Making Change is Not So Easy

By Marian L. Faupel, Esq.

When the courts consider parenting time and legal custody issues, they must apply the factors set out at MCLA 722.23 (the “best interests” test). This applies whether parents are married and seeking a divorce under MCLA 522.1 et seq. or were never married and are seeking a parenting time or custody order pursuant to the Child Custody Act, MCLA 722.1 et seq.

When the court is considering an initial or first order in any case, the evidentiary burden is normally a preponderance of the evidence. When the court is considering a subsequent order, the evidentiary burden becomes “clear and convincing evidence” if the order will change the then existing “established custodial environment.”  MCLA 722.27. When a subsequent order is at issue, the case of Vodvarka v Vodvarka applies. In Vodvarka, the Court of Appeals held that the only evidence that may be considered in these subsequent court proceedings is the evidence that intervened between the last court order and the order now sought.

In the recent case of Bayati v Bayati, 264 Mich. App. 595 (2004), the Court of Appeals reversed and remanded a case where the Oakland County Circuit Court entered a consent order for arbitration and then adopted an arbitrator's decision concerning custody and parenting time. In that case, the parties had married in Iran and had twin children. Defendant mother wanted to move to California after the divorce to live with her aunt and uncle. The arbitrator ruled in her favor, and the Court entered a judgment incorporating the arbitrator's decision without independently considering whether that decision served the children's best interests.

Plaintiff moved to vacate the arbitration award, but the court denied his motion. The Michigan Supreme Court has ruled that MCL 600.5080 requires the court to review the arbitrator's custody decision under the Child Custody Act, MCL 722.21 et seq. See Harvey v Harvey, 470 Mich. 186, 191-193, 680 N.W.2d 835 (2004). In fact, this independent judicial review is required despite the form of alternative dispute resolution used. Based on this holding, the case was remanded for an evidentiary hearing and the order denying the motion to vacate the arbitration award was reversed.

There was yet another appeal in this case, WL 1278475 (Mich.App. May 2005), resulting in an unpublished opinion. The trial court's decision was then reversed again when it modified the father's parenting time after the children did, indeed, move to California. At this point, the mother had been awarded sole physical custody and was permitted to move with the children even though there was no evidentiary hearing. The father, who was a doctor working in Michigan, was awarded parenting time of alternate weeks from Friday afternoon through the following Thursday morning to be exercised in California. He moved to change the parenting times because it was utterly impractical for him, especially since he was required to exercise this time in California.

The matter went to a referee hearing, and no record was made. Subsequently, the parties made competing arguments to the court, and the court finally entered the order advocated by defense counsel and modifying plaintiff's parenting time from alternate weeks in California to one week per month in Michigan from Saturday to Saturday, with plaintiff being responsible to fly to California to pick the children up and return them. Plaintiff filed for reconsideration, protesting again the lack of an evidentiary hearing, and then took an appeal when the motion for reconsideration was denied.

The Court of Appeals agreed that the trial court had erred yet again by not granting a hearing and not making findings of fact regarding the best interests of the children and the custodial environments before ruling, citing MCL 722.28; Terry v Affum (On Remand), 237 Mich App 522, 537 (1999). Further, because the court's order would change the custodial environment, the court should have required Defendant to present clear and convincing evidence that the change would be in the best interests of the child. It did not do this, and the case was remanded again to the same judge.

As they say, three times and you're out. There was a third appeal in this case resulting in yet another unpublished decision , WL 2994519 (Mich.App. Nov. 2005). This time, the court did hold an evidentiary hearing and then issued a written opinion and order. By now, the children had been in California from January 2004 through May 2005, so the court found that an established custodial environment existed with Defendant. Then, after considering the children's best interest, the court concluded that the children should stay with Defendant in California. The court did ask Defendant to provide a school schedule so that the parenting time could be modified eventually and also ordered her to maintain “web-cam communication twice per week.”

