Lead Opinion
Jason and Rebekah were divorced by consent judgment in March 2013. They have one child, and from the time of divorce until this matter arose, they shared equal physical custody using a two-week on/two-week off schedule. On January 20, 2016, Rebekah, who is an active duty member of the United States Coast Guard, received orders to report to a new duty station in Willowbrook, Illinois, approximately 3 hours and 52 minutes from Jason's home in Holt, Michigan. Following a hearing on March 31, 2016, the court entered an order allowing Rebekah to change her legal residence with the child from Auburn Hills, Michigan, to Willowbrook, Illinois. The order stated that the child's legal residence with Jason would remain in Holt and the parenting-time schedule would continue.
On January 19, 2017, Jason filed a motion to change custody, parenting time, and child support. He asserted that the parties' child would turn five years old in February 2017 and would start kindergarten in the fall of 2017. Jason argued that his son could not continue to split his time between his parents every two weeks while attending school and that his son's need to stаrt school was a material change in circumstances warranting review of the custody arrangement. Jason argued that the best-interest factors under MCL 722.23 weighed in favor of granting him full legal and physical custody of Jason and awarding Rebekah reasonable parenting time.
On February 16, 2017, Rebekah filed an answer to Jason's motion. She also filed her own motion to modify custody, parenting time, and child support. Rebekah
Both parties filed objections to the investigator's recommendation. Jason argued that it would not be in his son's best interests for him to be away from him for the entire summer and that his son should be with him every other weekend during summer break and two weeks prior to the start of school. Jason also asserted that he should be awarded alternating holidays and half of the winter break. Rebekah objected to her son attending a public school in Holt, arguing that the school ranks only in the 58th percentile among Michigan's public schools. She contended that the school the child attends in Illinois-Marquette Manor-was ranked "37th [out] of 119 for the 2017 Best Private High Schools in Illinois" and "15th out of 36 for 2017 Best Private K-12 Schools in Illinois" as well as "3rd out of 32 for 2017 Best Christian High Schools in Illinois." Rebekah argued that Marquette Manor's "A Beka" curriculum was superior to the Michigan public schools' common-core curriculum. Rebekah also argued that the parties had agreed before marrying that
Jason filed a written response to Rebekah's objections, challenging the validity of the school statistics and noting that the sources cited by Rebekah were publications the developers of the A Beka curriculum had published. He also challenged Rebekah's argument that he was attempting to alienate thе child from Rebekah and challenged the argument that there was no established custodial environment with him. Jason noted that Rebekah's decision to reenlist in the Coast Guard in 2016 was commendable, but he argued that it would create instability for their child if the child were in her care because she had to move to Illinois and would likely have to move again after 2020. Jason asserted that he intended to stay in Holt, which would provide a more stable environment for the child. Finally, Jason contended that Rebekah's accusations of domestic violence were baseless.
The court held a hearing on the parties' objections in May 2017, and both parties testified. At the conclusion of the hearing, the trial court noted that "it appears that wе have two very good parents who care deeply about their child." Thereafter, the court entered a written order and opinion awarding primary custody of the child to Rebekah during the school year and primary custody to Jason during the summer. Jason was also awarded spring break, the entire week of
Jason moved for reconsideration of the order, challenging the court's application of a preponderance-of-the-evidence standard and the court's decision not to consider Rebekah's anticipated relocation. The trial court denied his motion.
II. BURDEN OF PROOF
A. STANDARD OF REVIEW
Jason argues that the trial court applied the wrong burden of proof when it evaluated the best-interest factors under MCL 722.23. "The applicable burden of proof presents a question of law that is reviewed de novo on appeal." Pierron v. Pierron ,
B. ANALYSIS
When a parent moves for a change of custody, he or she must first establish that there is a change of
In this case, the trial court sua sponte decided that although a change in custody would alter the child's established custodial environment-thereby necessitating application of the clear-and-convincing-evidence standard-it was only required to apply a preponderance-of-the-evidence standard.
When interpreting a statute, we must ascertain the Legislature's intent. Kubicki v. Sharpe ,
The court based its decision to apply a lesser burden of proof on this Court's decisions in Heltzel v. Heltzel ,
Having concluded that the trial court applied the wrong standard, we nevertheless recognize that the court was faced with a somewhat unique problem: everyone agreed that maintaining the current custodial arrangement was not in the child's best interests. Both parties moved for a change in custody, advancing their own arguments in favor of receiving primary custody of their son during the school yeаr. Given the facts presented to
In sum, the trial court erred by applying a preponderance-of-the-evidence standard when weighing the best-interest factors in MCL 722.23.
