Modifying A Custody Order In Michigan (Part 3 of 3): Best Interests Of The Child

Once physical custody and legal custody of a child is initially established by the circuit court between the parents, it then 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 for years to come. 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 the best interests of the child.

After the trial court determines that a parent established proper cause or change of circumstances to modify custody, it then must make a determination if the child has an established custodial environment with one or both of the parents. If the court determines that the request for custody modification will change the established custodial environment of the child, then the court must determine by clear and convincing evidence that it is in the best interests of the child to modify the current order. This means that a substantial number of best interest factors must favor the parent seeking to modify. However, if the request would NOT change the established custodial environment of the child OR this is an initial custody determination, then the court must determine by a preponderance of the evidence that it is in the best interests of the child to modify the current order. This means that, if the sum of the factors slightly favor one parent, then that parent should prevail.

According to MCL 722.23, “best interests of the child” means the sum total of the following factors to be considered, evaluated and determined by the court:

• (a) The love, affection, and other emotional ties existing between the parties involved and the child.

1. “The decision does not turn upon a court’s determination of which parent is the most loving.” Baker v Baker, 411 Mich 567, 585; 309 NW2d 532 (1980).
2. The judge may conclude that both parents love their children equally. Eigner v Eigner, 79 Mich App 189, 203; 261 NW2d 254 (1977).

• (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

1. “[T]his factor deals with the capacity and disposition of the parties, not whether each party has in fact had the opportunity to demonstrate that capacity and disposition.” This can de demonstrated through the parent’s attempts to obtain parenting rights to the child, despite only holding the child a few hours after birth. Demski v Petlick, 309 Mich App 404, 447-448; 873 NW2d 596 (2015).
2. The judge may find that a parent’s ability to provide guidance can be impaired by an unresolved alcohol issue, especially where a party acquires a drunk driving conviction since the last custody determination. Bowers v Bowers, 198 Mich App 320, 329; 497 NW2d 602 (1993).
3. The judge may consider a parent’s involvement in the academic affairs and extracurricular activities of the children and the children’s reliance on a parent to answer questions about personal matters (e.g. sexual maturation). Fletcher v Fletcher, 447 Mich 871, 884; 526 NW2d 889 (1994).
4. It is not enough to simply attend or participate in church services to prevail on this factor, but rather if the parent has “instilled or is likely to instill a solid religious foundation in [his or] her life.” Carson v Carson, 156 Mich App 291, 297-298; 401 NW2d 632 (1986).

• (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

1. The judge may consider which party has the greater income with which to provide food, clothing, medical care or other remedial care. Carson v Carson, 156 Mich App 291, 297-298; 401 NW2d 632 (1986).
2. However, the trial court can still find the parties equal on capacity to provide even if one of the parents is a homemaker. Barringer v Barringer, 191 Mich App 639; 479 NW2d 3 (1992).
3. The judge may consider the employment history of the parties and find this factor in favor of a parent with a good employment history when the other parent was working only part-time, recently fired from a job for undisclosed reasons, or obtained employment in a position with uncertain income (e.g. sales). Harper v Harper, 199 Mich App 409, 416; 502 NW2d 409 (1993).
4. The judge may also consider a parent’s ability to obtain better paying work based on that parent’s education and work experience (e.g. party educated to become dietician but settles for lower paying job in sewing and alteration). McCain v McCain, 229 Mich App 123, 127; 580 NW2d 485 (1998).
5. Even if one party makes less money than the other party, the judge can consider that the parent making less is receiving child support that can help provide food, clothing, medical care or other remedial care. LaFleche v Ybarra, 242 Mich App 692, 701; 619 NW2d 738 (2000).

• (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

1. Even if a party moves often, if a child’s home was with the parent wherever that may be and the child’s needs are being met, then the parent should not be punished for having to move. Philips v Jordan, 241 Mich App 17, 23; 614 NW2d 183 (2000).
2. The judge can favor this factor to a parent who “lived in the same house, worked the same job for over nine years, was in a stable marriage and had quit drinking” against the other parent who has remarried, divorced and moved several times during the same time period. Hilliard v Schmidt, 231 Mich App 316; 586 NW2d 263, 267 (1998).