The case was reversed again, this time primarily because the court misapplied the custodial environment rule. The relevant time period according to the Court of Appeals was the time just prior to the divorce, not the time that had elapsed between the divorce and the post-judgment hearing. Further, the order that was in place just prior to the actual divorce judgment was a “temporary order” that granted the parties shared joint legal custody of the children with Defendant having physical custody in Michigan. Because of this temporary custody order, the Court of Appeals held that the trial court should have made a finding as to the established custodial environment at that time, citing MCL 722.27(1)(c); see also, Jack v Jack, 239 Mich App 668, 670 (2000). The court noted on appeal: “The circumstances surrounding the care of the children prior to the divorce, irrespective of the temporary custody order, are considered to determine whether they were being cared for in an established custodial environment. See Hayes v. Hayes, 209 Mich.App 385, 388; 532 NW2d 190 (1995); Schwiesow v. Schwiesow, 159 Mich.App 548, 557; 406 NW2d 878 (1987).”

Then the court ruled that MCLA 722.31 comes into play because of the court's continuing duty to assess the children's best interests even if there is an arbitration decision if the proposed move is more than 100 miles away. In this case, the court did not apply the new statute. Instead, the trial judge stated that “"[t]he reason for my decision to grant this relief is that she [defendant]--the change of domicile in Michigan was already ordered by Mr. Sherbow [the arbitrator] and because she doesn't have a place to stay here." Accordingly, the case was remanded yet again to consider whether there would be a change in the established custodial environment from that existing prior to the divorce judgment and whether the move should be approved in light of the factors set forth at MCLA 722.31.

Under Michigan law, an established custodial environment can be “joint” with both parents. See Skonieczny v Skonieczny, an unpublished decision. WL 2757353 (Mich.App. 2005).  In Skonieczny, the court noted that the existence of an established custodial environment is a question of fact, citing Hayes v Hayes, 209 Mich App 385, 387-388 (1995).   Further, an established custodial environment can exist in more than one home. Jack v Jack, 239 Mich App 668, 671 (2000), quoting Duperon v Duperon, 175 Mich App 77, 80 (1989). The parenting schedule and physical custody situation is not dispositive in deciding of the existence of an established custodial environment. Further, in Hayes, supra, the Court of Appeals ha held that an underlying custody order is "irrelevant" in the determination of whether a custodial environment exists. Hayes, supra at 388. Finally, the courts have held that the focus is not on "the reasons behind the custodial environment, but ... the existence of such an environment." Treutle v Treutle, 197 Mich.App 690, 693 (1992). Because of that approach, the court must distinguish between the established custodial environment and the environment that would, in fact, serve the children's best interests. They may not be the same. Those conclusions must be made independently with the existence of an established custodial environment impacting the standard of proof to be applied if a change of custody is determined to be in the minor child's best interest.

Further, a prior order is not dispositive of the existence of an established custodial environment, whether or not the order existed while the divorce was pending and whether or not the order was intended to be “temporary.” As put by the court in Skonieczny, “Although a court may properly consider the transitory nature of a temporary custody order and the upheaval involved in custody changes that occur prior to a final judgment, the trial court failed to cite any evidence that the minor child experienced such upheaval or uncertainty because of the litigation. Hayes, supra at 388, citing Bowers v. Bowers, 198 Mich.App 320, 326; 497 NW2d 602 (1993).... While uncertainty existed for plaintiff and defendant regarding the final custody determination, ‘the focus is on the circumstances surrounding the care of the children in the time preceding trial.' Hayes, supra at 388.”

In Skonieczny, the court noted that from the minor child resided with both parents from the time she was born until she was 7 months old. Both parents provided for her care. When plaintiff returned to work, both parties shared caretaking responsibilities, despite their disputes regarding the quality of care provided. The parties continued jointly caring for the child even after plaintiff moved out of the marital home Defendant provided care primarily during the day while plaintiff was working and plaintiff provided care in the evenings and most weekends.

