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"Best Interest Factors," Analyzed |
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Best interests of the child are defined in the Child Custody Act of 1970, MCL 722.23 (Michigan Compiled Laws). This grid may help you in making required determinations, keeping in mind, as was stated in Lustig v. Lustig, 99 Mich. App. 716 (1980), "[This] determination is much more difficult than merely tallying runs, hits, and errors in box score fashion following a baseball game."
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(A) Love, affection, other emotional ties (B) Capacity to give love, affection, guidance (C) Capacity of parties to provide for the child (G) Mental and physical health (H) Home, school, and community record (I) Reasonable preference of the child |
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This information comes directly from the Washtenaw County website which is "public domain." Except for formatting, no changes have been made to this material. It is included herein with the specific knowledge of the County webmaster. Further, as a Washtenaw County Circuit Court writing, this is neither binding precedent nor governing dictate even on other judges in this specific county. Footnote 1: Written by The Honorable Judge John N. Kirkendall, Family Division, Washtenaw County Trial Court, Ann Arbor, Michigan. The author gratefully acknowledges contributions from the following lawyers and judges: Craig S. Ross, Esq., Washtenaw County Friend of the Court's Office; Norman N. Robbins, Esq., domestic relations practitioner, author and lecturer; Hon. Bruce A. Newman, Genesee County Probate Judge; Hon. Joan E. Young, Oakland County Circuit Judge; and Monika H. Sacks, domestic relations practitioner, author and lecturer. They have reviewed the chart and suggested additions and improvements. I thank Stuart D. Lurie, law clerk, who has helped revise the chart since its first publication. Errors are mine. The chart should be viewed as "evolving", not "finished." Therefore, the reader's suggestions and comments will be helpful. Footnote 2: MCL 600.1021; 600.841. Some early cases also applied "best interests" standards in reviewing a custodial parent's request to change the domicile of a minor child. Panels of the Court of Appeals have most recently adopted the test formulated in D'Onofrio v D'Onofrio, 144 NJ Super 200, 365 A2d 27 (1976). See Mills v Mills, 152 Mich. App 388 (1985); Dick v Dick, 147 Mich. App (1985); Bielawski v Bielawski, 137 Mich. App 587 (1984); Scott v Scott, 124 Mich. App 448 (1983); Henry v Henry, 119 Mich. App 319 (1981). The latest line of Michigan cases rejected the "best interests of the child" test applied earlier in the cases of Watters v Watters, 112 Mich. App 1 (1981) and Hutchins v Hutchins, 84 Mich. App 236 (1978). The D'Onofrio test is, generally, will the proposed move 1) improve quality of life of child and parent; 2) allow reasonable opportunity for visitation to preserve parental relationship; and is move 3) inspired primarily by desire to defeat visitation 4) inspired by desire for financial advantage with respect to child support obligations. Emphasis rather than being on the best interests of the minor child, is now "what is in the best interests of the new family unit, i.e., custodial parent and child." See Fred Morganroth, "Changing the Minor Child's Domicile — Some New Considerations," Michigan Family Law Journal, Special Addition, Child Custody (spring, 1996). Footnote 3: Lustig and Baker v Baker, 411 Mich. 567 (1981) are cases affirmed on appeal where a less than full fact finding was undertaken by the trial court. The Baker court said, "Neither the Child Custody Act nor the General Court Rules require a trial court deciding a child custody dispute to comment upon every matter in evidence or declare its acceptance or rejection of every proposition argued by the parties." The Child Custody Act directs a trial court to award custody after evaluation and consideration of particular factors which are prescribed by statute. Lewis v Lewis, 73 Mich. App. 555 (1977). Fletcher v Fletcher, 200 Mich. App. 505 (1993), explains that courts must truly do a balancing of the factors, that is, list both the strengths and weaknesses of each party on each issue — not just the strengths of one. On appeal [Fletcher v Fletcher 447 Mich. 871 (1994)], the court reverses and remands on other grounds. Footnote 4: Rossow v Aranda, 206 Mich. App 456, 458 (1994). "MCL 722.27(1)(c); MSA 25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either the proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors. See MCL 722.27(1)(c); Schubring v Schubring, 190 Mich. App. 468 (1991); Mann v Mann, 190 Michigan 526 (1991). In an unpublished case (Kuehnle v Kuehnle, unpublished opinion per curiam of the Court of Appeals, decided July 2, 1996, Docket No. 184220) the Court of Appeals found effective denial of visitation rights a proper cause for modification of a judgment. In Kuehnle visitation was subverted by placing numerous conditions on the one month's visitation provision. In Schubring, the court found that a father's contemplated move to Florida with the minor child constituted a change of