Bethany Vi Sherman v. Jay Edward Sherman Jr
331622
| Mich. Ct. App. | Oct 6, 2016Background
- Parties: Bethany V. Sherman (plaintiff) and Jay Edward Sherman, Jr. (defendant) divorced; two minor children born 2009 and 2010.
- After marital breakdown, the parties had alternated-week physical custody; plaintiff moved out March 2015 and filed for divorce.
- Defendant had alcohol-related incidents (DWI conviction, bond violation) and periods of heavy drinking and instability, but later stopped drinking, entered counseling, and participated in breathalyzer monitoring.
- Temporary sole custody to plaintiff occurred May–June 2015 while defendant faced potential incarceration; joint physical custody was later resumed.
- Trial court found an established custodial environment with both parents and applied the clear-and-convincing-evidence standard to consider any change in physical custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an established custodial environment existed only with plaintiff or with both parents | Sherman: established custodial environment existed only with her | Sherman Jr.: children had established custodial environment with both parents due to alternating-week care and parental involvement | Court: both parents had an established custodial environment (finding not against great weight of evidence) |
| Whether the trial court should have used preponderance instead of clear-and-convincing standard to evaluate change of physical custody | Sherman: court erred and should have applied preponderance standard | Sherman Jr.: clear-and-convincing standard was correct because joint custodial environment was established | Court: clear-and-convincing standard was proper; no grounds for reversal |
Key Cases Cited
- Pierron v. Pierron, 486 Mich. 81 (Michigan 2010) (appellate review standards and great-weight-of-the-evidence rule for custody findings)
- Hunter v. Hunter, 484 Mich. 247 (Michigan 2009) (standard for changing custody when established custodial environment exists)
- Hayes v. Hayes, 209 Mich. App. 385 (Mich. Ct. App. 1995) (definition and assessment of established custodial environment)
- Kessler v. Kessler, 295 Mich. App. 54 (Mich. Ct. App. 2011) (requirement to determine established custodial environment before custody orders)
- Powery v. Wells, 278 Mich. App. 526 (Mich. Ct. App. 2008) (joint established custodial environment cannot be disrupted absent clear and convincing evidence)