The trial court erred when it found that no established custodial environment existed. It focused on the parties' problems with communication and their incompatibility between the parties rather than addressing the actual physical and psychological environment in place with both parents for the child. The evidence was that the child was happy, developing and emotionally attached to both parents. From this evidence, the court should have concluded that the child looked to both parents for guidance, discipline, the necessities of life and parental comfort.

Pursuant to MCLA 722.62a(1), when there exist "custody disputes between parents, the parents shall be advised of joint custody."

Joint custody is defined as meaning "an order that specifies either that 'the child shall reside alternately for specific periods with each of the parents,' or that 'the parents shall share decision-making authority as to the important decisions affecting the welfare of the child,' or both." Wellman v Wellman, 203 Mich.App 277, 279 (1994), quoting MCL 722.26a(7).

In determining whether joint custody is appropriate, a trial court is required to consider the best interests of the child and whether "the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child." MCL 722.62a(1); Mixon v Mixon, 237 Mich.App 159, 163 (1999). Such basic decisions have been deemed to include health care, education, religion and issues pertaining to daily decision-making and discipline. Fisher v Fisher, 118 Mich App 227, 232 (1982). "If two equally capable parents whose marriage relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children." Id. at 233; see also Wellman, supra at 279-280.

The trial court determined that the parties were uncooperative and could not agree on matters impacting the welfare of the child. Evidence at trial demonstrated that the relationship between the parties was acrimonious and vengeful. Plaintiff and defendant disagreed about treatment and food options for the minor child, they refused to communicate to resolve basic conflicts, they argued about clothing and manner of dress for their daughter, were selfish regarding their time with her and did not agree regarding which school district the minor child would ultimately attend. However, as discussed above a joint custodial environment had been established. Because a joint custodial environment was established, on remand, the circuit court must determine whether the parties inability to agree on important matters regarding the child constitutes clear and convincing evidence that the joint custodial arrangement should be discontinued. In making this determination, the circuit court should focus on disputes regarding matters relating to the welfare of the child, rather than the general disharmony between the parties, and whether a termination of the joint custodial environment, rather than a change in the parenting schedule, is in the child's best interests.

In “the olden days,” appeals from custody decisions resulted in decisions at the Court of Appeals level. If a trial court erred, the Court of Appeals just fixed the error in its decision.  There might be a new parenting plan there in the decision, or a new child support amount, or a new custody order. After Fletcher v Fletcher, ____ (___), however, the appellate court now remands the case to the trial court for further proceedings consistent with the appellate ruling. Bayati should be a referendum on whether or not that is a good idea. As they say, justice delayed is justice denied. By the time of the court's ruling, the children in Bayati had been in California for two years. They had been subject to multiple remands and court proceedings. There was no permanence. Most parents would have been impoverished by the time of the third appeal and multiple trial court and Friendof the Court proceedings.

While this case has lots of “practice tips” for family law practitioners, they certainly come at a high price. Here are some of the tips:

1. Use the best interests test in every custody or parenting time case.

2. Be aware that a judge could modify or ignore an arbitrator's decision or the parties' own agreement if it does not appear to comport with the children's best interests.

3. Determine whether an established custodial environment existed just prior to the filing of the motion or complaint. 

MCLA 722.27(1)(c) provides, in part:

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.

4. Be aware of the fact that an established custodial environment can exist with the mother, with the father, or with the parties jointly.

5. To modify an existing order that would change the existing established custodial environment, the petitioning party must allege and prove by clear and convincing evidence that the change will serve the best interests of the children.

6. Whether or not there is an established custodial environment only goes to the standard of proof, and nothing else.

7. Even if there is clear and convincing evidence available that a change will serve the best interests of the children, the court must hold an evidentiary hearing and put its findings and conclusions on the record if the court's order will change the established custodial environment.

8. Joint legal custody must be considered if requested by either party.

9. Disharmony between the parties is not the only factor to consider in determining whether joint legal custody serves the best interests of the child.

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