This child custody dispute requires us to construe a provision of the Child Custody Act intended to safeguard the custodial rights of a parent called to active military duty. Holly Kubicki, an active-duty member of the United States Army, contends that by placing her son in the temporary custody of his father, the circuit court deprived her of the statute’s protection. Because the father filed a change of custody motion before the mother was called to active duty, we find the relevant statutory language inapplicable. Nevertheless, we must vacate the custody order and remand for a new evidentiary hearing, as the court failed to consider the child’s wishes.
I. UNDERLYING FACTS AND PROCEEDINGS
DLS was born in 2002 to plaintiff, Holly Westmoreland (now Kubicki), and defendant, Dale Sharpe, Jr. The parties never married. Holly and Dale briefly lived together with the child.
In 2006, Dale moved for a change of custody. He asserted that Holly had established a coguardianship of the minor child with her sister and brother-in-law and that due to Holly’s living arrangement, the child “does not have his own bedroom or bed.” Holly retorted that she obtained the guardianship so that the child would have health insurance, maintaining that Dale, whose child support payments were substantially in arrears, had consented to it. She denied that her son lacked an appropriate place to sleep. The circuit court terminated
Dale again moved to modify DLS’s custody in November 2012.
Dale objected to the referee’s recommendation and the circuit court scheduled a hearing for January 11, 2013. Before the hearing was held, Holly filed a motion for a change of domicile. She asserted that after completing 12 weeks of basic training she would be deployed more than 100 miles away and that “it would be in the best interests of the child to remain primarily in her
It is unclear whether the circuit court conducted the hearing scheduled for January 2013.
At the outset of the June evidentiary hearing, the circuit court characterized the issue presented as involving Holly’s change of domicile. The court acknowledged awareness of the pertinent language of MCL 722.27(1)(c) concerning the active military duty of a parent. Regarding Dale’s motion to change custody, the circuit court stated:
One of the other things that we talked about is whether this is a motion for change of custody and whether the Court has to look at all the best interests factors in making a determination on this matter. We will be moving forward with mother’s Motion for Change of Domicile, and the Court will be looking at the factors that are involved with that, and then based on the facts the Court will have to make the determination of whether I have to apply the best interests factors to that.
Holly testified that she enlisted in the Army on January 2, 2013, completed basic training, and deployed to Fort Riley, Kansas, in May 2013. She described her job as a cook required her to work from 4:00 a.m. until 1:30 p.m. Holly secured a four-bedroom house on the base located in a community designated for families. She contemplated that Kubicki would care for the children during the morning, pack their lunches, and walk them to school. She would assume parenting responsibilities in the afternoon.
The focus of the hearing then turned to Kubicki’s 2011 arrest. Holly recounted that on the day of his arrest, she and Kubicki had a “big fight” about her
Holly told the police that she tried to leave the home with the children, but Kubicki forbade her from leaving with his son that was born from an earlier relationship. After she called 911, she and the children fled the scene. The police arrested Kubicki and seized two pistols and eight rifles from the home.
The prosecutor charged Kubicki with killing an animal, a four-year felony under MCL 750.50b, and use of a firearm in the commission of a felony in violation of MCL 750.227b. Kubicki pleaded guilty to the charge of killing an animal in exchange for dismissal of the felony-firearm charge. The court sentenced him to a two-year term of probation during which he was ordered to complete an anger-management program and a residential treatment program for posttraumatic stress disorder (PTSD) offered by the Veterans Administration (VA). Holly admitted that Kubicki had never entered the residential treatment program, insisting that he did not suffer from PTSD.
The circuit court engaged in the following dialogue with Kubicki:
The Court.... [D]o you have something from [the] VA Hospital or can you provide the Court with anything showing that you have completed your treatment for [PTSD] and you’re no longer considered to have that condition?
Kubicki: I’m sure I can get with Dr. Smith or something on that, your Honor.
The Court: You do understand that that’s the essence of this case, right?
