7.6Preliminary Hearings

If a petition is accompanied by a request for placement¹ and the child is in temporary custody, the court must hold a preliminary hearing to decide whether to authorize the filing of the petition and whether to place the child outside his or her home. MCR 3.965(A)(1). However, if the petition does not request placement and the child is not in custody, the court may conduct a preliminary inquiry to determine an appropriate course of action. MCR 3.962(A). See Section 7.5 for a more detailed discussion of preliminary inquiries.

“If either the amended^[2] or supplemental petition^[3] [filed under MCR 3.961(C)(1) or MCR 3.961(C)] contains a request for removal, the court shall conduct a preliminary hearing to determine the appropriate action to be taken on the petition consistent with MCR 3.965(B)[, and i]f either the amended or supplemental petition is authorized, the court shall proceed against each respondent parent in accordance with MCR 3.971 or MCR 3.972.”⁴ MCR 3.961(C)(3). However, “[i]f either an amended or supplemental petition [filed under MCR 3.961(C)(1) or MCR 3.961(C)(2)] is not accompanied by a request for placement of the child or the child is not in protective or temporary custody, the court shall conduct a preliminary inquiry to determine the appropriate action to be taken on a petition.” MCR 3.961(C)(3). See Section 7.5 for a more detailed discussion of preliminary inquiries.

A preliminary hearing must commence within 24 hours of a child being taken into protective custody unless the preliminary hearing is adjourned for good cause, or the child must be released.⁵ MCR 3.965(A)(1); MCL 712A.14(2). A preliminary hearing must also commence within 24 hours of the DHHS submitting a petition or by the next business day following submission of the petition where the child was severely physically harmed or sexually abused. MCR 3.965(A)(2).

The use of videoconferencing technology to conduct preliminary hearings is governed by MCR 3.904(B). See Section 1.7.

A.Required Procedures at Preliminary Hearings

1.Notification

The court must determine whether the child’s parent, guardian, or legal custodian received notification of the preliminary hearing and if the child’s lawyer-guardian ad litem is present at the hearing. MCR 3.965(B)(1).

Note: When a child is placed outside the home, notice of the preliminary hearing must be given to the parent of the child soon as it is scheduled. MCR 3.920(D)(2)(b). See Section 5.2 for a detailed discussion of notice of hearings.

The failure of an attorney, parent, guardian, or legal custodian to appear may result in adjournment of the preliminary hearing.⁶ MCR 3.965(B)(1). The court may, however, continue with the preliminary hearing in the absence of the child’s parent, guardian, or legal custodian if notice was given or if the court finds that a reasonable attempt to give notice was made. Id. When a notice is returned unclaimed, “‘the adequacy of the [DHHS]’s efforts will be evaluated in light of the actions it takes after it learns that its attempt at notice has failed.’” In re Rood, 483 Mich 73, 110 (2009), quoting Sidun v Wayne Co Treas, 481 Mich 503, 511 (2008).

2.Inquiring About Indian Children

The court must inquire whether a child or either of the child’s parents is a member of an Indian tribe. MCR 3.965(B)(2). “If the court knows or has reason to know the child is an Indian child, the court must determine the identity of the child’s tribe[.]”⁷ Id.

Where an Indian child was taken into protective custody without a court order⁸ or the petition requests removal of the Indian child, the court must follow the procedures set out in MCR 3.967. MCR 3.965(B)(2). See Section 19.12(B) for information on MCR 3.967.

Note: The court may hold the preliminary hearing in conjunction with the removal hearing if all necessary parties are notified,⁹ there are no objections by the parties to do so, and at least one qualified expert witness is present to provide testimony. MCR 3.965(B)(2). However, the court may adjourn the preliminary hearing pending the conclusion of the removal hearing if necessary.¹⁰ Id. 

3.Temporary Orders

“The court may make temporary orders for the protection of the child pending the appearance of an attorney or pending the completion of the preliminary hearing.” MCR 3.965(B)(3).

4.Lawyer-Guardian Ad Litem (L-GAL) for Child

The court must appoint a lawyer-guardian ad litem to represent a child in a child protective proceeding.¹¹ MCL 712A.17c(7). “The child’s lawyer-guardian ad litem must be present to represent the child at the preliminary hearing.” MCR 3.965(B)(3).

