Mich.App. 608, 239 N.W.2d 679 (1976), which held that an in camera hearing should be confined to those matters reasonably necessary to enable the judge to determine the preference of the child.² We resolve this conflict by holding that the purpose and questioning of an in camera interview is limited to determining the child's preference.

In Hilliard, supra, the plaintiff complained that the trial court's in camera interview of the parties' older son, whose custody was not in dispute, violated due process because it went beyond ascertaining their younger son's preference. Our Court noted that to further the predominant concerns of the welfare of a child, "an in camera interview may extend to any matter relevant to the trial court's custody decision." Id. at 321, 586 N.W.2d 263. Hilliard declared that the due process rights of parents in a custody dispute should not be as stringently applied as they are in the termination of parental rights cases. Id. at 319, 586 N.W.2d 263. Rather, Hilliard said that the child was often the best source of candid information regarding the best interest factors, set forth in the Child Custody Act, M.C.L. § 722.23, and that the potential for misuse of a child's recorded statement of preference was greater than the benefit. Hilliard, supra at 320, 326, 586 N.W.2d 263. Hilliard reasoned that children enmeshed in a custody dispute situation should not be further subjected to "the additional distress resulting from cross-examination and testifying before the parents." Id. at 320, 586 N.W.2d 263, citing Lesauskis v. Lesauskis, 111 Mich.App. 811, 815, 314 N.W.2d 767 (1981).

Conversely, our Court in Burghdoff held that "sound policy requires that ... [an in camera ] conference be restricted to those matters reasonably necessary to enable the circuit judge to determine and understand the preference of the child." Burghdoff, supra at 612, 239 N.W.2d 679. Burghdoff declared that questions concerning the moral fitness of the parties were outside the "intent of the conference" and thus improper. Id. at 613, 239 N.W.2d 679. Burghdoff's progeny emphasized the fact that because an in camera conference is limited to the child's preference, and excludes facts irrelevant to that purpose, there is no need to permit counsel's presence or require that the interview be admitted at trial. See Lesauskis, supra at 815-816, 314 N.W.2d 767; Impullitti v. Impullitti, 163 Mich.App. 507, 510, 415 N.W.2d 261 (1987).

After due consideration, we find that a child's in camera interview during custody proceedings must be limited to a reasonable inquiry of the child's parental preference. As stated in the previous Molloy opinion, the purpose of the in camera interview is to lessen the emotional trauma for the child and protect the child from openly having to choose sides. Molloy, supra at 601, 628 N.W.2d 587. However, when the in camera interview is used for fact-finding it invites numerous due process problems. Thus, we are further compelled to mandate that in the future all in camera interviews with children in custody cases be recorded and sealed for appellate review. We also require that the record of these interviews be made available to the parties if the interview affects an additional child custody factor and that information makes a difference in the outcome of the case.

Courts have historically allowed in camera interviews with children in recognition of the emotional trauma felt by a child required to testify in open court or in front of his or her parents.³ Impullitti, supra at 509-510, 415 N.W.2d 261; In re Crowder, 143 Mich.App. 666, 668-669, 373 N.W.2d 180 (1985); Lesauskis, supra at 814-816, 314 N.W.2d 767; Burghdoff, supra at 612-613, 239 N.W.2d 679. However, this enlightened and sensitive focus on the child's well being should not permit courts to ignore issues of fundamental fairness in proceedings affecting a parent's custodial rights. The in camera interview with the child is not meant to be a reliable form of fact-finding. See Molloy, supra.

Studies in child development suggest that the real purpose of an in camera interview is to provide a child with an opportunity to make a "psychological statement ... of how he or she has resolved (or failed to resolve) the inevitable loyalty conflict that divorce and separation creates." Levy, M.D., The meaning of the child's preference in child custody determination, 8 J. of Psychiatry & L. 221, 223 (1980).⁴ We note that many children have difficulty simply expressing their viewpoints. "Even a child mature enough to understand the uniqueness and privacy of his own mind may lack the sophistication to appreciate the conflicts and ambiguity in his views." Buss, Confronting developmental barriers to the empowerment of child clients, 84 Cornell L.R. 895, 928 (1999). A child's viewpoint can also be influenced by a desire not to hurt or offend a parent out of loyalty, fear of reprisal, or a combination of the two. Id. at 943, n. 159. Thus, the proposition that a child, who is going through one of the most emotional and trying experiences in his or her life, can briefly and clearly relate a viewpoint on a custodial preference to a virtual stranger (the judge) may not be realistic.

Assuming arguendo that the child is able to express a preference, the interview should not take place in a vacuum. Inquiry must be made in order to test the authenticity, the motives, and the consistency of the preference. Often a good interview will result in information that affects other child custody factors and therein lies the problem.

I. Due Process

Both the federal and state constitutions guarantee the right to due process of law. U.S. Const., Am. XIV; Const. 1963, art. 1, § 2. "Due process requires fundamental fairness and applies to any adjudication of important rights." Hilliard, supra at 319, 586 N.W.2d 263. However, due process is a flexible concept and only requires the procedural protections that a particular situation warrants. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The three elements that need to be evaluated to decide what due process requires are the importance of the private interests at stake, the government's interest, and the probability that the procedures used would lead to erroneous decisions. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), citing Mathews, supra.

A. Private Interests in Custody Disputes

Hilliard, supra at 319, 586 N.W.2d 263, acknowledges that a parent's custodial rights are an important interest that warrant some form of due process protection. However, Hilliard says that the scope of this due process protection does not extend to information a judge receives regarding the best interest factors during an in camera interview with the child. Id. at 321, 586 N.W.2d 263. In support of its position that due process rights are limited in custody cases, Hilliard cites to Haller v. Haller, 168 Mich.App. 198, 199, 423 N.W.2d 617 (1988), which found that child custody proceedings did not create a due process right to counsel. The rationale behind Haller was that the state was not a party to the action and that its sole interest was to protect the best interests of the child rather than the parent. Haller further suggested that the fact custody decisions were subject to modification did not mandate the stringent due process considerations required in termination of parental rights cases.⁵ Id.

We agree that custody decisions and termination of parental rights are different situations, but find that both necessitate due process of law. While custody decisions are modifiable there is an important liberty interest in the development of the parent-child relationship. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).⁶ The loss of a parent's presence and contribution at each stage of a child's development cannot be compensated for after a modification of custody. Additionally, the standard of proof to be met in order to change an "established custodial environment" prevents change of custody except in the most compelling cases. M.C.L. 722.27(1)(c); see also Ireland v. Smith, 214 Mich.App. 235, 542 N.W.2d 344 (1995). Moreover, there is a difference in a parent's right to counsel in a custody proceeding and the right to fundamental fairness. Despite the existence of counsel, judges are currently allowed to hear all manner of information during an in camera interview and there is no requirement that this information be taken...