Kubicki: Yes, your Honor.
The Court: You do understand that, right?
Kubicki: I do now, your Honor.
The Court: You understand that the reason we’re here is that [Dale] is worried about the safety of his son in your care and custody because of your [PTSD], you do understand that, right?
*534 Kubicki-. Yes, your Honor.
Dale testified that he works full-time as a diesel technician, is married, and has no other children. He shared his concern that Kubicki would act impulsively due to the PTSD and expressed dismay at the prospect of not being able to see his son regularly.
At the close of the evidentiary hearing, the circuit court first stated:
[TJhere is a statute that says the Court cannot change custody when one parent is in the active military. What the Court can do is order a temporary placement of the child with the other parent if I feel it’s appropriate based on clear and convincing evidence which is a fairly high standard of proof. So the Court has to be convinced based on that standard that it would be better that it’s in [DLS’s] best interests that he stay with his father if I were to make that ruling.
The court then observed that its most recent custody order had only temporarily changed custody, continuing:
And I want to state for the record that that order really should have said temporary — that there is a temporary placement with father, that the parenting time — that he’s the primary placement of the child for parenting time purposes, it’s not actually a change of custody.
I don’t know if I said that as clearly as I could have, but even though the order says temporary custody of the minor child is transferred to [Dale], it’s really that the parenting time was changed to allow the child to be at dad’s primarily while mom was at her basic training, because this Court doesn’t have the authority to enter a custody change under these circumstances.
The court opined that, “from the Court’s point of view, this case hinges on whether Mr. Kubicki has received sufficient treatment for the Court to be com
In a subsequent order the court reiterated:
Daniel Kubicki shall procure and provide to the parties and the court, through [Holly’s] counsel, a report by a medical professional or any other information on his diagnosis, treatment plan, and/or medical discharge regarding [PTSD] and Major Depressive Disorder. This must be done by 28 June 2013 or the Court will decide without this information.
In July 2013, the circuit court issued a written “Opinion and Order Modifying Parenting Time[.]” After summarizing the evidence produced during the hearing, the circuit court found that Kubicki had not “sought or obtained any additional treatment for his [PTSD]” since completing the required anger-management therapy. The court continued: “He did not provide the Court with a psychological evaluation nor did he ever attend an in-patient program for [h]is [PTSD].”
The circuit court prefaced its legal conclusions with the statement that: “Due to [Holly’s] active military duty this Court cannot consider a change of custody. .. . Therefore, [the] Court will treat [Dale’s] motion as a motion for Change of Parenting Time.” The court found that Kubicki’s proposed status as DLS’s primary caregiver, his “mental health diagnosis, his failure to complete treatment, and his conviction for willfully killing the family dog” yielded a change of circumstances sufficient to reevaluate custody. The court continued:
*536 To consider a change of parenting time i[n] this instance amounts to a request to change the child’s placement to [Dale’s] home. MCL [722.27(1)(c)] states:
. . . [when] a parent is in active military duty. .. the Court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.
The Court must determine if a temporary change of placement is in the child’s best interest. [Dale] must show this by clear and convincing evidence.
Since [Holly] has asked for a change in domicile to the state of Kansas, this Court finds that it is appropriate to apply the 12 best interest factors, since a change of placement to [Dale’s] home amounts to a change of the child’s established custody environment.
The court proceeded to the statutory best interests factors,
The court then turned to the D’Onofrio
II. ANALYSIS
A
Three different standards govern our review of a circuit court’s decision in a child-custody dispute. We review findings of fact to determine if they are against the great weight of the evidence, we review discretionary decisions for an abuse of discretion, and we review questions of law for clear error. Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994). A clear legal error occurs when the circuit court “incorrectly chooses, interprets, or applies the law . . . .” Id. at 881. De novo review applies to underlying issues of statutory interpretation. People v Smith-Anthony, 296 Mich App 413, 416; 821 NW2d 172 (2012).