The court must determine whether the child’s lawyer-guardian ad litem is present at the preliminary hearing. MCR 3.965(B)(1). The court must also direct that the child’s lawyer-guardian ad litem receive a copy of the petition. MCR 3.965(B)(3).

5.Reading Allegations

Unless waived, the court must read the allegations in the petition in open court. MCR 3.965(B)(4).

6.Required Procedures Toward Respondent

If a respondent is present at the preliminary hearing, the court must assure that he or she has a copy of the petition. MCR 3.965(B)(4).

The court is also required to advise the respondent of his or her right:

(1) pursuant to MCR 3.915(B)(1)(a), to the assistance of an attorney at the preliminary hearing and any subsequent hearing. MCR 3.965(B)(6). See Section 7.9 for a detailed discussion of a respondent’s right to counsel.

(2) to a trial on the allegations in the petition, and that the trial may be held in front of a referee unless a demand for a jury or judge is filed under MCR 3.911 or MCR 3.912. MCR 3.965(B)(7). See Section 9.6 for a detailed discussion on demands for a jury or bench trial.

Additionally, the court must provide the respondent with an opportunity to deny or admit the allegations contained in the petition and give an explanatory statement. MCR 3.965(B)(9).

7.Decision to Dismiss, Refer, or Continue

The court must determine whether a petition should be dismissed or referred to alternative services. MCR 3.965(B)(5). If the case is dismissed or referred, the court must release the child. Id. However, if the court does not dismiss or refer the case, the court must continue the preliminary hearing. Id.

8.Nonrespondent Parent’s Right to Seek Placement of Child in Home

“The court must advise a nonrespondent parent of his or her right to seek placement of his or her children in his or her home.” MCR 3.965(B)(8).

For purposes of child protective proceedings, a nonrespondent parent is “a parent who is not named as a respondent in a petition filed under MCL 712A.2(b).” MCR 3.903(C)(8).

9.Child Subject to Another Court’s Jurisdiction

The court must inquire whether the child is subject to the continuing jurisdiction of another court and, if so, which court. MCR 3.965(B)(10). See Section 4.4 for a detailed discussion of concurrent jurisdiction.

10.Inquiring About the Child’s Family

Where a child’s father has not been identified, the court must ask the child’s mother about the father’s identity and whereabouts. MCR 3.965(B)(14).

The court must also ask a child’s parent, guardian, or legal custodian if the child has any relatives who might be available to provide care. MCR 3.965(B)(14).

Note: A relative is “an individual who is at least 18 years of age and is either of the following:

(i) Related to the child within the fifth degree by blood, marriage, or adoption,  including the spouse of an individual related to the child within the fifth degree, even after the marriage has ended by death or divorce, the parent who shares custody of a half-sibling,^[12] and the parent of a man whom the court has found probable cause to believe is the putative father if there is no man with legally established rights to the child.

(ii) Not related to a child within the fifth degree by blood, marriage, or adoption but who has a strong positive emotional tie or role in the child’s life or the child’s parent’s life if the child is an infant, as determined by the [DHHS] or, if the child is an Indian child, as determined solely by the Indian child’s tribe.”¹³ MCL 712A.13a(1)(j). See In re Schadler, 315 Mich App 406, 413 (2016) (finding that “the trial court was not required to consider [the child’s biological mother for] relative placement” when “MCL 712A.13a(1)(j) defines ‘relative,’ and biological mother is not included in the definition”).¹⁴

A child’s father may propose that his child be placed with relatives when the father is incarcerated, has not been adjudicated, and is unable to provide placement in his own home. In re Dixon (On Reconsideration), ___ Mich App ___, ___ (2023). When an incarcerated father’s relatives are unwilling to take custody of the child, the father may propose placement with a nonrelative. Dixon, ___ Mich App at ___.

11.Right to Appeal Removal of Child

“If the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action.” MCR 3.965(B)(15).

B.Petition Authorization

Unless the preliminary hearing is adjourned, the court must decide whether to authorize the filing of a petition. MCR 3.965(B)(12). The court’s authorizing of the filing of the petition refers to the court’s written permission to “file the petition containing the formal allegations against the . . . respondent with the clerk of the court.” MCR 3.903(A)(21).

The judge or referee must authorize the filing of a petition during the preliminary hearing, or the child must be released to his or her parent or parents, guardian, or custodian. MCL 712A.14(2). The court may authorize the filing of the petition upon a showing of probable cause, unless waived, that one or more of the allegations contained in the petition are true and fall within MCL 712A.2(b).¹⁵ MCL 712A.13a(2); MCR 3.965(B)(12).

