SABATINE v SABATINE
No. 165279
Michigan Supreme Court
June 11, 2024
Argued on application for leave to appeal November 9, 2023.
Chief Justice: Elizabeth T. Clement
Justiсes: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden
Reporter of Decisions: Kathryn L. Loomis
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Plaintiff, Andrew P. Sabatine, moved in the Leelanau Circuit Court, Family Division, to amend a temporary custody order that granted defendant, Colleen K. Sabatine, primary physical custody of the parties’ two children. The couple had lived together in Traverse City, but in September 2020, defendant left with the children and moved to Fenton. While in Fenton, and without plaintiff‘s knowledge, defendant switched the children‘s primary-care doctors and school enrollments, although the children had not yet started school for the year. She later testified that she did not think to include plaintiff on any of the decision-making and just parented as a single mother. Shortly thereafter, thе parties commenced divorce proceedings. On January 7, 2021, the trial court entered the temporary custody order, which granted the parties joint legal custody, granted defendant primary physical custody, and granted plaintiff parenting time every other weekend and two nonconsecutive weeks during the summer. In accordance with that order, the children spent the majority of their time with defendant in Fenton. Plaintiff moved to have the children returned to the Traverse City area. Following an evidentiary hearing, the trial court issued an order awarding the parties joint legal custody, granting defendant primary physical custody, and awarding parenting time as follows: (1) during the school year, defendant would have the majority of parenting time, whereas plaintiff would have parenting time every other weekend plus the week during spring break, and plaintiff would also have the option of an additional weekend day per month to be exercised in Fenton; (2) during the summer when the children were out of school, plaintiff would have the majority of parenting time, while defendant would have parenting time every other weekend plus one week for vacation time. In reaching this result, the trial court determined that the children had established custodial environments with both parents, that the parenting-time order would not upset the established custodial environments, and that the schedule was in the children‘s best interests by a preponderance of the evidence. In March 2022, the trial court entered a judgment of divorce that incorporated this custody and parenting-time order. Both parties appealed, and the Court of Appeals consolidated the appeals. In plaintiff‘s appeal (Docket No. 361068), the Court of Appeals, SHAPIRO, P.J., and BORRELLO and YATES, JJ., in an unpublished per curiam oрinion issued on December 15, 2022 (Docket Nos. 361068 and 361074), affirmed the trial court‘s analysis of the best-interest factors, reversed the trial court‘s holding that the custody order would not change the children‘s established custodial environments, and remanded the case to the trial court to “reassess its decision using the proper standard.” Defendant
In a unanimous opinion by Justice VIVIANO, the Supreme Court, in lieu of granting leave to appeal, held:
The question whether a parenting-time provision modifies a child‘s established custodial environment is to be answered on the basis of the circumstances that exist at the time the trial court renders its custody decision, and аppellate courts have a statutory obligation under
1.
2. In this case, the Court of Appeals held that the children had established custodial environments with both parents because before defendant departed with the children, the parties and children all lived together as a family and both parents cared for the children. But the Court of Appeals improperly held that the focus of the established-custodial-environment determination was the child-rearing situation for the children before defendant‘s departure. Instead, in cases in which the preseparation custodial environment no lоnger exists, the relevant point in time for purposes of determining whether an established custodial environment exists is at the time the trial court makes its custody determination. The preseparation circumstances are only relevant to the extent that they continue to exist or are probative of whether a new established custodial environment exists at the time the trial court is rendering its decision. For instance, in determining whether a custodial environment has been established over an appreciable time, the trial court will often need to compare and contrast the lives of the children before separation and afterward. But the dispositive inquiry is not whether an established custodial environment existed prior to separation; rather, it is whether such an environment continues to exist, or a new one exists, at the time the trial court‘s custody determination. The trial court in this case properly made its ultimate determination on the basis of the circumstances that existed at the time of its decision, although the circumstances of the family prior to the separation were relevant to that determination.