III. ACTIVE DUTY STATUS
A. STANDARD OF REVIEW
Jason argues that the trial court erred as a matter of law when it excluded consideration
B. ANALYSIS
Relevant to this issue, MCL 722.27(1)(c) provides that "[i]f a motion for change of custody is filed while a parent is active duty, the court shall not consider a parent's absence due to that active duty status in a best interest of the child determination."
Moreover, under the language of the statute, a trial court is only prohibited from considering a parent's current-not future-absence from the child due to his or her active duty status. This is in contrast to MCL 722.27(4), which applies to parents who are deployed, rather than parents who are merely on active duty status. MCL 722.27(4) provides, in relevant part:
If a motion for change of custody is filed after a parent returns from deployment, the court shall not consider a parent's absence due to that deployment in making a best interest of the child determination. Future deployments shall not beconsidered in making a best interest of the child determination.
Unlike the provision in MCL 722.27(1)(c), which only addresses a parent's "absence due to [his or her] active duty status," MCL 722.27(4) addresses both a parent's "absence due to [his or her] deployment" and any future deployments. The omission of a provision in one part of a statute that is included in another part should be construed as intentional. Farrington v. Total Petroleum , Inc. ,
Here, there is no evidence on the record suggesting that Rebekah was currently absent from the child because of her active duty status with the Coast Guard. Instead, the record reflects that the child had an established custodial environment with her and that she cared for him on an alternating two-week on-two-week off schedule with the child's father. She testified that she currently lives in Willowbrook, Illinois, and works for the Coast Guard as a yeoman (an administrative assistant). She stated that she works Monday through Friday from 8:00 a.m. to 4:00 p.m. She testified that she lives alone in a two-bedroom condominium. Rebekah testified that the child looks to her for care and comfort and that she is able to meet his needs. She also explained that her son attends рreschool at Marquette Manor when she is working. Rebekah stated that in the past she has had to travel for work or training but that she never had to travel when her child was with her. She testified that her command would schedule her trips so that she would not have to be absent from the child. Rebekah further stated that she previously worked overnight shifts but that she is no longer required to do so. From the record, it is apparent that at the time of the hearing, Rebekah was not absent from her child due to her active duty status. She was fully present in her child's life. Therefore, because the statute only prohibits the court from considering current absences due to active duty status, we conclude that the trial court erred by interpreting and applying MCL 722.27(1)(c) so as to wholly preclude consideration
IV. CONCLUSION
In sum, we conclude that the trial court erred by applying a preponderance-of-the-evidence standard when weighing the best-interest factors in MCL 722.23. Therefore, we reverse the court's order awarding custody to Rebekah and remand for further proceedings. On remand, the trial court shall conduct a new best-interest hearing, during which it must consider all relevant, up-to-date information. Fletcher v. Fletcher ,
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Swartzle, J., concurred with M. J. Kelly, J.
Notes
For ease of reference, this Court will refer to the parties by their first names.
"[I]n order to establish a 'change of circumstances,' a movant 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." Vodvarka v. Grasmeyer ,
"[P]roper cause means one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Vodvarka ,
An established custodial environment exists "if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c). "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." MCL 722.27(1)(c).
The dissent suggests that, arguably, the trial court order did not change the child's established custodial environment. We agree that such an argument, based on the facts before the trial court and applicable caselaw, could potentially be made. However, the trial court did, in fact, find that the child's established custodial environment existed with both parents and that the change of the custody would alter it. The parties have not challenged that finding on appeal. And even if they had, our review of a trial court's decision that a change in custody would change a child's established custodial environment is not de novo. Such a decision is reviewed "under the great weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in the oppositе direction." Sinicropi v. Mazurek ,
Cf. Hunter v. Hunter ,
Although Rummelt held that a court need only apply a preponderance-of-the-evidence standard when faced with competing, "equal" presumptions under MCL 722.27(1)(c) and MCL 722.25, Rummelt ,
We do not agree with the dissent that the error was harmless simply because the court found, by a preponderance of the evidence, that four of the best-interest factors favored Rebekah and only one favored Jason. The dissent reasons that under such circumstances the trial court would be "forced again" to rule in Rebekah's favor. However, under a clear-and-convincing-evidence standard, it is possible that the trial court would find that factors favoring Rebekah under the preponderance-of-the-evidence standard now favor neither party and that the single factor favoring Jason satisfies the clear-and-convincing-evidence standard. Thus, arguably, the trial court would find that the best-interest factors favor placing the child with Jason during the school year, not with Rebekah. Alternatively, applying the correct standard, the court could find that four factors favor Rеbekah, but none favors Jason. It could also find that all of the factors are essentially equal, but that under MCL 722.23(l ), the undisputed need to make a change mandates a new custodial arrangement. Quite simply, applying the clear-and-convincing-evidence standard rather than the less demanding preponderance-of-the-evidence standard can dramatically alter the number of factors favoring either party. Therefore, reversal is both warranted and required under the facts of this case.
