7.2Rehearings

Once an order is entered under the Adoption Code, a party to the order may petition the court for a rehearing. See MCL 710.64(1); MCR 3.806(A).

“Pending a ruling on the petition for rehearing, the court may stay any order, or enter another order in the best interest of the minor.” MCR 3.806(D).

For checklists on rehearings, see the Michigan Judicial Institute’s Adoption Proceedings Quick Reference Materials on Rehearings.

A.Rehearing Requirements

“A party may seek rehearing under MCL 710.64(1) by timely filing a petition stating the basis for rehearing.” MCR 3.806(A). The petitioner has 21 days after an order is entered to petition the court for a rehearing. MCL 710.64(1). Generally, if a petitioner fails to petition the court within the 21-day period, he or she does not have a due process right to a rehearing. In re Myers, 131 Mich App 160, 165-166 (1983).

1.Exception to 21-day Filing Period

In cases of positive fraud,¹ the court may grant a petition for rehearing filed outside of the 21-day period. In re Kozak, 92 Mich App 579, 581, 583 (1979) (trial court erroneously denied the biological father’s petition for rehearing filed three months after entry of the termination order where the father claimed he did not receive notice of the court proceedings and the child’s mother lied about knowing he was the father).

2.Notice and Response Requirements

“Immediately upon filing the petition, the petitioner must give all interested parties notice of its filing in accordance with MCR 3.802. Any interested party may file a response within 7 days of the date of service of notice on the interested party.” MCR 3.806(A). MCL 710.24a and MCR 3.800(B) list the interested parties for various hearings conducted under the Adoption Code.

B.Court Determination

“[A]fter due notice to all interested parties, the judge may grant a rehearing and may modify or set aside the order.” MCL 710.64(1). “The court must base a decision on whether to grant a rehearing on the record, the pleading filed, or a hearing on the petition. The court may grant a rehearing only for good cause. The reasons for its decision must be in writing or stated on the record.” MCR 3.806(B).

1.Granting the Petition for Rehearing

“If the court grants a rehearing, the court may, after notice, take new evidence on the record. It may affirm, modify, or vacate its prior decision in whole or in part. The court must state the reasons for its action in writing or on the record.” MCR 3.806(C). The court has 21 days after the rehearing to enter an order on the contested matter. MCL 710.64(2). The court’s finding on rehearing may be appealed to the Court of Appeals. MCL 710.65(1).

Generally, harmless error is not grounds for disturbing a judgment or order. See MCR 2.613(A),² which provides that “[a]n error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for . . . disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”

The trial court may rely on the best interests of a child for guidance during a rehearing. In re Burns, 236 Mich App 291, 292-293 (1993) (“[b]ecause petitioner’s release was both knowing and voluntary and because petitioner sought rehearing on the specific ground of a change of heart, the family court properly relied on the best interests of the child for guidance when determining whether to vacate petitioner’s release[]”).

The court’s finding on rehearing may be appealed to the Court of Appeals. MCL 710.65(1). See Section 7.4 for a detailed discussion of appealing a decision to the Court of Appeals.

2.Denying the Petition for Rehearing

If the court denies the petition, it must state the reason for the denial on the record or in writing. MCL 710.63. The court’s decision to deny rehearing may be appealed to the Court of Appeals. MCL 710.65(1). See Section 7.4 for a detailed discussion of appealing a decision to the Michigan Court of Appeals.

Where a parent knowingly and voluntarily releases his or her parental rights, a court may not abuse its discretion by denying the petition for rehearing based solely on a change of heart. See In re Curran, 196 Mich App 380, 385 (1992).

C.Videoconferencing Technology

“Except as otherwise provided, the court may allow the use of videoconferencing technology for proceedings under [subchapter 3.800, Adoption] in accordance with MCR 2.407.” MCR 3.811.

“Videoconferencing technology may not be used for a consent hearing under this subrule involving an Indian child pursuant to MCL 712B.13.”³ MCR 3.804(B)(3).