3. When considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment of that child. In making this determination, it is the child‘s standpoint, rather than
4. The Court of Appeals’ analysis regarding whether the parenting-time modification altered the children‘s established custodial environments was flawed in two respects. First, the Court of Appeals failed to afford proper deference to the trial court‘s decision. The Court of Appeals quoted the proper standard, but it never explained how the facts clearly preponderated against the trial court‘s factual findings or how the findings were against the great weight of the evidence. Seсond, the facts did not clearly preponderate in the direction of finding that the parenting-time provision in the judgment of divorce amounted to a change in the children‘s established custodial environments. The Court of Appeals’ analysis was incorrect because it measured the change from the period prior to the separation—i.e., when the children were with both parents for 365 days a year—to what the custody order required. In doing so, the Court of Appeals ignored what happened between the separation and the judgment of divorce: the trial court had entered a temporary order that addressed parenting time, giving plaintiff approximately 69 overnights per year, and the children had new established custodial environments with both parents during this time. Thus, contrary to the Court of Appeals’ assertion, the judgment of divorce did not give plaintiff significantly fewer overnights or substantially change the nature of his interaction with the children. Despite the imbalance in time spent with each parent, at the time the judgment of divorce entered, the children had established custodial environments with both parents. Given the strong bonds the children had with both parents and the fact that established custodial environments existed with both parents despite the imbalance in time spent with each parent, any changes caused by the judgment of divorce to the established custodial environments that the children share with each parent would be minor. Accordingly, the trial court did not err when it concluded that the entry of the judgment of divorce would not modify the children‘s established custodial environments, and it was appropriate for the trial court to apply the preponderance-of-the-evidence standard.
Part I(C) of the Court of Appeals’ judgment reversed; case remanded to the trial court for further proceedings.
Justice ZAHRA, concurring, wrote separately to express his concern with the trial court‘s initial determination that the established custodial environment of the children did not change since before separation when defendant unilaterally removed the children from Traverse City, the only home they ever knew, and relocated them to Fenton. The court appeared to ignore the emotional and physical disruption the children experienced as a result of defendant‘s unilateral actions. Trial courts must strictly adhere to a review of all statutory factors in
VIVIANO, J.
At issue in this case is whether the parenting-time provision incorporated into the judgment of divorce modified any established custodial environment or environments the parties’ children had with their parents. We conclude that the Court of Appeals erred by reversing the trial court because the facts do not clearly preponderate against the trial court‘s findings that the parenting-time provision in the judgment of divorce would not modify the children‘s established custodial environments with both parents. Two points
I. FACTS AND PROCEDURAL HISTORY
Plaintiff-father and defendant-mother married in 2013 and had two daughters: AVS in 2015 and VLS in 2018. The couple lived together in Traverse City, but in September 2020, defendant left with the children and moved to Fenton.1 While in Fenton, and without plaintiff‘s knowledge, defendant switched the children‘s primary-care doctors and school enrollments, although the children had not yet started school for the year. She later testified that she did not think to include plaintiff on any of the decision-making and just parented
Plaintiff filed motions regarding parenting time, seeking to have the children returned to the Traverse City area. After an evidentiary hearing, the trial court issued an order on November 16, 2021, awarding the parties joint legal custody, granting defendant primary physical custody, and awarding parenting time as follows: (1) during the school year, defendant would have the majority of parenting time, whereas plaintiff would have parenting time every other weekend plus the week during spring break, and plaintiff would also have the option of an additional weekend day per month to be exercised in Fenton; (2) during the summer when the children are out of school, plaintiff would have the majority of parenting time, while defendant would have parenting time every other weekend plus one week for vacation time. In reaching this result, the trial court determined that the children had established custodial environments with both parents, that the parenting-time order would not upset the established custodial environments, and that the schedule was in the children‘s best interests by a preponderance of the evidence. In March 2022, the trial
