On August 22, 2017, the Michigan Court of Appeals in the case of Roe v. Roe upheld the trial court’s decision to change child custody from the mother to the father.
In the Roe case, the parties married in 2006, separated in 2010, and divorced in 2014. The father is a soldier in the United States Army and was deployed numerous times during the course of the marriage. The parties have three minor children together and the children resided primarily with the mother since 2010. The trial court entered an order in 2012 granting the mother sole physical custody of the minor children.
The father’s request to change child custody was granted by the trial court.
We created a checklist to change child custody in Michigan and a review of the Roe case provides support for the idea that the Michigan Court of Appeals followed the same steps in deciding the case.
The first step involved to change child custody and modifying a Michigan child custody order is called the threshold requirement. The threshold requirement is set forth in Michigan Compiled Laws section 722.27(c). Which provides the statutory authority for a court to change custody in Michigan and modify a child custody order. The threshold requirement is a proper cause or a change of circumstances and the seminal case law on the topic can be found in our journal article: “When Circumstances Change“.
In case of Roe, the court determined that: “at the time of the original order, the [father], due to his work and his commitment with the military, was not in a position where he could provide care and physical custody for the children” a circumstance that “has certainly changed.”
The second step to change child custody in Michigan (and after a determination of the proper cause or change of circumstances threshold requirement is met), is the existence of an established custodial environment. An established custodial environment exists with a parent if a child naturally looks to that parent for guidance, discipline, the necessities of life and parental comfort. If an established custodial environment exists with one parent, a court cannot change or modify an existing Michigan child custody order unless there is clear and convincing evidence. If an established custodial environment exists with both or neither parent, a court cannot change or modify an existing Michigan child custody order unless there is a preponderance of the evidence to do so.
In the case of Roe, the court determined “the [father], due to his work and his commitment with the military, was not in a position where he could provide care and physical custody for the children” Therefore, there was an established custodial environment with the mother. The court further noted that: “there have been a number of issues which call into question the stability of the existing custodial environment.” Notwithstanding, the burden of proof requires the father to prove by clear and convincing evidence to change child custody.
The third step required to change child custody in Michigan is an examination of the Best Interest of the Child factors. Michigan child custody law provides that child custody orders are subject to modification at any time the best interest of the child so requires.
As set forth above, the existence of an established custodial environment with the mother required the father to prove by clear and convincing evidence that the best interest of the children supported a change of custody.
The Roe court then addressed each best-interest factor under Michigan Compiled Laws section 722.23, finding that most of the factors either favored father or were neutral. For example, with regard to the “length of time the child or children have lived in a stable, satisfactory environment, and desirability of maintaining continuity,” the court found that there “has been a number of problems,” explaining that “the failure to be responsible in terms of the instincts to protect the children is a question very much that unfortunately I have answered in the negative with respect to mom.” The court stated that the children “shouldn’t be exposed” to their maternal grandfather, a “registered sex offender.” The court noted that the allegations regarding sexual abuse by another child living in the home were “perhaps unproven allegations,” but reasoned that “there’s enough that there is an obligation to protect children, and it does not appear that mom took that responsibility serious [sic] enough.” The trial court determined that the parties would continue to have joint legal custody of the children and granted [father] physical custody, with [mother] granted parenting time in the summer months and during holiday breaks. The mother appealed the trial court’s ruling.
The Michigan Court of Appeals upheld the trial court ruling noting that although the mother argued that the trial court erred by finding that the father proved by clear and convincing evidence that granting him physical custody was in the children’s best interests. “We disagree.” The Michigan Court of Appeals further noting that the trial court’s determination regarding a child’s best interests is a question of fact that can only be set aside if it is against the great weight of the evidence.
The steps required to change child custody in Michigan are clearly defined. However, another key learning from the Roe case is the idea that the Court of Appeals does not like to upset a trial court’s custody determination because the trial court is typically in the best position to decide custody cases. Therefore, special consideration should be given to getting it right at the trial level.
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By: Daniel Findling