On December 20, 2018, the Michigan Court of Appeals examined a motion for change of custody filed by the father in the case Argel vs. Argel.
At the divorce trial, the trial court determined that the child’s custodial environment was with mother and that the child’s best interests were served by awarding sole physical custody to mother with the father having parenting time.
After the divorce, Mother was involved in a shoplifting incident at the East Jackson Meijer in October 2017, in which the child was present. Father filed a motion for a change of custody on the basis of this incident. The trial court determined that father failed to meet his burden showing that the shoplifting incident justified changing the child’s established custodial environment was determined in the divorce to be with mother. This appeal followed.
Why is the established custodial environment so important?
The established custodial environment is important in Michigan custody cases because a court cannot issue a new child custody order, modify or amend a previous child custody judgment or order that would change the established custodial environment of a child unless there is clear and convincing evidence that it is in the best interest of the child.
Motion for Change of Custody law.
The trial court may “modify or amend a previous child custody orders for proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “A modification of such a judgment or order is only permissible when it is in the minor child’s best interests.” Shade v Wright, 291 Mich App 17, 20; 805 NW2d 1 (2010). See also MCL 722.27(1)(c) and MCL 722.23.
In his motion for a change of custody, the father’ argued that the mother’s shoplifting incident was highly relevant to her moral fitness (which is best interest of the child factor (f)). The trial court and the Court of Appeals disagreed. Noting that although the mother committed a crime of dishonesty, she paid her time and she was involved in therapy finding best Interest of the child factor (f) equal as to both parties.
The key learning in the Argal case is the “power” of an established custodial environment. A prior court determination of an established custodial environment raises the burden of proof from a preponderance of the evidence (a low threshold) to clear and convincing evidence (a high threshold). Since the father could not meet the high threshold, his motion to modify custody was denied.
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By: Daniel Findling