• (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

1. “The focus should be on the permanence or stability of the family environments offered by each parent rather than engaging in an evaluation about whether one custodial home would be more acceptable than the other.” Ireland v Smith, 451 Mich 457, 464-465; 547 NW2d 686 (1996).
2. The fact that a parent in a custody suit is single “should not preclude a finding that they have the ability to provide a permanent custodial home and family unit.” Zuziak v Zuziak, 169 Mich App 741, 749; 426 NW2d 761 (1988).
3. This is not an evaluation of the ” acceptability of the custodial home”. Fletcher v Fletcher, 447 Mich 871, 884; 526 NW2d 889 (1994).
4. The judge can consider a parent’s new marriage adding stability to that parent’s life in determining whether there is an adequate custodial home. Philips v Jordan, 241 Mich App 17, 23-24; 614 NW2d 183 (2000).
5. The judge may consider a parent’s “experiences in developing inappropriate relations with other persons during her marriage” coupled with “the frequent use of babysitters” for this purpose in giving an advantage to a parent. Mazurkiewicz v Mazurkiewicz, 164 Mich App 492, 501; 417 NW2d 542 (1987).

• (f) The moral fitness of the parties involved.

1. Standing alone, unmarried cohabitation is not enough to constitute immorality.” Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988).
2. Even if there is evidence presented that a parent was involved in extramarital affairs during the few years leading up to a custody determination, this factor should not be scored where “the evidence was clear that the children had no knowledge of them.” Fletcher v Fletcher, 447 Mich 871, 884; 526 NW2d 889 (1994). Moral fitness “relates to a person’s fitness as a parent”, and “courts must look to the parent-child relationships and the effect that the conduct at issue will have on that relationship.” Id at 886-887.

• (g) The mental and physical health of the parties involved.

1. This factor considers whether a parent’s physical or mental problems would interfere with the ability to care for the child. If a parent is hospitalized for a period of time but was still able to provide care (e.g. hospital places baby’s crib in room), then this factor may not disfavor him or her. Wilson v Upell, 119 Mich App 16, 19; 325 NW2d 611 (1982).
2. A party’s drinking history or angry outbursts towards the other parent are factors relevant to mental health. Bowers v Bowers, 198 Mich App 320, 329; 497 NW2d 602 (1993).
3. When considering a party’s physical disability or handicap in a custody dispute (e.g. deafness), the judge should consider that “proper development of communications skills” between the parent and child existed and the parent was still able to provide for the child’s needs. Bednarski v Bednarski, 141 Mich App 15, 26-27; 366 NW2d 69 (1985).
4. “A person shall not be denied custody of or visitation with a minor for conduct that is permitted by [the 2018 Michigan Marihuana Legalization Initiative], unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” MCL 333.27955(3).

• (h) The home, school, and community record of the child.

1. The judge may consider whether the child has a significant absence record from school while in the care of a parent (especially when they are not excused by illness). Moser v Moser, 184 Mich App 111, 115-116; 457 NW2d 70 (1990).
2. This factor may be inapplicable for children too young (e.g. under three years old) to have a home, school or community record. Wellman v Wellman, 203 Mich App 277, 284; 512 NW2d 68 (1994).
3. This factor favored a parent where, during a seventeen-month period with custody under an ex parte order, the child had a marked improvement in school and was participating in family counseling. Hall v Hall, 156 Mich App 286, 289; 401 NW2d 353 (1986).
4. The trial court can consider this factor favoring a parent who has slightly more flexibility in their work schedule to meet the children’s needs (e.g. able to transport children to school and daycare most of the time). Kessler v Kessler, 295 Mich App 54, 66; 811 NW2d 39 (2011).

