A
trial court erroneously used a “preponderance of the evidence” standard to
determine it was in the child’s best interest to change the established
custodial arrangement, the Michigan Court of Appeals has ruled in a 2-1
decision that may create more confusion as to how to apply the burden in
custody cases.
In
Griffin v Griffin (published
opinion, Docket No. 338810), the Court of Appeals said the “key” in custody
modification cases is for the trial court to first find, by clear and
convincing evidence, that the proposed custodial arrangement is in the child’s
best interests.
The
Court added, however, that to do this properly, trial courts must determine
whether the proposed change is in the child’s best interests when compared to
the status quo – not when compared
with the parties’ suggested modifications, the Court of Appeals reasoned. The
Court’s analysis is unique among family law cases and, although attempting to
resolve a difficult question, may create more confusion among courts and
practitioners instead.
The
trial court wrongly applied a preponderance of the evidence standard when
weighing the statutory best interest factors, Judge Michael J. Kelly concluded,
joined by Judge Brock A. Swartzle. As a result, the trial court’s ruling was reversed.
Judge
William B. Murphy dissented from the majority opinion, saying any error by the
trial court was harmless and “reversal is unwarranted.”
Motions To Change Custody Arrangement
The
plaintiff and the defendant were divorced and had one son together. They shared
equal physical custody, using a two-week on/two-week off schedule.
The
defendant is an active duty member of the U.S. Coast Guard. In January 2016,
she received orders to report to a new station in Willowbrook, Illinois, almost
four hours from the plaintiff’s home in Holt, Michigan. The trial court entered
an order allowing the defendant to change her legal residence with the child
from Auburn Hills, Michigan, to Willowbrook, Illinois. The order indicated the
child’s legal residence with the plaintiff would remain in Holt and the
existing parenting-time schedule would continue.
In
January 2017, the plaintiff filed a motion to modify the custody arrangement.
He argued that, because the child would be 5 years old and starting kindergarten,
the child could not continue to split his time every two weeks, and that the
child’s need to start school was a material change in circumstances necessitating
a review of the custody arrangement. The plaintiff argued the best interest
factors in MCL 722.23 weighed in favor of granting him full legal and physical
custody, and awarding the defendant reasonable parenting time. The defendant
responded to the motion by also requesting a modification of the custodial
arrangement. She asserted the best interest factors weighed in favor of her
having full legal and physical custody of the child.
After
a Friend of the Court (FOC) investigation, the FOC recommended the child reside
with the plaintiff during the school year and the defendant be awarded
parenting time according to a holiday schedule, which included summer break. Both
parties objected to the FOC’s recommendation.
The
trial court held a hearing and awarded primary custody to the defendant during
the school year and primary custody to the plaintiff during the summer. The
plaintiff was also awarded custody during spring break, the week of
Thanksgiving and one-half of Christmas break. In making its decision, the trial
court applied a preponderance of the evidence standard, finding that the change
in custody was in the child’s best interests. The trial court denied the plaintiff’s
motion for reconsideration.
The
Court of Appeals reversed, finding the trial court applied the wrong
evidentiary standard in its analysis.
Erroneous Standard Applied
Judge
Kelly, writing for the Court of Appeals majority, explained that when a parent
moves for a change of custody, proper cause must first be established to
revisit the original custody arrangement. Once this threshold is met, he said, then the trial court
must determine whether the child has an established custodial environment.
“Where
no established custodial environment exists, the trial court may change custody
if it finds, by a preponderance of the evidence, that the change would be in
the child’s best interests,” the judge wrote.
However,
when an established custodial environment does exist, Judge Kelly said a trial court
is not to change the established custodial environment unless there is clear
and convincing evidence that it is in the child’s best interests.
In
this case, Judge Kelly explained, the trial court, on its own, determined that although
a change in custody would alter the established custodial environment, thereby requiring
a clear and convincing standard, it was only required to apply a preponderance
of the evidence standard. According to the judge, the trial court reasoned that
because the plaintiff and the defendant had “the same” burden of proof and a change
had to be made, it was proper to weigh the best interest factors under a
preponderance of the evidence standard.
Looking
at the facts, the trial court found that neither the plaintiff’s proposed
change nor the defendant’s proposed change was, by clear and convincing
evidence, superior to the other’s. However, the Court of Appeals noted for the
first time in this published case that MCL 722.27(1)(c) does not require that
one parent’s proposal be better than the other parent’s by a clear and convincing
standard. Thus, the trial court was not tasked with comparing the proposals to
each other and deciding which was better, Judge Kelly emphasized.
Instead,
Judge Kelly said the trial court was required to find that the change in
custody was in the child’s best interests when compared to the status quo. “[T]he child’s established
custodial environment is the status quo,
so in order to modify it the court must find by clear and convincing evidence
that the change is in the child’s best interests when compared to the status
quo, not when compared to every other conceivable or suggested modification,”
the Court of Appeals wrote. “In doing so, the court is free to adopt either party’s
proposal in whole or in part, but it is equally permissible for the court to
fashion an entirely new custody arrangement or to maintain the existing custody
arrangement. The key is that the court must first find by clear and convincing
evidence that the new custodial arrangement is in the child’s best interests.”
As
a result, Judge Kelly found the trial court erred by applying a preponderance
of the evidence standard when weighing the best interest factors in MCL 722.23
and, therefore, reversal was required.
Unfortunately,
this holding does not resolve the problem the Court of Appeals attempted to
resolve. It seems required that at some point each parent’s proposed custody
arrangement must be compared against the other. If not, what happens if both
proposals are clearly and convincingly better than the status quo? By
attempting to avoid the problem of neither proposal being clearly and
convincingly better than the other, the Court has unfortunately simply created
more questions and will likely cause more confusion in the trial courts.
Absences Due to Active Duty Status
The
Court of Appeals also construed a portion of MCL 722.27(1)(c) that provides, “If
a motion for change of custody is filed while a parent is active duty, the
court shall not consider a parent’s absence due to that active duty status in a
best interest of the child determination.” The Court’s analysis of this provision
in particular was unusual. Without any indication in MCL 722.27(1)(c) to
support it, the Court concluded that “a parent’s absence” means only “current”
absences, not potential future ones.
The
Court based its conclusion on a comparison to MCL 722.27(4), which mentions
“future deployments.” Thus, the Court held that the trial court could consider
potential future relocations due to active duty status in making its custody
decision.
‘Harmless Error’
In
his dissent, Judge Murphy explained that, if the trial court’s ultimate
decision did not result in a true change of the established custodial
environment, then applying the preponderance of the evidence standard would be “legally
sound.”
“Assuming
that there was a change in the established custodial environment and that the
clear-and-convincing standard was applicable, I fail to see the need to reverse
and remand the case, as any error would be harmless,” he wrote.
In
particular, Judge Murphy pointed out the trial court recognized that a change
in custody had to occur, and that the child’s best interests could only be
served by altering the existing custody arrangement.
“And
considering that the trial court found in favor of defendant on four of the
child custody best-interest factors, MCL 722.23, with the remaining factors
being even, except for one, the court would be forced again to rule in favor of
defendant, even on the clear-and-convincing standard,” the judge said.
“Reversal is unwarranted.”
Labels: active duty, change in custody, Child custody, custody evidentiary standards, divorce, MCL 722.23, military parent, parenting time, statutory best interest factors