It is not uncommon in many families for one parent to be the breadwinner that has employment outside of the home generating income that supports the family and the other parent to stay at home and raise the children. When families end up dissolving due to divorce or separation, it comes down to the family court judge to decide what the custodial arrangements of the child should be. Does the parent who has stayed at home during the marriage to raise children have the advantage in custody proceedings? Is the other parent discounted because he or she works outside of the home?
The Michigan Court of Appeals recently tackled this issue when it delivered its opinion in Bofysil v Bofysil, __ Mich App __; __ NW2d (2020)(Docket No. 351004) on April 23, 2020. In that case, Bridget Bofysil and Sarah Bofysil were married in April 2014 and had a child via a sperm donor. The parents decided that Sarah would stay at home to raise their child while Bridget worked as a canine officer with the Eastern Michigan University Police. Unfortunately, the relationship deteriorated and the parties filed for divorce in June 2018. A contentious custody battle ensued. Sarah testified that Bridget would take side jobs as a dog trainer in addition to her primary employment which interrupted family time. In addition, she moved to Muskegon to live with her parents after the separation which put considerable distance from Bridget who still worked in Ypsilanti. Bridget testified that Sarah would plan parenting time that conflicted with her work schedule and was being deliberately inflexible. Despite the allegations, the reality was that the child spent the majority of the time with Sarah.
The trial court awarded sole legal and sole physical custody of the child with Sarah and awarded reasonable parenting time with Bridget. The judge found that the child had an established custodial environment with Sarah alone, finding that she “was the stay at home mom while the parties were together”, ”she had primary physical custody continuously since they separated”, and the child “naturally looks currently to the parent she is with for love, affection and the necessities of life.” Since the court made the established custodial environment determination with Sarah alone, then the burden was on Bridget to prove by clear and convincing evidence that she should have physical custody of the child. The trial court went on to fault Bridget for not effectively co-parenting with Sarah and found that the best interests of the child factors tended to favor Sarah. Bridget filed a motion for reconsideration on the basis that the child only primarily resided with Sarah because she withheld and alienated the child from her. The judge denied the motion, and Bridget subsequently appealed.
The Michigan Court of Appeals determined that the trial judge made a mistake in determining established custodial environment (“ECE”). “Determining a child’s established custodial environment is a pivotal step in a custody battle because it installs the burden of proof”. If the proposed change would modify the child’s ECE, then the person seeking the change must show by clear and convincing evidence that it is in the child’s best interest. If the court had found that the child’s ECE was with both parents, then the party seeking the proposed change would only have to show by a preponderance of the evidence that it is in the child’s best interest. Since the trial found that Sarah was the only parent with ECE, then it created an uneven burden of proof. Sarah only had to show by preponderance of the evidence that she should receive physical custody and Bridget had to show by clear and convincing evidence that she should receive physical custody. However, deciding that the child did not have an ECE with Bridget as well was an error.
The trial court seemed to heavily penalize Bridget for working outside of the home but minimized her contributions to the family unit. Testimony from the trial showed that both parties agreed that they both shared in the care of the child before Sarah left the home. Although Bridget worked outside of the home, she arranged her schedule to maximize her time home during the child’s waking hours. “Even Sarah conceded that Bridget was usually the one to make lunch for the family and that the whole family often would be present when Bridget took on side jobs training dogs.” Although the child “may have looked to her parents to fulfill different needs and likely understood at some level their distinct household roles, both provided her with ‘security, stability, and permanence’”. In sum, “[t]he court perpetuated its erroneous approach to the working parent throughout the judgment, faulting Bridget for her full-time employment outside the home by treating her as less than a full parent.” This bias against her working-parent role likely improperly figured into many of the best-interest of the child factors, so the trial court reversed the decision and remanded the decision back to the trial court for further consideration consistent with this opinion.
The Michigan Court of Appeals made it clear that it will not tolerate a bias against a parent merely for working outside of the home for the purpose of child custody decisions. This does not mean that a parent’s employment cannot be a consideration at all under certain circumstances. Bridget may not have as much face-to-face interaction with her child as Sarah, but she did make time for her family when she was available and had a clearly defined role in the family. A parent who works very long hours and neglects the family on his or her free time would not fair so well for established custodial environment. A parent that is involved in any litigation for custody and parenting time should consult with a skilled family law lawyer to see how their employment may impact modifications in their case.
If you or a loved one have questions about a family law matter or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.