B
Holly first challenges the circuit court’s interpretation of the “active military duty” provision of the Child Custody Act, MCL 722.27(1)(c). We agree with Holly that the circuit court misconstrued the statute. The circuit court’s flawed legal analysis does not yield a victory for Holly, however, as under the circumstances presented, the statute plainly permitted a custodial change.
We begin by examining the pertinent language of MCL 722.27(1)(c):
If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child’s*539 placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.
When interpreting a statute, we must discern and give effect to the Legislature’s intent. We accomplish this task by giving the words selected by the Legislature their plain and ordinary meanings, and by enforcing the statute as written. In re Petition of Attorney General for Investigative Subpoenas, 282 Mich App 585, 591; 766 NW2d 675 (2009).
The circuit court declared that “[d]ue to [Holly’s] active military duty this Court cannot consider a change of custody.” Contrary to this conclusion, the limitation on custodial changes stated in MCL 722.27(1)(c) applies only “[i]f a motion for change of custody is filed during the time a parent is in active military duty . . . .” (Emphasis added.) Dale brought his change of custody motion in November 2012, approximately two months before Holly enlisted in the Army. Because Dale sought to change the child’s custody prior to Holly’s enlistment, the statute did not foreclose a custodial change. Thus, the circuit court incorrectly concluded that Holly’s intervening deployment deprived it of authority to change DLS’s custody. Consequently, the circuit court need not have disguised its order by characterizing it as “modifying parenting time,” when in reality the order changed the child’s custody. Given the timing of Dale’s motion, the text of MCL 722.27(1)(c) erected no barrier to this result.
Despite inaccurately styling its order as merely affecting parenting time, the circuit court employed the analysis required for a custodial change. As prescribed in Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003), the court first considered
The next step in a court’s custody analysis requires a determination of the appropriate burden of proof. The child’s established custodial environment governs this decision. A court may not modify or amend a previous judgment or issue a new custody order that changes a child’s established custodial environment “unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c). A custodial environment “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.” Id. Whether an established custodial environment exists is a question of fact to which the great weight of the evidence standard applies. Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001). In evaluating this issue, the focus is on the care of the child during the period preceding the custody trial. Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d 190 (1995).
The circuit court failed to articulate any findings specifically identifying DLS’s established custodial en
After finding grounds for a custodial evaluation, the circuit court made findings and rendered conclusions regarding the 12 best-interest factors set forth in MCL 722.23. By proceeding in this fashion, the court analyzed the evidence in the manner applicable to custody challenges. We discuss the court’s best-interest analysis later in this opinion. For now, it suffices that we discern no statutory basis arising from Holly’s deployment to disturb the court’s finding that a temporary change in custody would serve DLS’s best interests.
C
Holly next contends that several of the circuit court’s best-interest findings contravened the great weight of the evidence. Except with regard to Factors (f) and (i), we find the court’s factual findings well supported by the evidence.
We begin by reviewing the context of the court’s best-interest analysis. After deciding that MCL 722.27(1)(c) precluded it from entertaining Dale’s mo
A motion for a change of domicile essentially requires a four-step approach. First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4)... support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child’s established custodial environment must the trial court determine whether the change in domicile would be in the child’s best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence.
The best-interest analysis called for in motions to change domicile is identical to that required for motions to change a child’s custody. In both circumstances, the touchstone is the child’s best interest. In reviewing Holly’s best-interest arguments, we remain mindful that “a trial court’s findings on each factor should be affirmed unless the evidence ‘ “clearly preponderates in the opposite direction.” ’ ” Fletcher, 447 Mich at 879, quoting Murchie v Standard, Oil Co, 355 Mich 550, 558; 94 NW2d 799 (1959), quoting Finch v W R Roach, Co, 299 Mich 703, 713; 1 NW2d 46 (1941).
