In the case of Shimel v. McKinley, (DocketNo. 329144), the Michigan Court of Appeals remanded the matter to the trial court because the order changing the child’s school district altered the joint-custodian’s parenting time from every other week to alternating weekends and resulted in a change in the child’s custodial environment which requires the moving party to prove by clear and convincing evidence that the change was in the child’s best interests.
Following
a more complete hearing, the trial court received additional evidence,
considered the statutory best-interest factors, and found by clear and
convincing evidence that primary custody with plaintiff was in the child’s best
interests. On the second appeal, the Michigan Court of Appeals affirmed the
lower court’s decision.
FACTS:
The parties shared
joint physical and legal custody of the child after their divorce until
late 2015, when they no longer
resided in the same city and agreed that the child should
attend a single school rather than
different schools pursuant to her alternating residence with the
two parties, but couldn’t agree on
which school. The trial court entered an order purporting to modify parenting
time and finding it was in the child’s best interests to “attend Onaway Public
Schools and have her principal residence with plaintiff during the school
year.”
Because,
according to the COA, the trial court’s order effectuated a change in the
child’s established custodial environment, thus the decision was reversed and
remanded for further hearings.
A Change in the Established Custodial Environment:
A
party seeking to change a child’s custody arrangement must first present the
court with a preponderance of evidence to show that there is a proper cause for
such change under MCL 722.27(1)(c). In other words, the party must prove that,
since the entry of the last custody order, the conditions surrounding custody
of the child, which have or could have a significant effect on the child’s
well-being, have materially changed. Again, not just any change will suffice,
for over time there are normal life changes. It must be shown that the material
changes have had or will almost certainly have an effect on the child.
In
this case, the original order was entered when the child was an infant. During
the early years the child resided alternatively with each party and was able to
attend two different preschools. The parties agreed that she should attend one
kindergarten school but couldn’t agree on the school and they lived too far
from each other for the child to alternatively live with each parent.
Because
of these facts, there was proper cause to revisit the original custody
arrangement within the definition as set forth in Vodvarka v Grasmeyer, 259 Mich App 499. The COA, after a review of the court’s
findings on the best interests factors as stated in MCL 722.23, held that the
trial court committed no error.
In affirming the lower court, the COA concluded that 1) the trial court’s best-interests findings were not against the great weight of the evidence, and 2) that the trial court did not abuse its discretion by finding that in total those findings constituted clear and convincing evidence that it was in the child’s best interests to award primary custody to plaintiff.
In affirming the lower court, the COA concluded that 1) the trial court’s best-interests findings were not against the great weight of the evidence, and 2) that the trial court did not abuse its discretion by finding that in total those findings constituted clear and convincing evidence that it was in the child’s best interests to award primary custody to plaintiff.
Labels: best interests of child, established custodial environment, Gaylord, joint custody, MCL 722.27(1)(c), Michigan, Onaway, Otsego, Presque Isle County, Rogers City, school, vodvarka v grasmeyer
