Custodial environment

Terry R. Bankert PC is a Family Law Firm specializing in divorce, child custody, parenting time, child support, spousal support and grandparenting time in Flint MI. As a Flint Divorce Lawyer we have seen thousands of child custody cases. To remain at the expert level in domestic actions Terry Bankert , a Flint Michigan Divorce Attorney, has a committment to continuing education to serve his clients. The following case is a recent Court of Appeals case concerning a Flint MI case where the judge found that no custodial environment existed.

Q:IF MOM STAYS OUT ALL NIGHT WITH BOY FRIENDS, FIGHTS OPENLY WITH DADS FAMILY, BARELY SEES HER CHILDREN FOR 3 WEEKS IS SIGNIFICANTLY LESS INVOLVED IN THE CHILDRENS LIVES FOR A YEAR WHO SHOULD GET CUSTODY MOM OR DAD?
Issues:
Child custody;
Whether the trial court properly found there was no "established custodial environment" with either party and awarded the parties joint physical custody of the minor children; MCL 722.27(1)(c); Berger v. Berger; Joint physical custody (MCL 722.26a);
Whether the trial court properly considered § 26a(1)(b); Wright v. Wright; and "Best interest" factors; Fletcher v. Fletcher;
Whether the division of marital property was inequitable and based on erroneous findings of fact; Gates v. Gates; McDougal v. McDougal; Quade v. Quade
[This case version is modified for media presentation. Consult an attorney before you rely on its content. I have deleted some material. Material added is in CAPS ,* ,WITH ADDITION OF SPACING-Terry Bankert]

FINDING OF THE COURT OF APPEALS : THE ACTIONS OF PARENTS BEFORE A DIVORCE BEGINS IS MORE IMPORTANT THAN WHAT HAPPENS JUST AFTER A FILING.

The trial court , the 7th Judicial Circuit Gesesee/Flint MI, properly considered the best interest factors and relied on the interests of the children in determining the past cooperation problems of the parents should not preclude the children from having two custodial parents and did not abuse its discretion in awarding the parties joint physical custody of their children.

BACKGROUND
The parties were married in 2005 and have two sons. They separated in January 2007 when the plaintiff-father moved out of the marital home and filed for divorce on January 10, 2007.

SPOUSE LEFT NEAR TIME OF DIVORCE FILING, NO CUSTODIAL ENVIRONMENT, CHILDREN BOUNCING AROUND
The court concluded the trial court properly held there was no "established custodial environment" with either party where the children have been "bouncing" between the parties for the entire post-separation period, with a "notable lack of cooperation and communication" from the parties.
THE FACTS OF POST SEPARATION PERIOD DETERMINE NO CUSTODIAL ENVIRONMENT APPELLATE COURT UPHELD LOWER COURT
Thus, the post-separation period was marked by considerable instability, supporting the trial court's conclusion on this issue.
COURT OF APPEALS SAYS THE GENESEE COUNTY COURT MADE THE RIGHT DECISION
The court held the trial court did not abuse its discretion in finding, after analyzing the best interest factors, the only question was whether the factors should have been outweighed by MCL 722.26a(1)(b), the cooperation and communication of the parties.
THE PARENTS WANT TO COOPERATE IN THE FUTURE
Both parents expressed they were willing to make an effort to cooperate and communicate. The trial court warned them their future custodial rights were dependent on their ability to follow through with that effort.
APPEALATE COURT REVIEWED PROPERTY AND DEBT QUESTIONS WHICH ARE NOT INCLUDED HERE.
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S T A T E O F M I C H I G A N C O U R T O F A P P E A L S,RONALD WINFRED TOLBERT II,Plaintiff-Appellant,UNPUBLISHED December 18, 2008,v No. 284517
Genesee Circuit Court Family Division ,Judge Thelie,AUTUMN RAE TOLBERT,
LC No. 07-272254-DM,e-Journal Number: 41354
Defendant-Appellee.,Before: Servitto, P.J., and Owens and Kelly, JJ.,PER CURIAM.
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PLAINTIFF FATHER WANTS SOLE CUSTODY COURT AWARDED JOINT