Holly first insists that the circuit court erred by finding that Factor (d), concerning “[t]he length of time the child has lived in a stable, satisfactory environment,
Holly next contends that the circuit court’s findings concerning Factor (e), which addresses “[t]he permanence, as a family unit, of the existing or proposed custodial home or homes.” Factor (e) requires a court to “weigh all the facts” bearing on which parent likely can “best provide” the child “the benefits of a custodial home that is marked by permanence, as a family unit.” Ireland v Smith, 451 Mich 457, 466; 547 NW2d 686 (1996). The circuit court found that this factor favored both parties equally, stating that DLS “has lived most of his life with [Holly] and firs[t,] her extended family, and then with her husband and their [two] children. [Dale]’s family has also been a stable family unit.” Holly asserts that the court should have given greater weight to the fact that in Dale’s custody, DLS would no longer live with the other two children. We find no error. The stability of DLS’s living arrangement is at the core of Factors (d) and (e). While DLS would be separated from
Holly also criticizes the circuit court’s finding that Factor (f), which addresses the moral fitness of the parties, favored Dale. The court’s brief explanation for this finding provided: “The main concern to the Court in this factor is [Kubicki’s] mental health issues and his felony conviction arising out of a dispute with [Holly].” Holly correctly points out that this factor concerns the parties’ “moral fitness.” Further, it focuses on moral “fitness as a parent.” Fletcher, 447 Mich at 887. In Fletcher, the Supreme Court instructed that when evaluating this factor,
courts must look to the parent-child relationship and the effect that the conduct at issue will have on that relationship. Thus, the question under factor f is not “who is the morally superior adult”; the question concerns the parties’ relative fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct. [Id,.]
Kubicki’s conduct and mental health may be considered under other best interest factors. On remand, the court must confine itself to an evaluation of the moral fitness of Holly and Dale as parents.
We discern a second error that mandates remand for a new best-interest hearing. The circuit court legally and harmfully erred by failing to consider the child’s wishes when it made its best-interest determination. In regard to Factor (i), the court stated, “The parties did not want the Court to interview the child. Therefore, his preference has not been considered by the Court.” Regardless whether the parties wished for an interview, the court was affirmatively required to consider the
We vacate the circuit court’s opinion and order and remand for a new custody hearing. We do not retain jurisdiction.
For the sake of clarity and ease of reference, we refer to the parties by their first names.
Dale had also sought modification of the custody order in 2010, after DLS ran away from Holly’s home in the middle of the night. That request was denied.
Dale’s motion raised other custodial issues that are not pertinent to our resolution of this case.
Daniel Kubicki has custody of a child born from an earlier relationship. He and Holly also have a child together.
This Court has struggled to obtain the entire circuit court record in this case. The record initially produced was woefully incomplete. This Court’s subsequent record requests have yielded only portions of the missing record items. The circuit court’s disorganized and inefficient approach to its basic recordkeeping obligation has unnecessarily delayed and complicated our review. We remind the circuit court that the court rules require production of a complete record, “except for those things omitted by written stipulation of the parties.” MCR 7.210(G). No such stipulation was filed. In the future, the circuit court is advised to produce the entire record when requested to do so by this Court.
MCL 722.23 provides the statutory best interest factors “to he considered, evaluated, and determined by the court.” These factors are:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
*537 (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), aff'd 144 NJ Super 352 (1976). The D’Onofrio factors have been codified in MCL 722.31(4). Rittershaus v Rittershaus, 273 Mich App 462, 469-470; 730 NW2d 262 (2007).
The statutory requirement for a threshold finding of proper cause or a change of circumstances does not necessarily control a case involving modification of parenting time “absent a conclusion that a change in parenting time will result in a change in an established custodial environment.” Shade v Wright, 291 Mich App 17, 25-27; 805 NW2d 1 (2010). Here, the court failed to clearly elucidate a finding regarding the child’s established custodial environment.
The circuit court’s “temporary” custodial order may have precipitated a change in the child’s established custodial environment. The determination remains intrinsically factual. The existence of the order, standing alone, does not establish a custodial environment. See Baker v Baker, 411 Mich 567; 309 NW2d 532 (1981).