Note: “The Michigan Rules of Evidence do not apply, other than those with respect to privileges, except to the extent that such privileges are abrogated by MCL 722.631.”¹⁶ MCR 3.965(B)(12).

A petition may be amended at any stage of the proceedings as the ends of justice require. MCL 712A.11(6).

1.Finding of Probable Cause

At a preliminary hearing, the court must make “a finding of probable cause that one or more of the allegations [in the petition] are true and could support the trial court’s exercise of jurisdiction under MCL 712A.2(b).” In re Ferranti, 504 Mich 1, 15 (2019).

The probable-cause phase of a preliminary hearing may proceed in the following ways:

•Respondent waives probable-cause determination: if the respondent waives the probable-cause determination, the verified petition allows the court to authorize the filing of the petition. See MCR 3.965(B)(12); MCR 3.965(C)(1). This is similar to the probable-cause showing at a preliminary inquiry. See MCL 712A.13a(2); MCR 3.962(B)(3).

•Respondent does not waive probable-cause determination and witnesses are present: if the respondent does not waive the probable-cause determination, the petitioner presents witnesses, and the respondent is given an opportunity to cross-examine witnesses, to subpoena witnesses, and to offer proofs to counter the admitted evidence. MCR 3.965(C)(1). If the court finds probable cause that one or more of the allegations in the petition are true, the court may authorize the filing of the petition. MCR 3.965(B)(12).

•Respondent does not waive probable-cause determination and no witnesses are present: if the respondent does not waive the probable-cause determination and no witnesses are present, the court may adjourn the hearing for up to 14 days to secure the attendance of witnesses. MCR 3.965(B)(11). If the court finds probable cause that one or more of the allegations in the petition are true, the court may authorize the filing of the petition. MCR 3.965(B)(12).

2.Authorizing the Filing of Petition

If the court authorizes the filing of the petition, it must decide whether the child should remain in the home, be returned home, or be placed in foster care pending trial. MCR 3.965(B)(12).¹⁷ See also MCL 712A.14(3).

“If the court authorizes the filing of the petition, the court:

      (a)    may release the child to a parent, guardian, or legal custodian and may order such reasonable terms and conditions believed necessary to protect the physical health or mental well-being of the child; or

(b)    may order placement of the child after making the determinations specified in [MCR 3.965](C), if those determinations have not previously been made.^[18] If the child is an Indian child, the child must be placed in descending order of preference with:

(i) a member of the child’s extended family,

(ii) a foster home licensed, approved, or specified by the child’s tribe,

(iii) an Indian foster family licensed or approved by the department,

(iv) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.

The court may order another placement for good cause shown in accordance with MCL 712B.23(3)-(5). If the Indian child’s tribe has established a different order of preference than the order prescribed above, placement shall follow that tribe’s order of preference as long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in MCL 712B.23(6).^[19] The standards to be applied in meeting the preference requirements above shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.”²⁰ MCR 3.965(B)(13).

If the court authorizes the petition, it may release the child to his or her parents, guardian, or custodian under reasonable terms and conditions necessary for the child’s physical health or mental well-being. MCL 712A.13a(3). However,

•if the petition alleges that the child’s parent, guardian, custodian, nonparent adult²¹, or other person residing in the child’s home abused the child, the court must not “leave the child in or return the child to the child’s home or place the child [in an unlicensed foster care], unless the court finds that the conditions of custody at the placement and with the individual with whom the child is placed are adequate to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being.” MCL 712A.13a(5).

•“[i]f [the] court finds [that] a parent is required by court order to register under the [S]ex [O]ffenders [R]egistration [A]ct,^[22] the [DHHS] may, but is not required to, make reasonable efforts to reunify the child with the parent. The court may order reasonable efforts to be made by the [DHHS].” MCL 712A.13a(6).

Under MCL 712A.13a(2), if severe physical injury or sexual abused is alleged,²³ the court must consider:

(1) Ordering the alleged abuser to leave the child’s home. MCL 712A.13a(4). See Section 7.6(C).

(2) Not leaving the child in or returning the child home unless the court finds that the child is adequately safeguarded from the risk of harm to his or her life, physical health, or mental well-being. MCL 712A.13a(5).

