Custody award overturned on appeal

On June 29, 2023, the Michigan Court of Appeals overturned an an award of sole physical custody and instructed the trial court to conduct further proceedings in the case of Bitar v. Baroody. In this case, the trial court granted the mother sole physical custody with the father having parenting time every other weekend. However, the Wayne County trial Court Judge failed to explain whether the award would modify the established custodial environment and therefore failed to apply the appropriate burden of proof. Let me explain.



Two steps in every original child custody matter (three steps for modification). The first step asks if there is an established custodial environment and the second step examines the best interest of the minor child(ren).

Step 1 – The Established Custodial Environment

Determining if an established custodial environment exists is important because it determines the burden of proof required in examining the best interest of the minor child. Established custodial environment is defined by statute, specifically, MCL 722.27(1)(c):

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.

MCL 722.27(1)(c), emphasis added

If there is an established custodial environment with one parent or both parents, a court will not alter it absent a showing a clear and convincing evidence (the highest burden of proof in a custody case), otherwise a court can change custody upon a showing of a preponderance of the evidence (the lowest burden of proof in a custody case.

Step 2 – The Best Interest of the Child(ren)

There are 12 statutory best interest factors which are set forth in MCL 722.23. The best interest factors are:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

MCL 722.23

Why was the sole physical custody award overturned on appeal?

Simply put, the award of sole physical custody award was overturned (vacated) on appeal because the Wayne County Circuit Court trial judge failed to make a determination regarding the established custodial environment. As a result, the trial court failed to determine the appropriate burden of proof (clear and convincing evidence (the highest) or Preponderance of the evidence (the lowest).

As a result, the sole physical custody award was overturned and sent back to the trial court to determine the existence of an established custodial environment and to apply the appropriate burden of proof when analyzing the best interest of the child factors.

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