999 N.W.2d 43
Mich. Ct. App.2022Background
- Parties entered a consent judgment awarding joint legal and physical custody with alternating weekly parenting time; the judgment allowed mutual modifications but stated any permanent change must be in writing.
- In March 2020 father orally agreed (per his testimony) to let the child live primarily with mother during the COVID-19 pandemic; no written modification was executed.
- In July 2021 mother moved to change custody, alleging the child had lived primarily with her for ~17 months and that she was the child’s sole established custodial environment.
- A Friend of the Court referee recommended (and the trial court adopted) an interim order formalizing the status quo: primary residence with mother and reduced father’s parenting time to every other weekend plus Tuesdays. The court said it would schedule an evidentiary hearing.
- Father objected, arguing the court violated the consent judgment, failed to make established-custodial-environment findings, applied the wrong burden of proof (clear and convincing), and changed custody without an evidentiary hearing.
- The Court of Appeals vacated the interim order and reinstated the prior custody arrangement, concluding the trial court failed to determine whether an established custodial environment existed and that the intervening schedule change effectively amounted to a custody change requiring the Vodvarka clear-and-convincing standard; remand ordered for further proceedings.
Issues
| Issue | Plaintiff's Argument (Stoudemire) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Did the court violate the consent judgment by relying on an oral, temporary COVID-19 agreement to alter parenting time? | Consent judgment requires written permanent changes; oral, temporary assent should not be used to change custody. | The court may consider the actual living arrangement and parties’ agreement; status quo reflects reality. | Court: Consent judgment did not bar consideration of the living arrangement; clause cannot preclude court review of change of circumstances, but trial court still erred in its process. |
| Did the trial court satisfy Child Custody Act requirements for finding proper cause/change of circumstances and analyzing best interests? | Trial court procedurally and substantively erred and failed to apply CCA thresholds. | Mother established a change of circumstances because the child lived primarily with her for ~17 months. | Court: Trial court did not make necessary findings (established custodial environment) and relied on insufficient grounds; remand required. |
| Was an established custodial environment created and, if so, with whom? | Father: his temporary transfer to mother for COVID safety did not relinquish his established custodial environment (Theroux). | Mother: the child’s extended residence with her created her sole established custodial environment. | Court: As a matter of law the child retained an established custodial environment with both parents (temporary pandemic arrangement did not automatically relinquish father’s custodial environment); trial court failed to make explicit findings and remand is necessary. |
| Was the order a parenting-time adjustment or a custody change (affecting burden of proof and need for evidentiary hearing)? | Father: the reduction to ~104 overnights/year is a custody change requiring clear and convincing proof and an evidentiary hearing. | Mother: order merely memorialized the status quo and was a parenting-time adjustment justified by the change in residence. | Court: The change effectively relegated father to a “weekend parent,” i.e., a custody change; Vodvarka clear-and-convincing standard applies; reliance on duration alone was insufficient—order vacated and remanded. |
Key Cases Cited
- Theroux v. Doerr, 137 Mich. App. 147 (Mich. Ct. App. 1984) (temporary parental relinquishment to protect a child should not be punished)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (Mich. Ct. App. 2003) (clear-and-convincing standard applies when proposed change would alter an established custodial environment)
- Pierron v. Pierron, 486 Mich. 81 (Mich. 2010) (definition and importance of established custodial environment)
- Shade v. Wright, 291 Mich. App. 17 (Mich. Ct. App. 2010) (standard of proof for mere parenting-time adjustments is preponderance)
- Lieberman v. Orr, 319 Mich. App. 68 (Mich. Ct. App. 2017) (proper-cause/change-of-circumstances threshold discussion)
- Marik v. Marik, 325 Mich. App. 353 (Mich. Ct. App. 2018) (practical realities can establish custodial environment even contrary to orders)
- Powery v. Wells, 278 Mich. App. 526 (Mich. Ct. App. 2008) (reducing a previously equal-time parent to a weekend parent can constitute a custody change)
- Andrusz v. Andrusz, 320 Mich. App. 445 (Mich. Ct. App. 2017) (consent judgments are contracts and interpreted under contract principles)