LEGAL STANDARDS FOR CHANGE IN CUSTODY OR PARENTING TIME PART II – WHAT IS AN ESTABLISHED CUSTODIAL ENVIRONMENT?
If you have been able to prove to the court that there is a change in circumstances or proper cause sufficient to re-examine the custody or parenting time for your child, the Court will then need to establish whether your child has an established custodial environment. This is an important step because it establishes the burden of proof required for the parent seeking a change in custody. If there is no established custodial environment for your child, the party seeking a change in custody only has to prove by a preponderance of the evidence (the lowest burden of proof in a civil case) that the change in custody would be in the best interests of the child. If an established custodial environment exists with either parent, with both parents, or with a third-party custodian, the party seeking a change in custody must prove by clear and convincing evidence (the highest burden of proof in a civil case) that the change in custody is in the best interest of the child. MCL 722.27; Arndt v Kasem, 156 Mich App 706, 402 NW2d 77 (1986); see also LaFleche v Ybarra, 242 Mich App 692, 619 NW2d 738 (2000).
The court is not interested in why an established custodial relationship exists or does not exist – it is simply interested in whether it does exist. In fact, this determination is so important to the court’s overall analysis that the parents cannot stipulate whether it exists. The existence of an established custodial environment is a question of fact solely for the trial judge to decide. Wilson v Gauck, 167 Mich App 90, 421 NW2d 582 (1988). Even if the parties have a “final” order or judgment that establishes custody, the court must still determine if there is an established custodial environment by looking to the actual circumstances of each case, regardless of what the custody order provides. Wealton v Wealton, 120 Mich App 406, 327 NW2d 493 (1982).
This sounds easy, right? Isn’t it clear where your child lives?
A custodial environment 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.” MCL 722.27(1)(c). The age of the child, the child’s physical environment, and the inclination of the custodian and the child as to the permanency of the relationship shall also be considered. It is entirely determined by the individual facts of your case.
This means that the established custodial environment is both physical and psychological in nature. It is established by providing your child with parental care, love, guidance, discipline, and attention that is appropriate for the child’s age over a significant duration of time. It is also important to establish that the child feels that the relationship in that environment is secure, stable, and permanent. Baker v Baker, 411 Mich 567, 309 NW2d 532 (1981). It is possible for your child to have an established custodial environment with both parents, even if the child primarily lives with only one parent who provides the majority of his or her financial support. Jack v Jack, 239 Mich App 668, 610 NW2d 231 (2000).
Repeated changes in physical custody and the uncertainty created by a pending custody or divorce trial, can hamper the establishment of a custodial environment for the child. Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993). In fact, even in cases where a temporary order has been in place for over a year, the court has found that this was not enough to establish a custodial environment. Moser v Moser, 184 Mich App 111, 457 NW2d 70 (1990). This is especially true where a parent, who is made the non-custodial parent by a temporary order, continues to actively pursue a relationship with the child. Curless v Curless, 137 Mich App 673, 357 NW2d 921 (1984).
Stability of the parent-child relationship continues to be an essential fact in determining whether there is an established custodial environment. If a child does not look solely to one parent for guidance, discipline, the necessities of life, and parental comfort while in that parent’s home, the court is unlikely to find that there is an established custodial environment in that home. Vander Molen v Vander Molen, 164 Mich App 448, 418 NW2d 108 (1987). However, the opposite is also true – if the child equally looks to each parent for guidance, discipline, love, and the necessities of life, the court can find that there is an established custodial environment with both parents. Foskett v Foskett, 247 Mich App 1, 634 NW2d 363 (2001).
In some circumstances, the court does not have to conduct this evaluation at all. If a requested change in custody or parenting time would not actually change the established custodial environment of the child, the parent seeking the modification must only prove by a preponderance of the evidence, that it is in the best interests of the minor child to modify parenting time. Shade v Wright, 291 Mich App 17; 805 NW2d 1 (2010). However, the court must still consider both the child custody factors, as set forth in MCL 722.23, and the parenting time factors set forth in MCL 722.27(a).
After the court determines whether an established custodial environment exists, it then has to determine whether it is in the best interests of your child to change custody or parenting time.
There are no easy answers to the difficult question of where a child should live, or whether a child custody order should be modified. The law changes constantly, and the courts are not always consistent in their rulings. Having an attorney who is skilled in litigating child custody matters can make all the difference in your case.
If you have questions, please feel free to submit them to us through our website, or call us for a free consultation at (269) 321-5059.