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Modifying A Custody Order In Michigan (Part 2 of 3): Established Custodial Environment

Once physical custody and legal custody of a child is initially established by the circuit court between the parents, it becomes much more difficult for either party to seek a modification of that order in the future. This impediment was intentionally created by the Michigan Legislature to maintain stability for children and prevent unnecessary litigation between spiteful parents. It is difficult to modify an existing custody order, but not impossible and will be granted if the circumstances warrant it. There are three determinations that a court must make before deciding whether or not to change custody:

  • First, has there been proper cause or change of circumstances shown?
  • Second, which parent does the child have an established custodial environment with?
  • Third, it is in the best interests of the child to change custody?

This blog entry will focus exclusively on established custodial environment.

According to MCL 722.27(1)(c), "[t]he court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." The purpose of this provision is to determine the standard of proof that the judge must abide by in determining whether to modify custody. If a determination will modify the established custodial environment, then the court may only modify custody if the moving party proves their case by clear and convincing evidence. If a determination will NOT modify the established custodial environment, then the court can modify custody if the moving party proves their case by a preponderance of the evidence. Simply put, the judge's decision regarding a child's established custodial environment will determine how difficult winning the case will be.

"The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered." Pierron v. Pierron, 486 Mich. 81, 85-86; 782 N.W.2d 480 (2010). "An established custodial environment is one of significant duration 'in which the relationship between the custodian and child is marked by qualities of security, stability and permanence.'" Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). "An established custodial environment can exist in more than one home." Mogle, 241 Mich App at 197-198.

"Whether an established custodial environment exists is a question of fact for the trial court to resolve on the basis of statutory criteria." Hayes v Hayes, 209 Mich App 385, 387-388; 532 NW2d 190 (1995). This means that the parties to the custody modification action must present legally admissible evidence at a hearing to persuade the court whether established custodial environment exists with either parent (or both). Since established custodial environment greatly affects either party's chance of success, then it can be expected that this issue will be bitterly contested.

In determining who has established custodial environment, the reasons why a parent may have it is irrelevant as long as it exists. Bowers v Bowers, 190 Mich App 51, 53-54; 475 NW2d 394 (1991). For example, it does not matter if a parent acquired established custodial environment because they stipulated to a custody order or because no one contested a long-standing temporary order. Id. As long as it exists with a parent or parents, it will determine the burden of proof in a custody hearing.

In Treutle v Treutle, 197 Mich App 690; 495 NW2d 836 (1992), the Michigan Court of Appeals upheld the trial court's finding that an established custodial environment existed with the defendant only, not the plaintiff, during a nine-month period. From January 1989 to June 1989, the child remained with the defendant and plaintiff had visitation rights. During this period, the defendant fed, bathed and put the child to bed. Although plaintiff used to be the primary caretaker when the parties lived together, her lengthy absence before the custody decision established a custodial environment with the defendant. The fact that the defendant utilized a babysitter during this period is irrelevant as long as the child's environment was "marked by qualities of security, stability and permanence."

This doesn't mean that established custodial environment could not exist with both parents simultaneously, even if they live in different households. In Gibson v Gibson, unpublished per curiam opinion of the Court of Appeals, issued April 19th, 2007 (Docket No. 274631), the Michigan Court of Appeals affirmed a finding of established custodial environment with both parents despite plaintiff's objection that the children lived primarily with her for the last three years and that established custodial environment should be with her alone. The trial court found that the defendant averaged three out of seven days a week with the children so they had "approximately the same amount of parenting time." In addition, the plaintiff and defendant both attended the children's sporting events, the plaintiff regularly volunteered in the children's classroom, and that the defendant attended school field trips with the children. Both parents had a loving relationship with the children and they, in turn, looked to the both of them for guidance, discipline, the necessities of life and parental comfort. Under the circumstances, the evidence would not suggest that there was only an established custodial environment with the plaintiff.

A decision about established custodial environment is not limited to physical custody issues only (e.g. where the child lives). If the parents are disputing a legal custody issue, then the trial court must make a custodial environment determination in the event that the custody decision can lead to a de facto change of custody (e.g. change of school district puts a child further away from a custodial parent). In Shimel v McKinley, unpublished per curiam opinion of the Court of Appeals, issued February 23rd, 2016 (Docket No. 329144), the Michigan Court of Appeals reversed the trial court's modification of custody where it erroneously determined that changing the child's school district would not change the established custodial environment. The parties had joint legal and physical custody of the child but they disagreed on what school district to attend. The trial judge, by a preponderance of the evidence, selected a school district and modified defendant's parenting to alternating weekends to accommodate this, but decided that this was a parenting time change only, not a custody change. The Court of Appeals determined that there was an established custodial environment with both parents prior to the motion to modify custody, so reducing defendant's parenting time from equal proportion to weekends only "drastically altered" the amount of time the child would spend with that parent. As a result, the trial judge should have determined which school district the child should attend by clear and convincing evidence, not preponderance of the evidence, since the decision would change the established custodial environment.

The evaluation of custodial environment is entirely factual and can differ from judge to judge. There is no substitute for consulting with a knowledgeable attorney to determine whether or not your case will be held to a higher or lower burden of proof. However, this is not the end of the inquiry. Once the trial court makes a determination about established custodial environment, then it can move on to evaluate the twelve best interest of the child factors.

If you or a loved one need legal representation in any family law matter or have questions about established custodial environment in your case, do not hesitate to contact the lawyers at Kershaw, Vititoe & Jedinak PLC today.

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