C.Order Alleged Abuser From Child’s Home

If the court authorizes the filing of the petition and releases the child to a parent, guardian, or legal custodian, the court may order such reasonable terms and conditions believed necessary to protect the child’s physical health or mental well-being. MCR 3.965(B)(13)(a). One of the terms and conditions available to the court is to order the child’s parent, guardian, custodian, nonparent adult,²⁴ or other person residing in the child’s home to leave and not return except as the court orders. See MCL 712A.13a(4).

1.Procedure to Order Alleged Abuser From Child’s Home

When a court orders a child’s parent, guardian, custodian, nonparent adult, or other person residing in the child’s home to leave and to not subsequently return to the home, except as the court orders, the court must:

(1) authorize the filing of the petition that contains allegations of child abuse;

(2) find, during the preliminary hearing, probable cause to believe the child’s parent, guardian, custodian, nonparent adult, or other person residing in the child’s home committed the abuse; and

(3) find on the record that the presence of the alleged abuser in the child’s home presents a substantial risk of harm to the child’s life, physical health, or mental well-being.²⁵ MCL 712A.13a(4).

The court may also consider whether the parent remaining in the home is married to the removed person or has a legal right to retain possession of the home. MCL 712A.13a(7).

Abuse, for purposes of MCL 712A.13a, is any of the following:

“(a) Harm or threatened harm by a person to a juvenile’s health or welfare that occurs through nonaccidental physical or mental injury.

(b) Engaging in sexual contact or sexual penetration as those terms are defined in . . . MCL 750.520a, with a juvenile.

(c) Sexual exploitation of a juvenile, which includes, but is not limited to, allowing, permitting, or encouraging a juvenile to engage in prostitution or allowing, permitting, encouraging, or engaging in photographing, filming, or depicting a juvenile engaged in a listed sexual act as that term is defined in . . . MCL 750.145c.

(d) Maltreatment of a juvenile.” MCL 712A.13a(21).

2.Additional Conditions Added to Order

The order removing a parent, guardian, custodian, nonparent adult, or other person from the home may contain one or more of the following terms or conditions:

“(a) The court may require the alleged abusive parent to pay appropriate support to maintain a suitable home environment for the juvenile during the duration of the order.

(b) The court may order the alleged abusive person, according to terms the court may set, to surrender to a local law enforcement agency any firearms or other potentially dangerous weapons the alleged abusive person owns, possesses, or uses.

(c) The court may include any reasonable term or condition necessary for the juvenile’s physical or mental well-being or necessary to protect the juvenile.” MCL 712A.13a(8).

3.Violation of Court Order

A law enforcement officer has the authority to arrest a person without a warrant if the officer has reasonable cause to believe that:

(1) the court has issued an order under MCL 712A.13a(4) that removes the person from the child’s home and indicates the period of time when the order is valid;

(2) a true copy of the order and proof of service has been filed with the law enforcement agency having jurisdiction of the area in which the person having custody of the child under MCL 712A.13a(4) resides;

Note: Orders and proofs of service must be entered into the Law Enforcement Information Network (LEIN). MCL 764.15f(6). If an order is rescinded, the court must immediately order the removal of the protective order from LEIN. MCL 764.15f(7).

(3) the person removed from the home has received notice of the order;

(4) the removed person is acting in violation of the court’s order; and

(5) the order indicates that a violation of its terms subjects the person to criminal contempt of court and may result in imprisonment of not more than 90 days and a fine of not more than $500. MCL 764.15f(1)(a)-(e).

“‘Reasonable cause’ means having enough information to lead an ordinarily careful person to believe that the defendant committed a crime.” People v Freeman, 240 Mich App 235, 236 (2000) (reliance on LEIN information provided police officer with reasonable cause to believe that defendant named on the personal protection order (PPO) had notice of the PPO and had violated its provision, thereby subjecting him to an immediate arrest).

When a person is arrested for violating a court’s order under MCL 712A.13a(4), he or she must go before the Family Division having jurisdiction of the cause within 24 hours of the arrest to answer to a charge of contempt for violation of the order. MCL 764.15f(3). Once the arrested person is brought before the court, the court must:

(1) schedule a hearing on the alleged violation of the order within 72 hours of the arrest (unless the court grants an extension of time upon the motion of the arrested person);

(2) set a reasonable bond pending the scheduled hearing; and

(3) notify the person having custody of the child under MCL 712A.13a(4) to appear at the scheduled hearing to give evidence on the charge of contempt. MCL 764.15f(3)(a)-(c).