Plaintiff appeals as of right the trial court’s judgment of divorce. On appeal, plaintiff
argues that the trial court erred in awarding the parties joint custody of their children and erred in its division of marital assets. We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
...
LOCAL COURT SAID THERE IS NO CUSTODIAL ENVIRONMENT

II. Established Custodial Environment
Defendant first argues that the trial court erred when it concluded that there was no
"established custodial environment" with either party. We disagree. Whether an established
custodial environment exists is a question of fact that this Court should affirm unless the trial
court’s finding is against the great weight of the evidence. MCL 722.28; Rittershaus v
Rittershaus, 273 Mich App 462, 470; 730 NW2d 262 (2007). A trial court’s finding of fact is
against the great weight of the evidence when the evidence clearly preponderates in the opposite direction. Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).
MCL 722.27(1)(c) provides:

DEFINITION OF CUSTODIAL ENVIRONMENT

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 the
permanency of the relationship shall also be considered.

IT IS A PHYSICAL AND PSYCHOLOGICAL CREATING SECURITY, STABILITY AND PERMANENCE.

An established custodial environment "is both a physical and a psychological environment that
fosters a relationship between custodian and child and is marked by security, stability, and
permanence." Berger, supra at 706.

TEST TO CHANGE WHEN THERE IS AN ENVIRONMENT

If there exists an established custodial environment, a party
seeking a change of custody is required to show by clear and convincing evidence that it is in the
child’s best interests. Id. at 710; MCL 722.27(1)(c). The trial court in this case concluded that
neither party had an established custodial environment.

INSTABILITY

Both parties currently live at their respective parents’ homes, although defendant moved
three times in the year following the separation. Both parties have apparently stable employment and make enough money to provide basic necessities for the children. While the parties have a parenting time agreement under which the children spend time with both parents, in the four months preceding trial, defendant only had parenting time on the weekends.


APPELLATE COURT SAID STABILITY WAS ARTIFICAL, FATHER KEPT MOTHER AWAY

The trial court concluded from this fact that plaintiff had established a more stable environment. However, the court concluded that this stability was somewhat artificial because plaintiff had *originally removed the children from the marital home,
*changed their school registration,
*and restricted defendant’s access to the children for three weeks until the parties reached a parenting time agreement.

THE CHILDREN BOUNCED BACK AND FORTH . JUST AFTER THE DIVORCE WAS FILED THE PARENTS DID NOT GET ALONG

The children have been bouncing between the parties for the entire post-separation
period, with a notable lack of cooperation and communication from the parties. The postseparation period has been marked by considerable instability.

THERE WAS NO CUSTODIAL ENVIRONMENT

Therefore, the evidence supports the trial court’s conclusion that there was no established custodial environment.

FATHER SAID LOCAL COURT DID NOT GET IT RIGHT ON CUSTODY

III. Joint Physical Custody and Best Interest Factors
Plaintiff next challenges the trial court’s award of joint physical custody. Plaintiff argues
that the trial court erred in its consideration of multiple statutory factors used to make the
custody determination. We will consider the factors in turn.

THE COURT HAS TO MAKE A BEST INTEREST FINDING

MCL 722.26a requires the trial court to "determine whether joint custody is in the best
interest of the child by considering" a list of factors. MCL 722.26a(1).

THE LOCAL COURT WILL BE OVERTURNED IF GROSS ERROR

The courts decisionregarding a custody award is reviewed for an abuse of discretion. Berger, supra at 705.

WHAT IS ABUSE OF DISCRETION

"An abuse of discretion exists when the trial court’s decision is so palpably and grossly violative
of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of
passion." Id. Underlying findings of fact by the trial court shall be affirmed on appeal unless
they are against the great weight of the evidence. Id. A finding of fact is against the great
weight of the evidence when the evidence clearly preponderates in the opposite direction. Id.
Questions of law are reviewed for clear legal error. Id. at 706.