Both parties appealed, and the Court of Appeals consolidated the appeals. In plaintiff‘s appeal (Docket No. 361068), the Court of Appeals affirmed the trial court‘s analysis of the best-interest factors, reversed the trial court‘s holding that the custody order would not change the children‘s established custodial environments, and remanded the case to the trial court to “reassess its decision using the proper standard.” Sabatine v Sabatine, unpublished per curiam opinion of the Court of Appeals, issued December 15, 2022 (Docket No. 361068), p 9.3
Defendant sought leave to appeal in this Court. We ordered oral argument on the application, directing the parties to brief whether:
(1) the Leelanau Circuit Court and the Court of Appeals correctly determined that the children have an established custodial environment with each parent, see Baker v Baker, 411 Mich 567 (1981); Rains v Rains, 301 Mich App 313 (2013); (2) the parenting-time terms incorporated into the judgment of divorce altered a potential established custodial environment, see Pierron v Pierron, 486 Mich 81 (2010); (3) the Court of Appeals remand instructions are sufficiently clear to guide the circuit court on remand as to what evidentiary burden it must apply, see Griffin v Griffin, 323 Mich App 110, 128 (2018); but see Butters v Butters, 510 Mich 1096 (2022) (Docket No. 164888); and (4) in an initial judgment of divorce, a court should consider the circumstances of the parties at the time of separation or prior to their separation to determine the child‘s established custodial environment, see Bofysil v Bofysil, 332 Mich App 232, 246 (2020). [Sabatine v Sabatine, 511 Mich 989, 989 (2023).]
Under
These three deferential standards of review “are part of the Legislature‘s comprehensive effort to promote the best interests and welfare of children.” Fletcher, 447 Mich at 877. By incorporating them into the act, “the Legislature apparently recognized that in custody cases the proceedings themselves may jeopardize a child‘s welfare.” Id. Therefore,
III. ANALYSIS
A. LEGAL BACKGROUND
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an apрreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
The Legislature adopted
upon a custodial relationship of a significant duration in which [the child is] provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence. [Id. at 579-580.]
Finally, we have summarized the approach a trial court must follow when making a decision that could modify an established custodial environment:
When considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment of that child. In making this determination, it is the child‘s standpoint, rather than that of the parents, that is controlling. If the proposed change would modify the established custodial environment of the child, then the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child‘s best interests. Under such circumstances, the trial court must consider all the best-interest factors because a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case. On the other hand, if the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child‘s best interests. [Pierron, 486 Mich at 92-93.]
B. THE PROPER TEMPORAL FOCUS WHEN DETERMINING IF A JUDGMENT OR ORDER WILL MODIFY A CHILD‘S ESTABLISHED CUSTODIAL ENVIRONMENT
The Court of Appeals believed the children had established custodial environments with both parents because prior to defendant‘s departure, the parties and children all lived together as a family and both parents cared for the children. But in reaching this conclusion, the Court of Appeals held that the proper focus of its inquiry was “the child-rearing situation for the girls before defendant‘s departure.” Sabatine, unpub op at 6, citing Bofysil v Bofysil, 332 Mich App 232, 244 (2020). We disagree with the Court of Appeals’ emphasis on the preseparation child-rearing situation on the facts of this case. Instead, in cases like this one, where the preseparation custodial environment no