Note: A Family Division judge may arraign, take a plea, or sentence a person for criminal contempt in the same manner as a circuit court judge could in other criminal cases. MCL 764.15f(4).

If a person is arrested for violating the court’s order and a Family Division judge is not available within 24 hours of the arrest, he or she must go before a district court judge. MCL 764.15f(5). The district court judge must set a hearing before the Family Division that entered the violated order or that has jurisdiction over the order, and set bond. Id.

Note: The requirements for enforcing orders issued under MCL 712A.13a(4) are similar to the requirements for enforcing a PPO. For a detailed discussion of PPOs, see the Michigan Judicial Institute’s Domestic Violence Benchbook, Chapter 5. For a detailed discussion of contempt proceedings, see the Michigan Judicial Institute’s Contempt of Court Benchbook and Contempt Quick Reference Materials.

D.Adjournments of Preliminary Hearings

Adjourning a preliminary hearing should only be granted for good cause after the court takes the child’s best interests into consideration and where the adjournment is for as short of a period of time as possible. MCR 3.923(G). For a more detailed discussion of adjournments, see Section 5.8.

The court may find good cause to adjourn a preliminary hearing for any of the following reasons:

(1) An attorney, parent, guardian, or legal custodian fails to appear at the preliminary hearing. MCR 3.965(B)(1). The court may, however, continue with the preliminary hearing in the absence of the child’s parent, guardian, or legal custodian if notice was given or if the court finds that a reasonable attempt to give notice was made.²⁶ Id.

Note: The child’s lawyer-guardian ad litem must be present to represent the child at the preliminary hearing. MCR 3.965(B)(3). See Section 7.6(A) for additional information.

(2) A petition requests the removal of an Indian child. MCR 3.965(B)(2). The court may adjourn the preliminary hearing pending the conclusion of the removal hearing or continue with the preliminary hearing in conjunction with the removal hearing if the necessary parties are notified,²⁷ there are no objections by the parties to do so, and at least qualified one expert witness is present to provide testimony. Id.

(3) A witness’s attendance needs to be secured. MCR 3.965(B)(11). The court may adjourn the preliminary hearing for up to 14 days to secure a witness’s attendance or for good cause shown. Id.

(4) “[T]he court knows or has reason to know the child is an Indian[.]” MCR 3.965(B)(11). “[T]he court may adjourn the [preliminary] hearing for up to 21 days to ensure proper notice to the tribe or Secretary of the Interior as required by MCR 3.920(C)(1).”²⁸ MCR 3.965(B)(11).

Note: If a preliminary hearing is adjourned, the court may enter temporary orders for placement of a child when necessary for the child’s immediate safety, pending completion of the preliminary hearing, and subject to MCR 3.965(C), and as applicable, MCR 3.967.²⁹ MCR 3.965(B)(11).

E.Impact of Preliminary Hearing on Nonparent Adult

At a preliminary hearing, the court may issue an order that does one or more of the following:

“(a) Requires the nonparent adult to participate in the development of a case service plan.^[30] 

(b) Requires the nonparent adult to comply with a case service plan.

(c) Permanently removes the nonparent adult from the home of the child as provided in [MCL 712A.13a].^[31]

(d) Permanently restrains the nonparent adult from coming into contact with or within close proximity of the child.” MCL 712A.6b(1)(a)-(d). See Section 4.10 for a discussion on the court’s jurisdiction and authority over adults.

A nonparent adult is “a person who is 18 years of age or older and who, regardless of the person’s domicile, meets all of the following criteria in relation to a child over whom the court takes jurisdiction under [MCL 712A.2(b)]:

(i) Has substantial and regular contact with the child.

(ii) Has a close personal relationship with the child’s parent or with a person responsible for the child’s health or welfare.

(iii) Is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree.” MCL 712A.13a(1)(h).

A nonparent adult who violates a court order issued under MCL 712A.6b is guilty of a misdemeanor.³² MCL 712A.6b(2). For subsequent violations, a nonparent adult is guilty of a felony.³³ MCL 712A.6b(3). A nonparent adult may also be charged with, convicted of, or punished for any other violations he or she commits while violating a court order issued under MCL 712A.6b. MCL 712A.6b(4).

The court may also exercise its criminal or civil contempt powers for a nonparent’s violation of an order issued under MCL 712A.6b. MCL 712A.6b(5).