DAD ARGUED THE LACK OF COOPERATION THAT HE CAUSED SHOULD KEEP THE LOCAL COURT FROM AWARDING JOINT CUSTODY

Plaintiff first argues that the trial court erred in its consideration of MCL 722.26a(1)(b):
"[w]hether the parents will be able to cooperate and generally agree concerning important
decisions affecting the welfare of the child." Plaintiff argues that the parties’ difficulty with
cooperation renders joint custody an untenable solution. In fact, the trial court did not make a
specific finding with regard to this issue, although its discussion evinces an awareness of the
factor.

THE CASE LAW SAYS THAT IF NO COOPERATION NO JOINT CUSTODY

the parties are incapable of cooperation, joint custody is not an option. Wright v
Wright, 279 Mich App 291, 299-300; ___ NW2d ___ (2008).

BAD COMMUNICATION AND PARENTING TIME EXCHANGES AT A POLICE STATION

The parties have had considerable difficulty with communication and cooperation during
the post-separation period. In order to avoid conflict, the parties exchange the children at a
police station.

DAD WOULD NOT TAKE PHONE CALLS FROM DEFENDANT

Plaintiff refuses to take defendant’s telephone calls because he feels that "all [he]
get[s] back on the other end is negativity." Defendant contends that she is willing to
communicate but that plaintiff "has made it impossible."

MOM SAID DAD WAS TRYING TO ALIENATE THE CHILDREN FROM ME

Defendant feels that plaintiff is trying to alienate her from the children. The court stated in its opinion: "The boys need both parents and both parents need to come to grips with that fact.

THE LOWER COURT TOLD THE PARENTS TO COOPERATE

Should either parent work to undermine the [c]ourt’s determination, they shall do so at their peril in terms of continued joint custody."

KIDS RIGHT TO TWO PARENTS GREATER THAN THE PARENTS FIGHTING

The court’s conclusion that, while the problems of communication are relevant, the best interests of the children trump these difficulties does not, as plaintiff suggests, indicate that the court failed to consider this factor.

The court, while recognizing the difficulties, did not determine that
the parties are incapable of cooperation. This factor, however, must be weighed against the "best interest" factors of MCL 722.23 in the court’s final discretionary decision, which we will discuss
infra. MCL 722.23a(1).

BEST INTEREST FACTOR ANALYSIS

Plaintiff next challenges the court’s factual findings on a variety of the best interest
factors:
FACTOR B
Factor (b) concerns "[t]he 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." MCL 722.23(b).

LOWER COURT SAID EQUAL

The trial court found this factor to be equal
between the parties, stating that both parties had "expressed their interest in religion and desire to continue programs in which the children are involved."

DAD SAID THE EXPERIENCE SINCE SEPARATION SHOULD FAVOR HIM

Plaintiff argues that because defendant has not been involved in the children’s school affairs since the separation, this factor should favor him.

ENEN THOUGH THE FIRST YEAR OF SEPARATION WAS ROUGH THE PARTIES HAVE THE CAPACITY AND DISPOSITION TO CARE FOR THE CHILDREN.

The trial court correctly noted that both parties have a desire to provide a good education
and religious upbringing for the children. The instability of the year following the parties’
separation notwithstanding, there is no evidence that defendant does not have the "capacity and
disposition" to provide these for the children. Wright, supra, at 300-301 (where father was only
acting as though he were interested in children). In fact, it appears that defendant was the
primary parent in charge of these concerns during the marriage. Thus, the trial court’s finding
was not against the great weight of the evidence.

FACTOR C
DAD SAYS MOM DID NOT CONTRIBUTE AND HA HAD A VARIETY OF JOBS

Factor (c) concerns "[t]he capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care." MCL 722.23(c). The trial court
found the parties equal with regard to this factor. Plaintiff argues that because defendant has not provided post-separation financial support for the children and has had multiple jobs recently,
this factor should favor him.

BOTH PARTIES HAD CHANGED JOBS

Both parties have had multiple jobs in the period since separation, but appear to have
stable employment now.

BOTH PARTIES LIVE WITH PARENTS

Both parties live with their parents. While plaintiff may currently
make slightly more money than defendant, this difference is accounted for by the trial court’s
child support order. There is no evidence that either party lacks the "capacity and disposition" to provide basic care for the children. The trial court’s finding was not against the great weight of
the evidence.