circumstances sufficient for the court to revisit the issue of custody. Dehring v Dehring, 220 Mich. 163 (1996) points out that an intrastate change in the children's domicile, by itself, does not constitute proper cause or change of circumstances upon which to base a change in custody. Footnote 5: There are two separate levels of sufficiency of evidence for "best interests" findings of fact. When there is an established custodial environment, clear and convincing evidence is the standard. McMillan v McMillan, 97 Mich. App. 600 (1980). If there is no established custodial environment, the standard is preponderance of evidence. Lewis v Lewis, 138 Mich. App. 191 (1984). See footnote 18. Footnote 18: Freeman v Freeman, 163 Mich. App. 493 (1987). Court may not determine a biological preference exists without reference to its relevance or whether it is substantiated by evidence. Here court awarded a daughter to her mother and articulated that a natural biological preference dictated the result. Wilcox v Wilcox, 100 Mich. App. 75 (1980) dealt with joint custody. The Court ordered two children 9 and 12 to live with each parent every other week. While joint legal custody (ability of parents to make decisions that significantly affect the life of the child, such as education and health care) was appropriate, joint physical custody (decisions about immediate supervisory control) was not appropriate because the parties were mutually unable to agree to such an arrangement. The court points out that a mere objection by one parent does not preclude joint custody award. (The appellate court may also have been reacting here to what was an obviously awkward solution to a custody problem.) In re Weldon, 397 Mich. 225 (1976), deals with third party custody. In a convoluted termination of rights and adoption case, the Supreme Court points out that third parties may be awarded custody over a parent, even though the parent is not unfit and had not neglected or abandoned the child. Presumption that parental custody is in the best interests of the child may be rebutted by evidence of the best interest of the child which does not relate to parental fitness. Modification of prior orders. Bowie v Arder, 411 Mich. 23 (1992) overrules In re Weldon: "...the decision in Weldon is in conflict with our holding in Ruppel [Ruppel v Lesner, 421 Mich. 559 (1984)] that the Child Custody Act does not create substantive rights of entitlement to legal custody of a child. Further, the decision in Weldon is also called into question by the legislature's subsequent amendment of the act explicitly giving guardians, and not other third parties, standing to petition for custody. Because the Weldon decision, giving standing under the act to a third party who does not have a legal right of entitlement to the custody of a child, is inconsistent with Ruppel and our decision here, it is overruled." The court later stated: "Therefore, we affirm our holding in Ruppel that a third party cannot create a custody dispute by simply filing a complaint in Circuit Court alleging that giving legal custody to the third party is in the best interests of the child. A third party does not have standing to create a custody dispute not incidental to divorce or separate maintenance proceedings unless the third party is a guardian of the child or has a substantive right of entitlement to custody of the child. The legislature has not created a substantive right to custody of a child on the basis of the child's residence with someone other than a parent, and this Court is not in a position to do so." McMillan v McMillan, 97 Mich. App. 600 (1980) provides that clear and convincing evidence is the standard when one seeks to modify a previous child custody order. Of what relevance is this case to a situation where a parent seeks to terminate a limited guardianship where the terms of the placement plan have been fulfilled; where the terms have not been fulfilled; where a parent seeks to terminate a full guardianship where there is no placement plan but there is evidence that the purpose of the guardianship as understood by the parties has been accomplished; where there is not such evidence and an established custodial environment can be shown? Moser v Moser, 130 Mich. App. 97 (1983) states that even if mom and dad had an agreement that she would receive custody upon establishing herself financially, once she obtained that status, she would still have to prove by clear and convincing evidence that it was in the best interests of the children to change their established custody under the order. (The wife in this case characterized this as "custody by trick".) There are other cases cited in the case going the other way on this "conditional custody" theory. This case may have particular relevance to a guardianship where mom agrees to get the children back after prison, successfully completing drug rehabilitation, and so on. Mazurkiewicz v Mazurkiewicz, 164 Mich. App. 492 (1987) defines an established custodial environment as one where time is an important factor. It should be of significant duration during which the child is given parental care, discipline, love, guidance that are age and needs appropriate and where the relationship is marked by