Background
Following the parties’ divorce, Brittany M. Dehaven received sole legal and physical custody of their minor child. After continuing disputes over custody and parenting time, the trial court directed the parties to participate in family counseling and appointed licensed social worker Amy Sember when the parties could not agree on a counselor.
Jeffrey D. Dehaven later moved to modify custody and parenting time, relying on alleged statements and records from Sember concerning parental alienation and interference with therapy. Brittany asserted social worker-client privilege under MCL 333.18513 and moved to suppress Sember’s anticipated testimony and strike references to her communications. The trial court granted that motion, found Jeffrey’s custody motion rested solely on the privileged material, and denied the custody motion and reconsideration.
The Court’s Holding
The Michigan Court of Appeals affirmed. It held that neither MCL 600.2157a, governing certain communications involving sexual-assault or domestic-violence counselors, nor MCL 330.1750 supplied an applicable exception permitting disclosure of the privileged communications. Court-directed counseling, standing alone, did not waive the statutory social worker-client privilege, and Brittany had revoked the consent she previously gave for Sember to discuss the case.
Once the privileged material was excluded, Jeffrey offered no admissible factual support establishing proper cause or a change in circumstances under Vodvarka v. Grasmeyer. The trial court therefore properly denied modification without an evidentiary hearing. That procedure did not violate due process because Jeffrey identified no meaningful admissible facts requiring resolution, and he remained free to file a future motion supported by other evidence.
Key Takeaways
- A trial court’s direction that parties attend family counseling does not itself waive Michigan’s statutory social worker-client privilege.
- A motion to modify custody must establish proper cause or changed circumstances through admissible evidence before an evidentiary hearing is required.
- Due process does not require an evidentiary hearing when a custody motion presents no contested factual issue supported by admissible evidence.
Why It Matters
The decision underscores that confidentiality protections continue to apply when counseling occurs as part of a court-directed custody process. A party seeking custody modification cannot rely exclusively on privileged counseling communications unless a valid waiver or applicable legal exception permits their use.
It also confirms that Michigan courts may screen postjudgment custody motions at the threshold stage and deny a hearing when the movant’s offer of proof contains no admissible evidence satisfying the Vodvarka standard.