Issues in child custody

Issues: Child custody; Whether the trial court used the correct standard of evidence in analyzing the best interest factors having determined as a factual matter the child had an "established custodial" environment with both parents; Foskett v. Foskett; MCL 722.27(1)(c); Underwood v. Underwood; Fletcher v. Fletcher
Court: Michigan Court of Appeals (Unpublished)
Case Name: Christy v. Christy
e-Journal Number: 41415
Judge(s): Per Curiam - Hoekstra, Bandstra, and Donofrio
Since the trial court committed clear legal error when it used the incorrect evidentiary standard based on a preponderance of the evidence in changing the minor child's established custodial environment, the court reversed and remanded to the trial court for further proceedings. MCL 722.27(1)(c) provides, inter alia, "that a 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 interests of the child." The trial court determined the minor child had an established custodial environment with both parties. Thus, it could only change the custodial environment, by awarding primary physical custody to either party, on the basis of clear and convincing evidence the change was in the child's best interest. However, the trial court changed the child's established custodial environment based on application of the preponderance of the evidence standard, appropriate only where there is no established custodial environment. The court was bound to correct the clear legal error and reversed the trial court's custody determination and remanded the matter to the trial court for reevaluation of the best interest facts pursuant to the correct evidentiary standard. On remand, the trial court should consider up-to-date information including "that the child [] ha[s] been living with [defendant] during the appeal and any other changes in circumstances arising since the trial court's original custody order."
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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
MARC D. CHRISTY,
Plaintiff-Appellant,
UNPUBLISHED
December 23, 2008
v No. 284327
Dickinson Circuit Court
MARIA A. CHRISTY,
LC No. 06-014418-DM
Defendant-Appellee.
Before: Hoekstra, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Plaintiff appeals as of right that portion of the amended judgment of divorce awarding
physical custody of the parties’ minor child to defendant. We reverse and remand for further
proceedings consistent with this opinion.
Plaintiff asserts that the trial court committed clear legal error by applying a
preponderance of the evidence standard when analyzing the best interest factors set forth in MCL
722.23, having determined, as a factual matter, that the child had an established custodial
environment with both parents. We agree.
Custody orders are to be affirmed on appeal unless the trial court’s findings are against
the great weight of the evidence, the trial court committed a palpable abuse of discretion, or the
trial court made a clear legal error on a major issue. MCL 722.28; Fletcher v Fletcher, 447 Mich
871, 876-877 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994); Berger v Berger, 277 Mich
App 700, 705; 747 NW2d 336 (2008). This Court reviews a trial court’s application of the law
for clear error. Berger, supra at 706; Foskett v Foskett, 247 Mich App 1, 4-5; 634 NW2d 363
(2001). A trial court commits legal error when it incorrectly chooses, interprets or applies the
law. Fletcher, supra at 881; Berger, supra at 706.
MCL 722.27(1)(c) provides in relevant part that a "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 interests of the child." Clearly, then, if a court determines that an established custodial
environment exists with either or both parents, it is required by statute to apply the clear and
convincing evidence standard of proof to its determination whether a change in that custodial
environment is in the child’s best interest. Id.; Foskett, supra at 6. Here, the trial court
determined that the minor child had an established custodial environment with both parties.
-2-
Thus, it could only change that custodial environment, by awarding primary physical custody to
either party, on the basis of clear and convincing evidence that such change was in the child’s
best interest. Instead, however, the trial court changed the child’s established custodial
environment based on application of the preponderance of the evidence standard, appropriate
only where there is no established custodial environment. Foskett, supra at 6-7; Underwood v
Underwood, 163 Mich App 383, 390; 414 NW2d 171 (1987). This was clear legal error that we
are bound to correct. MCL 722.27(1)(c); Fletcher, supra at 881. Accordingly, the trial court’s
custody determination must be reversed and this matter remanded to the trial court for
reevaluation of the best interest factors pursuant to the correct evidentiary standard. On remand,
"the court should consider up-to-date information, including . . . that the child[] ha[s] been living
with [defendant] during the appeal and any other changes in circumstances arising since the trial
court’s original custody order."1 Fletcher, supra at 889.
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
1 Defendant acknowledges that the trial court applied an incorrect evidentiary standard to its
analysis, but asserts that the trial court’s legal error in this regard was harmless. We decline
defendant’s invitation to speculate that the trial court would have reached the same result had it
applied the correct legal standard. We express no opinion regarding the trial court’s analysis of
the best interest factors or its ultimate discretionary decision to award primary physical custody
to defendant.