• (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

1. A child over six years old is presumed to have the capacity to express a preference in a custody dispute, but the interview with the judge is limited to inquiring about reasonable preference only. Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991).
2. Trial courts are required to conduct an interview of the child in all but the most extraordinary circumstances. Kubicki v Sharpe, 306 Mich App 525; 858 NW2d 57 (2014).
3. The judge may give little weight to the child’s expressed preference if he or she finds from the evidence that the stated preference was unduly influenced by a party and inconsistent with the child’s best interests. Baker v Baker, 411 Mich 567, 585; 309 NW2d 532 (1980).

• (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

1. The judge may find this factor against a parent who “insulted, berated and threatened” the other parent in front of the children or allowed the child to make other weekend plans when he or she was supposed to be visiting the other parent. Bowers v Bowers, 198 Mich App 320, 333; 497 NW2d 602 (1993).
2. Although a parent may not be forcing a hesitant child to obey the visitation schedule, this factor may not disfavor that parent who was following the sound advice of a psychologist to let the youth choose because the visits were tumultuous. Hilliard v Schmidt, 231 Mich App 316; 586 NW2d 263, 268 (1998).
3. The judge can consider a parent’s interference with the other parent’s visitation on meritless allegations of sexual abuse (e.g. no police or CPS investigation). Barringer v Barringer, 191 Mich App 639, 642-643; 479 NW2d 3 (1992).
4. The judge can consider a parent’s attempts through litigation to prevent one parent from forming a relationship with the other. Demski v Petlick, 309 Mich App 404, 452-453; 873 NW2d 596 (2015).

• (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

1. The trial court may find this factor neutral to both parents when, for example, one parent testifies to three incidents of domestic violence but the other parent “presented a different version of each of the events”. The judge is entitled to make a determination on the credibility of the witnesses. Kessler v Kessler, 295 Mich App 54, 67; 811 NW2d 39 (2011).
2. However, the trial court found this factor favored a parent where she testified to domestic violence throughout the marriage, that the other parent admitted her was “probably physically assaultive”, and that there was one prior conviction during the course of their relationship. McIntosh v McIntosh, 282 Mich App 471; 768 NW2d 325 (2009).

• (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

1. The judge may consider if it is in the best interests of the child to keep siblings together. Wiechmann v Wiechmann, 212 Mich App 436, 439-441; 538 NW2d 57 (1995).
2. The judge can consider the benefits of a two-parent household with a full-time parent over a single-parent household. Mogle v Schriver, 241 Mich App 192, 204; 614 NW2d 696 (2000).
3. The judge may consider the proposed child-care arrangements in the custodial home or elsewhere. Ireland v Smith, 451 Mich 457, 466-467; 547 NW2d 686 (1996).
4. The judge may consider the emotional pressure the child endured by being caught between the parties’ dispute and can find this factor against the party that did not take responsibility (e.g. anger towards other parent interfered with ability to consider the needs of the children and caused children to be blamed for problems). Hilliard v Schmidt, 231 Mich App 316; 586 NW2d 263, 268 (1998).

When making a determination regarding a child’s best interest, a trial court is required to state its factual findings and conclusions with regard to each relevant statutory best interest factor listed in MCL 722.23. Rittershaus v Rittershaus, 273 Mich App. 462, 472-475, 730 NW2d 262 (2007). Failure for the judge to do this can cause the appellate courts to send the case back for a new hearing. The trial court may determine that some factors are not relevant in its consideration or determine that the factors do not merit equal weight to other factors. Parent v Parent, 282 Mich App 152; 762 NW2d 553 (2009).

The best interests of the child factors are factual and require the presentation of witnesses and exhibits, sometimes over several days of trial. Judges often have different value systems and various courts may interpret the evidence against the best interest factors in different ways. There is no substitute for consulting with a knowledgeable attorney to determine whether or not your case will be strong enough to stack enough best interest factors on your side (especially considering which burden of proof you will be held to). A child custody trial is a lengthy and expensive proposition so you want to be sure at the onset that you have a reasonable chance of prevailing.

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