FACTOR D
COURT FOUND DAD AND HIS FAMILY BLOCKING THE DEFENDANT

Factor (d) concerns "[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity." MCL 722.23(d). The trial court
found this factor to be equal between the parties because, while the current environment is stable, the stability is "maintained on an artificial basis to the extent [p]laintiff and his family are
blocking [d]efendant’s access to her children." Plaintiff argues that the trial court erred in
concluding that plaintiff is creating instability in the children’s lives and maintains that defendant has demonstrated an inability to provide a stable environment for the children.
*Plaintiff took the children from the marital home because he thought defendant was
creating an unstable environment for the children.
*He blocked access to the children for three weeks until the parties could reach a parenting time agreement .
*Defendant alleges that plaintiff still attempts to maintain control over the children. The latest parenting time agreement gives defendant parenting time on the weekends only.
*There remains considerable lack of cooperation regarding parenting time and a lack of communication regarding the children.

COURT OF APPEALS SAID DAD DID NOT CREATE A STABLE ENVIRONMENT

The trial court’s conclusion that this is a "stable, satisfactory environment" is not supported by the evidence.

Moreover, this situation has only existed for a year. The court’s further conclusion that this
"stable" environment was artificially created by plaintiff’s actions is inapposite given our
conclusion that this was not a stable environment. Nevertheless, the evidence does support the
court’s final conclusion that factor (d) does not favor either party. The past year has been
marked mostly by instability.

Plaintiff also argues that defendant’s behavior during the end of the marriage and the
separation period is evidence that she cannot provide a stable environment for the children. We
observe that factor (d) concerns the stability of the children’s environment leading up to the
custody determination and is not a prediction of future stability, which is covered by factors (b)
and (c). This argument is unavailing.

FACTOR E
DAD LIVES WITH HIS PARENTS AND THEIR HOUSE IS CLEAN, NOT RELEVANT SAYS THE APPELLATE COURT

Factor (e) concerns "[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes." MCL 722.23(e). The trial court found this factor to be equal
between the parties, noting, "Each continues to find their way in establishing their homes."
Plaintiff argues that this factor should favor him because his parent’s home provides a clean,
spacious, stable environment for the children. The adequacy of plaintiff’s parents’ house is
irrelevant to the permanence of either home environment, especially because the adequacy of
defendant’s parents’ house has not been impugned. See Fletcher v Fletcher, 447 Mich 871, 884;
526 NW2d 889 (1994) (distinguishing between acceptability and permanence of custodial
homes). There is no evidence upon which to conclude that the trial court’s finding was against
the great weight of the evidence.

FACTOR F
DAD SAYS MOM COMMITTED BAD ACTS, COURT SAID THEY DID NOT AFFECT THE CHILDREN

Factor (f) concerns "[t]he moral fitness of the parties involved." The trial court found
this factor to be equal between the parties because "neither [party] has acted overtly to the
detriment of the children." Plaintiff argues that defendant committed numerous acts of bad
judgment that detrimentally affected the children. We note that: "[Moral fitness] . . . relates to a
person’s fitness as a parent. To evaluate parental fitness, courts must look to the parent-child
relationship and the effect that the conduct at issue will have on that relationship." Fletcher,
supra at 886-887.

CREDIBILITY AND BAD ACTS

Much of plaintiff’s argument relates to questions of credibility. It is the trial court’s
responsibility to resolve questions of credibility and this Court should not lightly call that into
question. Wright, supra at 299.
*Plaintiff argues primarily that defendant engaged in extramarital
affairs,
*introduced the children to her boyfriends, and
*socialized late into the night and came home drunk.

NO PROOF BAD ACTS AFFECTED CHILDREN

Defendant rebutted each of these contentions and the trial court was in the best
position to make a determination regarding the parties’ credibility and the weight of the
evidence. Moreover, there was no specific evidence of conduct by defendant that was directly
detrimental to her fitness as a parent.

