Bridget Lee Bofysil v. Sarah Lynne Bofysil
161674
| Mich. | Jul 9, 2021Background
- Divorce judgment awarded defendant (Sarah) primary physical custody and sole legal custody of the minor child; plaintiff (Bridget) received alternating-weekend parenting time.
- Trial court found an established custodial environment (ECE) with defendant but not with plaintiff, and stated custody award would stand even if ECE existed with both parents; it concluded custody was supported under both preponderance and clear-and-convincing standards.
- Trial court found parties could not agree on child matters, plaintiff refused joint parenting and communicated harshly, and noted defendant’s role as primary caregiver while plaintiff worked outside the home.
- The Court of Appeals affirmed in part but vacated the custody award and remanded, holding the evidence preponderated against the trial court’s ECE finding, that the trial court abused its discretion on physical custody, and that sole legal custody was an abuse of discretion.
- The Michigan Supreme Court denied leave to appeal. Justice Viviano dissented, arguing the Court of Appeals misapplied the standard of review, substituted its factfinding for the trial court, mischaracterized best-interest factor analysis, and exceeded its authority by imposing a requirement regarding alternative communication methods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Correct standard of review and ECE finding | Trial court's ECE finding with defendant was supported by record and should be upheld | COA: evidence preponderates against ECE; trial court erred | SC denied leave; COA vacated custody for further proceedings; Viviano dissent: COA applied wrong standard and did not show clear preponderance against trial court |
| Role of parent working outside home / time spent with child | Time spent and primary-caregiver role are relevant to best-interest factors and support defendant's award | Court of Appeals: trial court improperly discounted plaintiff because she worked outside the home | COA criticized trial court for weighing work/time; SC denied leave; dissent disagreed that such consideration was improper and noted no presumption of joint custody |
| Consideration of plaintiff's new relationship (infidelity) in best-interest factors | Trial court legitimately considered adverse effects of plaintiff's relationship on parenting (Factors d,e) | COA: extramarital relationship improperly considered under any factor | COA found error; SC denied leave; dissent: Fletcher permits consideration when marital misconduct has identifiable adverse effect on parenting |
| Award of sole legal custody and communication remedy on remand | Sole legal custody supported by parties' inability to cooperate; trial court need not be ordered to adopt specific alternative-communication measures | COA: sole legal custody was an abuse of discretion and remand must consider alternative communication methods | COA vacated sole legal custody and directed consideration of alternative communication; SC denied leave; dissent agreed sole legal custody was erroneous but rejected COA-imposed requirement about communication methods |
Key Cases Cited
- Pierron v. Pierron, 486 Mich 81 (2010) (describing deferential standard of review for trial-court custody findings)
- Maier v. Maier, 311 Mich App 218 (2015) (abuse-of-discretion standard and when custody findings are against great weight of evidence)
- Fletcher v. Fletcher, 447 Mich 871 (1994) (extramarital misconduct cannot automatically determine moral fitness but may be considered when it adversely affects parenting)
- Wellman v. Wellman, 203 Mich App 277 (1994) (no statutory presumption in favor of joint custody)
- Kessler v. Kessler, 295 Mich App 54 (2011) (Court of Appeals stating trial court must determine ECE before custody determinations)
- Helms v. Helms, 185 Mich App 680 (1990) (original custody action may not be subject to ECE requirement)
- Jack v. Jack, 239 Mich App 668 (2000) (finding ECE required when temporary custody order existed)
- Bowers v. Bowers, 190 Mich App 51 (1991) (same)