On February 22, 2022, the Michigan Court of Appeals issued its opinion in the case of Shamion v. Skalitsky. Mr. Skalitisky (“Father”) appeals the trial court’s order arguing that the trial court’s order altered the established custodial environment.
At the time of the divorce hearing. The parties’ minor child was five years old. When divorced, the Mother was awarded primary physical custody and the parties shared legal custody. However, over the course of years, the parties reached a mutual agreement regarding parenting time with no formal custody order. Generally, Father exercised parenting time two times per week.
When the minor child reached high school age, Father filed a motion to modify parenting time formally requesting three weekends per month and ½ of the summer. At hearing, the trial court awarded Father parenting time every other weekend and ½ of the summer. Father, unhappy with the trial court’s decision, appealed, arguing that the trial court’s order modified the established custodial environment, the Court of Appeals disagreed.
Simply put, the Father argued that the exercise of parenting time over the course of years created an established custodial environment even though there was no formal order.
Child custody in Michigan is governed by the Child Custody Act, MCL 722.21 et seq. When resolving important decisions that affect the welfare of the child, the court must first consider whether the proposed change would modify the established custodial environment. The established 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. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. A custodial environment can be established in more than on home.
A change in the established custodial environment occurs if parenting-time adjustments change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort.
In this case, Father raised the notion that a change that “substantially reduce[s] the time a parent spends with a child could “potentially cause a change in the established custodial environment.” A change in the established custodial environment occurs if the parents were “equally active in” the child’s life before the order, but one parent was “relegated to the role of a ‘weekend’ parent” after the order.
If the proposed change alters the established custodial environment, the party seeking the change must demonstrate by clear and convincing evidence that the change is in the child’s best interests. If an order does not change an established custodial environment, then the applicable standard of proof is a preponderance of the evidence.
In determining that there was an established custodial environment with Mother, the Court of Appeals noted that Father never had parenting time that came close to the amount exercised by Mother. Since there was not a significant reduction in the total amount of parenting time that Father exercised, the Court of Appeals denied Father’s appeal.
It is so important.
The importance of considering an established custodial environment cannot be understated because the different burden’s of proof can change the outcome of a custody case.
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