In Baker, we addressed a similar situation involving a unilateral move by one parent with the children to a remote location. The father argued that his son—the child whose custody was at issue—lived in аn established custodial environment in Alpena from his birth to the time of trial. Baker, 411 Mich at 580. The Court noted the many familial and community contacts the child had when living together in the family home and that “these contacts and associations contributed importantly to the custodial environment” in which the child lived. Id. But the Court observed that “[t]hat environment began to deteriorate, however, with the disruptive events of the summer of 1978, and it was ultimately destroyed by the breakup of the parents’ marriage and the dissolution of the family.” Id. As a result, the Court found that “those repeated custodial changes and geographical moves, with the necessarily attendant emotional implications, destroyed the previously established custodial environment in which the boy was living and precluded the establishment of a new one, at least until after the trial.” Id. at 581. The child‘s community contacts and familiar associations “were not, by their nature, sufficient to preserve [the previously existing custodial] environment once the family unit dissolved and the boy entered into a new custodial relationship with his father alone, in a radically altered lifestyle in a new home.” Id. at 581-582. Significantly, the Court concluded that “at the time of trial there had been no ‘appreciable time [during which] the child naturally look[ed]’ to his father
Thus, as Baker demonstrates, for purposes of
But the Court of Appeals in this case did not look to the family dynamics before separation for this purpose. The Court of Appeals found Bofysil, 332 Mich App at 236-243, to be “instructive” as to the circumstances that were relevant for determining the children‘s established custodial environment. Sabatine, unpub op at 6. In Bofysil, the Court of Appeals looked to the preseparation household dynamic but failed to consider whether it continued after the parties separated.4 In the present case, the Court of Appeals took this a step further and expressly held that “what is important here is the child-rearing situation for the girls before defendant‘s departure.” Sabatine, unpub op at 6. But the Court did not explain how a custodial environment that no longer existed was relеvant to determining whether an established custodial environment existed at the time the trial court
To summarize, the circumstances of the parties at the time of separation or prior to separation might be relevant to determining whether an established custodial environment exists at the time the judgment of divorce is issued. For instance, in determining whether a custodial environment has been established over an appreciable time period, the trial court will often need to compare and contrast the lives of the children before separation and afterward. But the dispositive inquiry is not whether an established custodial environment existed prior to separation; rather, it is whether such an environment сontinues to exist, or a new one exists, at the time the trial court‘s custody determination. The preseparation circumstances are only relevant to the extent that they continue to exist or are probative of whether a new established custodial environment exists at the time the trial court is rendering its decision—in this case, when it issued the custody order.
Here, the trial court found “that an established custodial environment existed and continues to exist with both parties.” The trial court properly made its ultimate determination on the basis of the circumstances that existed at the time of its decision, although the circumstances of the family prior to the separation were relevant—as they often will be—to that determination. Neither party disputes the trial court‘s finding on this point.
C. THE JUDGMENT OF DIVORCE DID NOT ALTER THE CHILDREN‘S ESTABLISHED CUSTODIAL ENVIRONMENTS
At issue in this case is whether a modification to parenting time altered the children‘s established custodial environments. Not all modifications to parenting time will
The Court of Appeals in this case relied on Lieberman v Orr, 319 Mich App 68 (2017), in which the defendant-mother had primary physical custody of the children, and the parties had stipulated to a parenting-time schedule that gave the plaintiff-father approximately 1/3 of the overnights per year, id. at 72. The plaintiff sought to change the parenting-time schedule to essentially swap the amount of overnights, and the Court of Appeals concluded that this would have been a significant modification that would have changed the children‘s established custodial environment. Id. at 89-92. Although Lieberman addressed the issue whether proper cause or a change in circumstances existed,
Applying Lieberman, the Court of Appeals in this case explained that both parents had the children for 365 overnights рer year before the parents’ separation, and the custody order the trial court entered gave “plaintiff significantly fewer overnights” and “substantially chang[ed] the nature of his interaction with the children,” making him “a weekend parent.” Sabatine, unpub op at 8, 9. As a result, the Court of Appeals held that the trial court erred by concluding that the parenting-time schedule did not disrupt the established custodial environments and by applying the preponderance-of-the-evidence standard to the best-interest determination.
