2.Whether an "established custodial environment" (ECE) existed with the plaintiff-father; MCL 722.27(1)(c); Berger v. Berger; An established custodial environment exists 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. [MCL 722.27(1)©).]
“An established custodial environment is one of significant duration in which a parent provides
care, discipline, love, guidance, and attention that is appropriate to the age and individual needs
of the child.” Berger, 277 Mich App at 706. If an established custodial environment exists with
one parent or with both parents, a trial court may not change the custodial environment unless
there is clear and convincing evidence that a change in the custodial environment is in the child’s
best interests. MCL 722.27(1)(c); In re AP, 283 Mich App 574, 601-602; 770 NW2d 403
(2009). However, if no established custodial environment exists, the trial court may change
custody or enter a custody order if a preponderance of the evidence establishes that the change
serves the child’s best interests. Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345
(2009), aff’d 486 Mich 81 (2010).
3.Consideration of the reasons behind the custodial environment; Treutle v. Treutle;
Because an established custodial environment existed with plaintiff at the time of trial,
the trial court could only change the custodial environment if there was clear and convincing
evidence that such a change was in the children’s best interest. MCL 722.27(1)(c); In re AP, 283
Mich App at 601. The trial court’s use of the preponderance of the evidence standard,
appropriate only where there is no established custodial environment, Pierron, 282 Mich App at
245, was clear legal error. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
4.Use of the preponderance of the evidence standard; In re AP; Pierron v. Pierron; Fletcher v. Fletcher;
5.The trial court's findings on statutory "best interest" factors (c) & (f); MCL 722.23; Corporan v. Henton
CASE: Court: Michigan Court of Appeals (Unpublished 03/22/2011),Case Name: LXXXX (DAD PLAINTIFF)v. CXXXXXXX (MOM DEFENDANT), e-Journal Number: 48441,Judge(s): Per Curiam – Shapiro, Hoekstra, and Talbot No. 298058, DIVORCE Gladwin Circuit Court, LC No. 2009-004709-DS, Flint Divorce Attorney Terry R. Bankert 810-235-1970 comments CAP’S or citer [trb] See: http://www.attorneybankert.com/
—FACTS AND LAW
FACT SUMMARY OF THIS CASE :The court held that the trial court used the wrong standard in deciding the plaintiff-father's custody request because its finding that the children did not have anESTABLISHED CUSTODIAL ENVIRONMENT ( ECE) with him was against the great weight of the evidence. Thus, the court, MICHIGAN COURT OF APPEALS, reversed the GLADWIN trial court's order awarding plaintiff and the defendant-mother joint legal custody and defendant sole physical custody of the parties' children, and remanded.
DOMESTIC CASE OVER VIEW
WHAT HAPPENS WHEN THE COURT FINDS THERE IS NO CUSTODIAL ENVIRONMENT?
The GLADWIN trial court found that an ECE did not exist with either party.
COURT REVIEWED TWO TIME PERIODS
The trial court divided its custodial environment analysis into two time periods -
BEFORE FATHERS INCARCERATION
(1) from 6/08 to 7/09, the period before plaintiff's incarceration when he, defendant, and the children primarily resided in one household and
AFTER FATHERS INCARCERATION
(2) from 7/09 to the time of trial, the period after plaintiff's incarceration when he and the children lived together and defendant lived in another city.
GLADWIN FOUND BEFORE INCARCERATION MOM HAD ECE
The trial court found an ECE existed with defendant before plaintiff's incarceration, and this ECE was extinguished after his incarceration.
DAD NEVER HAD ECE SO PREPONDERENCE USED
The trial court concluded that an ECE never existed with plaintiff and thus, used the preponderance of the evidence standard to determine the children's custody.
COURT RELIED ON THESE FCATS AS PRESENTED
As to time period (1), the court concluded that defendant's testimony was that both she and plaintiff provided the "day-to-day care" for the children. Plaintiff testified that he primarily took care of them, giving them baths, cooking them dinner, taking them to the doctor, doing their laundry, buying them clothes, and playing with them. Plaintiff testified that during the parties' August-February separation period, the children lived with him four to five days a week. Defendant indicated that during that period, she had the children every other day during the week and every other weekend.
COURT OF APPEALS VS GLADWIN COURT DIFFERENCE IN CONCLUSION
Based on the parties' testimony about time period (1), the MICHIGAN COURT OF APPEALS court held that the GLADWIN trial court's finding that an ECE existed with defendant but not with plaintiff was against the great weight of the evidence.
MICHIGABN COURT OF APPEALS RELIED ON THE FOLLOWING
As to time period (2), the testimony showed that plaintiff lived with the children and his mother while defendant lived in another city. Plaintiff testified that he had no problems raising the children in defendant's absence. He continued to cook for them, do their laundry, and get them ready for school. They participated in school and outdoor recreational activities together, and he took them to medical appointments. Defendant saw the children much less frequently than plaintiff during this period.
DAD HAD ECE EXCEPT DURING INCARCERATION
The court concluded that in making its findings as to time period (2), "the trial court improperly concerned itself with the reasons behind the custodial environment." Without considering the reasons behind the custodial environment, the court held that the evidence showed that an ECE existed with plaintiff. Except during his incarceration (when the children were primarily cared for by his mother), "plaintiff consistently provided the care, discipline, love, guidance, and attention that the children required."
---END FAMILY LAW DISCUSSION
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