qualities of security, stability, and permanence. One should look to the situation in the years immediately preceding the action. Schwiesow v Schwiesow, 159 Mich. App. 548 (1987); Breas v Breas, 149 Mich. App. 103 (1986) where it was held that no custodial environment had been established where mom had physical custody, there was a pending divorce, dad was seeking custody and where the environment provided the child was not permanent. Also see Curless v Curless, 137 Mich. App. 673 (1984) with the same result. Curless makes the observation that in cases where the custodian discourages the children from seeing the non-custodial party and fails to cooperate with visitation, this works against making a finding that there is an established custodial environment. In Mazurkiewicz, it may also have helped that the Friend of the Court had made the determination that there was no custodial environment. See Blaskowski v Blaskowski, 115 Mich. App. 1 (1982), where the court states that it makes no difference how the established custodial environment arises, through a temporary or a permanent order, but whether it exits t that is important. Baker v Baker, 411 Mich. 567 (1981) states that mere temporary order does not create an established custodial environment. One must look at all the circumstances. In the Baker case, the court determined that the child's contacts with the community developed when the family was together and are not sufficient to make an established custodial environment for purposes of the custody dispute at this time. Bowers v Bowers, 190 Mich. App. 51 (1991) makes it clear that an established custodial environment may be in place as a consequence of a temporary court order. It is the existence of the environment and not how it came into being that is important. Further, once established, a custodial environment may not be changed absent clear and convincing evidence. In Carson v Carson, 156 Mich. App. 291 (1986), the Court of Appeals explains that the "Clear and convincing evidence is not merely an evidentiary rule which would allow a change of custody based upon clear and convincing evidence that a marginal improvement in the child's life would occur." Overall v Overall, 203 Mich. App. 450 (1994) provides that parties may stipulate that there is no established custodial environment where there is a shared custodial arrangement. In Gulyas v Gulyas, 75 Mich. App. 138 (1977), Hon. Dorothy Riley states in her dissent, parenthetically, that best interests factors ought not to be used by trial judge to express outmoded notions of importance of mom being near the hearth and home. Bowers v Bowers, 198 Mich. App. 320 (1993) states that expectation of permanence is a factor in determining if custodial environment has been established. It further states that if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort, that should be considered. The court further points out that the age of the child, physical environment, and the inclination of the custodian and the child regarding the permanency of the relationship must be considered. Custody orders alone do not establish a custodial environment. Also, where a parent voluntarily and temporarily released children to father, it does not change the established custodial environment. Theroux v Doerr, 137 Mich. App. 147 (1984). A court should not change custody based upon violation of court orders. Adams v Adams, 100 Mich. App. 1 (1980). Interracial factors in determining custody are irrelevant. Edel v Edel, 97 Mich. App. 266 (1980). Napora v Napora, 159 Mich. App. 241 (1986) showed that parties' stipulation regarding custody was not binding upon the trial court that was required to make a determination in the best interests of the minor child irrespective of the agreement. Truitt v Truitt, 172 Mich. App. 38 (1988) explains the use of the Friend of the Court report in child custody disputes. It is error to admit the report where objected to and a hearing is requested; court may consider it, but it may not be introduced in evidence unless stipulated to. In a request for a change of domicile, best interests factors are appropriate to consider and the standard of proof is a preponderance of the evidence. Watters v Watters, 112 Mich. App. 1 (1981). The Court has discretion to use child psychologist in determining a child custody matter and the weight to be given the testimony is subject to the court's discretion. Siwik v Siwik, 89 Mich. App. 603 (1979). Glover v McRipley, 159 Mich. App. 130 (1987) instructs trial courts how to proceed when there is a collision of presumptions: that is, there is a presumption in favor of a natural parent and there is a presumption in favor of not changing an established custodial environment. In this case, the burden of persuasion is with the parent challenging the established custodial environment with the third party custodian. Proof is by a preponderance of the evidence. |
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"The Messy (Legal) Steps of Divorce" |
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"The Messy (Legal) Steps of Divorce" |
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"The Messy (Legal) Steps of Divorce" |
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