DAD SAYS MOM MORALLY UNFIT

Plaintiff also argues that defendant demonstrated moral unfitness by
*engaging in a heated conflict with plaintiff’s father in front of the children.
*During an argument (one of many) about the exchange of the children, defendant kicked plaintiff’s father’s van, shouted obscenities, and hit him on the shoulder in the presence of the children. Unfortunately, conflict between the parties with respect to the exchange of children seems to be commonplace.
*One instance of defendant becoming verbally and physically aggressive, does not call into question her moral fitness as a parent, generally. The trial court’s finding that factor (f) was equal between the parties was not against the great weight of the evidence.

FACTOR F
MOM MORE ACTIVE IN SCHOOL

Factor (h) concerns "[t]he home, school, and community record of the child." MCL
722.23(h). The trial court found that this factor favored defendant because "she was more active with school projects, homework, and school functions." Plaintiff argues that because defendant
admitted that she was not involved with the children’s schoolwork in the post-separation period, this factor should favor him.

MOM MOST ACTIVE WITH CHILDREN DURING MARRAIGE BUT DAD TOOK THIS AWAY DURING THE SEPARATION

The evidence reveals that defendant was primarily responsible for support and
involvement in the children’s activities during the marriage but that plaintiff has taken the
majority of these responsibilities in the meantime. The court’s simple statement that defendant
has been more involved is inaccurate without clarification.

BOTH PARTIES DEMONSTRATED AN INTEREST COURT OF APPEALS SAID THE LOWER COURT WRONG ON THIS ISSUE

What is more important is that both parties have demonstrated, at least, "a sincere interest in each child’s well-being at home, in school, and in the child’s other activities." Wright, supra at 302-303. This factor does not clearly favor either party and the trial court’s conclusion that the factor favored defendant was against the great weight of the evidence.

FACTOR J
PARTIES ABILITY TO GET ALONG

Factor (j) concerns "[t]he 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." MCL 722.23(j). The trial court found that this factor "heavily favor[ed]" defendant because of plaintiff’s attitude and conduct toward defendant since the separation.

Plaintiff argues that the trial court ignored the motivation for plaintiff’s actions and
ignored the evidence that defendant failed to contain her own anger in front of the children
during the incident with Tolbert.

Plaintiff contends that this factor does not favor either party.
The parties have a considerable amount of animosity between them and are not capable
of easily cooperating and communicating.

The trial court focused on the fact that plaintiff took
the children without consulting defendant and he "assumed a superior posture to [defendant]
through the trial." The trial court is in a better position to judge the attitude and behavior of the
parties toward one another. Wright, supra at 299. Plaintiff did take the children and prevent
them from freely seeing defendant. While other evidence showed a mutually destructive
relationship between the parties, the evidence did not clearly preponderate against the trial
court’s finding.

FACTOR K
NO MEANINGFUL DOMESTIC VIOLENCE

Plaintiff also contends that the trial court erred in concluding that factor (k) was
inapplicable to this case. Factor (k) concerns domestic violence. MCL 722.23(k). The scant
evidence of the confrontation between defendant and plaintiff’s father does not reveal that it was an incidence of domestic violence. The trial court did not err in judging this factor to be
inapplicable.

The trial court awarded joint custody despite the fact that the factors analysis slightly
favored defendant. We disagree on the extent to which the factors favor defendant because
factor (h) favored each party equally, but this slight difference does not render the trial court’s
discretionary custody determination "palpably and grossly violative of fact and logic." Berger,
supra, 277 Mich App 705. In fact, the Child Custody Act, MCL 722.21 et seq., "is intended to
promote the best interests of the children, and it is to be liberally construed." Id.; MCL
722.26(1).
*****
The trial court’s determination that "the boys need both parents and both parents
need to come to grips with that fact" comports with the goals of the Child Custody Act.
*****
There only remains the question of whether the best interest factors should have been
outweighed by MCL 722.26a(1)(b), the cooperation and communication of the parties. Here,
again, the trial court relies on the interests of the children to determine that the past cooperation problems of the parents should not preclude these children from having two custodial parents.
Both parents have expressed that they are willing to make an effort to cooperate and
communicate. Moreover, the trial court warned the parents that their future custodial rights are dependant on their ability to follow through on that effort. The trial court’s ultimate custodial
determination is a discretionary ruling, considering all the factors. The trial court did not abuse
its discretion.
...END HERE OPINION COVERS SEVERAL OTHER ISSUES