The Court of Appeals’ analysis is flawed in two respects. First, the Court of Appeals failed to afford proper deference to the trial court‘s decision. The Court of Appeals quoted the proper standard, but it never explained how the facts “clearly preponderate[d]” against the trial court‘s factual findings or how the findings were “against the great weight of evidencе.” Pierron, 486 Mich at 85 (quotation marks and citations omitted);
The Court of Appeals ignored the trial court‘s particularized analysis of the specific facts relevant to this family and instead cursorily applied the mathematical principles from Lieberman. In doing so, it treated the established-custodial-environment question as if it were a simple math equation that could be answered by looking at the number of overnights the children spend with each parent. But determining whether an established custodial environment will be modified by a court order or judgment is not that simple. Although the “physical environment” of the children is to be considered in determining a child‘s established custodial environment, it is not the only factor, and it is not alone dispositive. See
Of course, this is not to say that the physical environment and number of overnights a child spends with a parent is not important to the determination of whether an established custodial environment exists. For an established custodial environment to exist, the custodial relationship must endure for “an appreciable time,” and “the inclination of the сustodian and the child as to the permanency of the relationship shall also be considered.”
Second, the facts do not clearly preponderate in the direction of finding that the parenting-time provision in the judgment of divorce amounted to a change in the children‘s established custodial environments. The Court of Appeals’ analysis is incorrect because it measured the change from the period prior to the separation (i.e., when the children were with both parents for 365 days a year) to what the custody order required. In doing so, the Court of Appeals ignored what happened between the separation and the judgment of divorce: the trial court had entered a temporary order that addressed parenting time, giving plaintiff approximately 69 overnights per year, and the children had new established custodial environments with both parents during this time. Thus, contrary to the Court of Appeals’ assertion, the judgment of divorce did not “giv[e] plaintiff significantly fewer overnights” or “substantially chang[e] the nature of his interaction with the children.” Sabatine, unpub op at 8. Rather, the judgment of divorce increased plaintiff‘s overnights, and more importantly, it maintained the nature of his interaction with the children as it existed at the time the trial court made its decision on parenting time when issuing the judgment of divorce.
Despite the imbalance in time spent with each parent, at the time the judgment of divorce entered, the children had established custodial environments with both parents. The children were relatively young at the time of the separation; AVS was just under five years old, and VLS was four months shy of her third birthday. More than a year had passed
IV. CONCLUSION
The Court of Appeals erred to the extent that it reversed the trial court. First, we clarify that the question whether a parenting-time provision modifies a child‘s established custodial environment for purposes of
David F. Viviano
Elizabeth T. Clement
Brian K. Zahra
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
I concur in the Court‘s decision to reverse Part I(C) of the Court of Appeals judgment and thereby reinstate the trial court‘s custody order. However, I am troubled by the trial court‘s initial determination that the established custodial environment (ECE) of the children did not change when defendant unilaterally removed the children from Traverse City, the only home they ever knew, and relocated them to Fenton, a finding that was inconsistent with that made by the Friend of the Court referee.1 At every stage of divorce proceedings, trial courts must determine the ECE in accordance with the plain language of
Trial courts faced with similar facts must focus on every statutory factor identified in
Notwithstanding concerns with this aspect of the trial court proceedings, vacation of the trial court‘s order and remand for further proceedings is not warrantеd at this time. As this Court has recently instructed, a trial court should reconsider the children‘s ECEs as they exist at the time of remand while considering up-to-date information.4 The judgment of divorce in this case entered more than two years ago, and the children moved to Fenton almost four years ago. Reevaluation at this point would be superfluous given the lengthy time these youthful children have established their lives in Fenton.
Therefore, I concur in the Court‘s decision to reverse the Court of Appeals judgment in part and thereby to reinstate the trial court‘s custody order.
Brian K. Zahra
Notes
The trial court emphаsized that temporary custody orders are necessary for care of the child while the parties prepare for a hearing on the merits of the custody dispute. We recognize a potential for unfairness to the noncustodial parent if custody pursuant to such a temporary order may ripen into an established custodial environment. Nevertheless, the Legislature has decided that the best interests of the child prevail over procedural fairness to the parents and that the best interests of the child generally require continuance of an established custodial environment. We note, however, that contested custody cases have been given precedence over all other civil cases.
MCL 722.26 ; MSA 25.312(6), GCR 1963, 501.5. Trial courts and parties should endeavor to avoid having custody pursuant to a temporary order ripen into an established custodial environmеnt by expediting the progress of contested custody cases to trial.