A SCHOOLCRAFT court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment. MCL 722.27(1)(c).
IN SCHOOLCRAFT COUNTY ;Whether an established custodial environment exists is a preliminary and essential determination. Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), aff’d, 451 Mich 457, 547 NW2d 686 (1996). The trial court must make clear findings on this issue before deciding custody. Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). This includes a request for sole custody when the initial order was for joint custody. See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987).
Whether an established custodial environment exists fixes the burden of proof on the SCHOOLCRAFT parent wanting to establish or change the type of custody granted to each parent.
If an established custodial environment exists, a change may be made only on clear and convincing evidence that the change is in the best interests of the child. MCL 722.27; Duperon; Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986); see also LaFleche v Ybarra, 242 Mich App 692, 619 NW2d 738 (2000) (when custody dispute is between parents, change may be made only on clear and convincing evidence even if custodial environment actually exists with child’s grandparents).
IN A SCHOOLCRAFT CASE If no established custodial environment exists, custody may be decided by showing by a preponderance of the evidence that the proposed custodial arrangement would be in the best interests of the child, using the best interest factors identified in MCL 722.23. See Pierron v Pierron, 486 Mich 81, 782 NW2d 480 (2010); Hall v Hall, 156 Mich App 286, 401 NW2d 353 (1986).
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.
MCL 722.27(1)(c).
The existence of an established custodial environment depends on a custodial relationship of a significant duration in which the child is provided the parental care, discipline, love, guidance, and attention appropriate to his or her age and individual needs. It is an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability, and permanence. Baker v Baker, 411 Mich 567, 309 NW2d 532 (1981). see http://www.attorneybankert.com
Whether an established custodial environment exists is entirely a factual determination. Ireland; Blaskowski v Blaskowski, 115 Mich App 1, 320 NW2d 268 (1982). The court is not concerned with why the custodial environment exists, but only that it does. Treutle v Treutle, 197 Mich App 690, 495 NW2d 836 (1992); Schwiesow v Schwiesow, 159 Mich App 548, 406 NW2d 878 (1987). The trial court’s findings will be sustained unless the evidence clearly preponderates in the opposite direction. Ireland; see also Thames v Thames, 191 Mich App 299, 477 NW2d 496 (1991).
An established custodial environment may exist with both parents even if one parent provides the children’s primary residence and the majority of financial support. Jack v Jack, 239 Mich App 668, 610 NW2d 231 (2000). see http://www.dumpmyspouse.com
Generally, the parties’ stipulations as to facts are binding on the court. However, the existence of an established custodial environment is a question too important to be left to the parties and is a question of fact for the trial judge to resolve based on the statutory factors. Wilson v Gauck, 167 Mich App 90, 421 NW2d 582 (1988).
Where there is joint custody, a court can find an established custodial environment in both homes based on the stability and continuity of the living arrangements. Duperon (initially, children stayed in marital home and parents took weekly turns living with children); Nielsen.In determining whether a proposed change would alter the child’s established custodial environment, the court should consider the time the child will spend with each parent as a result of the proposed change. See Pierron (finding that proposed change of school to one that is 60 miles from children’s present school would, under the facts in that case, require only minor adjustments to plaintiff’s parenting time with children and, accordingly, did not result in change in established custodial environment).
Many in domestic cases also have financial concerns. see http://www.nojokebeingbroke.com
Thursday, April 21, 2011
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