Welcome Appellate Judges and Justices!
What you can do will vary depending on whether you are a judge on the Court of Appeals or a justice on the Michigan Supreme Court. But either way, your role is important to family law, and SCAO can help improve the administration of justice.
Thank you to the Supreme Court for working with family law attorneys and family court judges on improving family court plans around the State! Please read the recent memorandum regarding updates to the Family Court Plan Requirements and Guidelines, and the new model family court plan.
Court of Appeals Judges
First.
If you are an appellate court judge, please do not allow trial courts to ignore the law. You have a special role in correcting error, which means not only identifying when the trial judge has not followed the law, but also implementing a remedy when that happens. Too many times, appellate judges will decide that the trial judge made a variety of legal errors, but then conclude that the error was harmless. In cases involving children, there are limited circumstances when legal errors by the trial judge would actually amount to “harmless error.” Think about O’Brien v D’Annunzio, just as one of many examples. The Court of Appeals held the trial judge made multiple errors in its decision-making from the onset of the case, but because the judge eventually held a custody hearing and eventually made the findings required by the Child Custody Act, the Court of Appeals viewed the errors as having been cured, and called it “harmless error.” This is wrong! Starting from the trial judge’s very early mistakes in the case — which changed custody from one parent to the other — the child’s established custodial environment was changing as a direct consequence of those legal errors.
By the time the Supreme Court finally vacated the trial court’s decision (nearly three years after the initial trial judge errors), the children’s established custodial environment has almost certainly changed to the other (previous non-custodial) parent. Changing a child’s established custodial environment cannot be harmless error!
It appears that the Supreme Court is more willing to scrutinize appellate decisions that affirm the trial judge’s child-related decisions on the basis of harmless error. Stay tuned for more on this topic of so-called harmless error, as I plan to explore it more fully in a white paper!
Second.
When appellate judges see trial judges who are “repeat offenders” by not following the law in child-related cases, then it is time to make a bigger statement.
The appellate courts can remand the case to a different judge, which the Supreme Court did in O’Brien and the Court of Appeals did in Jacobs v Jacobs.
Appellate courts can also retain jurisdiction, which means that the appellate court can ensure that the trial judge follows its instructions on remand. Retaining jurisdiction also allows the parties to immediately challenge what happened on remand with supplemental briefing, without having to go through the expense and delay of a new appeal.
You may even need to refer a judge to the Judicial Tenure Commission. Hopefully that will be a rare result. But I predict that if some of these appellate remedies would be imposed more frequently, trial judges would take notice. Attorneys talk and so do judges. When word gets around that the appellate courts are more consistently holding trial judges’ feet to the fire, I predict that more trial judges will do a better job of correctly interpreting and applying the law.
Supreme Court Justices
Third.
If you are a Supreme Court justice, and you see that the Court of Appeals makes a legally incorrect decision in a family law case, don’t just let it slide on the theory that family law cases are “fact specific.” The Supreme Court very rarely weighs in on child-related cases, which means there are lots of appellate decisions, some of them questionable, which are being used by attorneys, trial judges, and appellate judges to maintain the status quo.
Fourth.
The Supreme Court should issue more opinions in family law cases. Too many times, particularly with child-related cases, the Supreme Court has decided a family law case with an order, not an opinion. In fact, the last time the Supreme Court issued an opinion on a substantive child-related issue was in 2024 in the case of Sabatine v Sabatine, 513 Mich 276 (2024). But in the past 20 years, there have only been 10 opinions on child-related family law cases, and only half of those opinions even arose out of the Child Custody Act!
There have been several orders that benefit family law, but orders do not get the attention of the bench and bar as much as opinions do. Moreover, when this Court only speaks through an order, the parties will invariably face a battle in future cases about whether or not that order is precedentially binding.
To your credit, the Supreme Court has issued several opinions in child welfare cases. Starting in 2009, there has been a flurry of Supreme Court activity in the child welfare arena resulting in significant published opinions, including Mason, Rood, and Sanders, to name a few. Having those published opinions has greatly improved the practice of child welfare law. The same should occur with child-related family law cases.
Fifth.
If you are a Supreme Court justice, you should instruct SCAO to do a better job of tracking judges who are being reversed for erroneous family law decisions. This information should be publicly available because voters have the right to know if judges who are elected or retained by voters after an appointment are following the law or not.
State Court Administrative Office
The State Court Administrative Office (SCAO) is the administrative agency of the Michigan Supreme Court. The Michigan Supreme Court has administrative oversight of all state courts through SCAO.
Click here to learn more about SCAO.
Seventh.
If you are on the Supreme Court, then you should appoint family law attorneys to represent that segment in various state bar committees and work groups under the control of the Supreme Court. You should garner input from family law attorneys on issues that will affect families and children, even if only indirectly. Considering how many family law cases occupy the judicial dockets in this state, family law attorneys are woefully underrepresented in important committees and work groups such as the Access to Justice Committee, the Judicial Qualifications Committee and the Michigan Judicial Council. One way to do this is to solicit input from the Family Law Section council, which councilmembers and officers represent a wide range of family law attorneys from many parts of the state and with different types of practice (both private and government). Kudos to the Supreme Court for creating The Task Force on Child Protective Representation and appointing many attorneys with family law and child welfare experience. It is task forces like this with solid representation from all the stakeholders in the system that has a chance of effecting positive change.
Sixth.
If you are a Supreme Court justice, you should actively work with respected family law attorneys to improve court rules that impact families and children. Unlike other practice areas, where attorneys only represent one side of the “v” (personal injury victim versus insurance defendant or tortfeasor; prosecutor versus accused criminal defendant) most family law attorneys represent a variety of litigants. The same attorney might represent a mother in one case, a father in another case, and even serve as the child’s attorney as a court-appointed Lawyer Guardian ad Litem in yet another case. This means that family law attorneys, as a whole, are better equipped to identify and understand the range of problems that families experience in contested custody and child-related litigation.
Eighth.
If you are a Supreme Court justice, you are charged with approving family court plans. Let me tell you, these plans are a mess! Family court is handled differently around the state, so there is no consistency even among similarly-situated counties. These plans have permitted the counties to not have a dedicated family law seat or seats. It has enabled persons running for one position, such as district judge, to then be assigned to the family law seat. It means that in some counties, the family law judge is a probate judge while in other counties, the family law judge is a circuit judge. This means there is no effective way for all of these family law judges to communicate and learn from each other. They don’t even attend the same training programs! And even more curious, in some counties, there is a family law bench where some of them on that bench are circuit court and others are probate – in the same county! Please scrutinize family court plans that are presented to you. Special kudos to the Supreme Court for working with family law attorneys and judges on strengthening family court plans.