We note that if the court felt that inadequate evidence had been presented to establish by clear and convincing evidence that a change in the child's established custodial environment was in the child's best interests, it could hаve requested that the parties present additional evidence in support of their respective positions.
Jason also challenges several of the trial court's factual findings on the best-interest factors. However, on remand, the trial court must conduct a new best-interest hearing and apply the correct burden of proof. In doing so, the court must consider all relevant, up-to-date information. Fletcher v. Fletcher ,
Rebekah contends that we should also consider MCL 722.27(4), which provides, in part, that a parent's "[f]uture deployments shall not be considered in making a best interest of the child dеtermination." However, there is no indication in the record that Rebekah will be deployed in the future. The term deployment is defined as follows in MCL 722.22(e) :
(e) "Deployment" means the movement or mobilization of a servicemember to a location for a period of longer than 60 days and not longer than 540 days under temporary or permanent official orders as follows:
(i ) That are designated as unaccompanied.
(ii ) For which dependent travel is not authorized.
(iii ) That otherwise do not permit the movement of family members to that location.
(iv ) The servicemember is restricted from travel.
Here, there is nothing in the record that indicates Rebekah's future relocation will be to a place where the requirements in MCL 722.22(e)(i ) through (iv ) will be satisfied. Accordingly, under the present circumstances, she is accorded no protection by MCL 722.27(4).
We note that although a trial court is not рrohibited from considering the fact that a parent might be required to relocate (short of deployment) in the future due to his or her active duty status, the weight given to that consideration is still within the discretion of the court. We caution courts that although a relocation might occur in the future, the effects of that move on the child will often be speculative, which may compel a court to afford the future move less weight when determining the child's best interests.
Dissenting Opinion
Because I would affirm the trial court's ruling, I respectfully dissent. I begin my analysis by making some observations. In the
In Sinicropi v. Mazurek ,
There are three different standards of review applicable to child custody cases. The trial court's factual findings on matters such as the established custodial environment and the best-interests factors are reviewed under the great weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. In reviewing the findings, this Court defers to the trial court's determination of credibility. A trial court's discretionary rulings, such as the court's determination on the issue of custody, are reviewed for an abuse of discretion. Further, pursuant to MCL 722.28, questions of law in custody cases are reviewed for clear legal error. [Citations and quotation marks omitted.]
MCL 722.27 provides, in relevant part, as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others....
(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions....
(c) ... [M]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.... 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 appreciable 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.
In Pierron v. Pierron ,
To summarize, when considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the estаblished 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 establishedcustodial environment of the child, the burden is on the parent proposing the change to еstablish, by a preponderance of the evidence, that the change is in the child's best interests. In addition, under those circumstances, although the trial court must determine whether each of the best-interest factors applies, if a factor does not apply, the trial court need not address it any further. In other words, if a particular best-interest factor is irrelevant to the question at hand, i.e., whether the proposed change is in the best interests of the child, the trial court need not say anything other than that the factor is irrelevant.
An establishеd custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence. The existence of a temporary custody order does not preclude a finding that an established custodial environment exists with the noncustodian or that an established custodial environment does not exist with the custodian. A custodial environment can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order. An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort. [Citations omitted.]
MCL 722.27(1)(c) and the caselaw make clear that an established custodial environment is not determined
After indicating that there had existed a joint established custodial environment, the court noted that a party must typically establish by clear and convincing evidence that the best-interest factors favor a change in the established custodial environment. The trial court then stated that "where both parties have the same burden, and a change must be made , it is appropriate to weigh the factors using a preponderance of the evidence." (Emphasis added.) This suggested that the court did indeed conclude that granting either party's motion would change the established custodial environment.
If the trial court's ultimate decision did not result in a true change of the established custodial environment, the court's application of the preponderance-of-the-evidence
Next, on the evidentiary issue, MCL 722.27(1)(c) provides that "[i]f a motion for change of custody is filed while a parent is active duty, the court shall not consider a parent's absence due to that active duty status in a best interest of the child determination." The only temporal component of this provision relates
In sum, I would affirm the trial court's custody and evidentiary rulings. Accordingly, I respectfully dissent.
I note that there is no indication in the record that homeschooling was contemplated or possible, jointly or otherwise.
There is no dispute that there had existed a joint established custodial environment.
I do agree with the majority that when a change of the established custodial environment in fact occurs, the proper burden of proof requires clear and convincing evidence.
I cannot conclude that the trial court erred in its findings on the best-interest factors.