The trial court’s decision to award a father joint legal custody must be vacated because the ruling was “against the great weight of the evidence,” the Michigan Court of Appeals has decided.

The plaintiff-mother in Prozhoga v Jackson (Docket No. 361910) appealed the Genesee County Circuit Court’s order that:

• awarded her physical custody of the parties’ minor child;

• awarded the parties joint legal custody; and

• awarded the defendant-father parenting time.

“Although it is clear that the trial court invested substantial care and attention into this case, its decision to award defendant joint legal custody was against the great weight of the evidence and failed to consider the child’s custodial environment when awarding defendant parenting time,” the Court of Appeals said. “Therefore, we vacate the provisions of the order awarding defendant joint legal custody and parenting time and remand for further proceedings ….”

Judge James Robert Redford, Judge Kirsten Frank Kelly and Judge Michelle M. Rick were on the panel that issued the unpublished opinion.

Background

The plaintiff and the defendant had one child together. The plaintiff left the parties’ home in September 2018 after a domestic violence incident that reportedly occurred in the presence of the child. Afterward, the plaintiff let the defendant see the child in public places only (usually at the child’s sporting events).

In August 2019, the defendant filed a motion in the Genesee County trial court for custody and parenting time. He sought joint physical and legal custody, as well as equal parenting time. The trial court referred the issues of child support, custody and parenting time to a referee for an evidentiary hearing and entered an interim order giving the plaintiff sole physical and legal custody with parenting time “as the parties agree” until further order of the court.

After an evidentiary hearing and an interview with the child, the referee issued a report recommending the plaintiff have sole physical and legal custody. The referee recommended the defendant have supervised parenting time “until he undergoes a psychological evaluation and completes extensive anger management and parenting classes,” after which he “may file to expand his parenting time.”

The defendant objected to the referee’s recommendation and challenged many of the findings. Accordingly, the trial court held a four-day hearing. The trial court then issued a written opinion and a final custody order, finding the child had an established custodial environment with the plaintiff. The trial court also examined the best interest factors under MCL 722.23, which says: “As used in this act, ‘best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:

(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.

(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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

(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.”

The Genesee County trial court found the parties were equal on factors (a), (b), (c), (e), (f), (g), (h) and (j). However, the trial court:

• found that factor (d) favored the plaintiff because of the length of time the child had been residing primarily with her.

• based on interviews with the child, found that factor (i) favored the plaintiff.

• determined that factor (k) favored the plaintiff but that domestic violence was not a current issue.

• determined that factor (l) favored the defendant.

The trial court held that it was in the child’s best interests to award the parties joint legal custody and for the plaintiff to have primary physical custody. The trial court also awarded the defendant parenting time.

The plaintiff appealed.

Custody & Best Interest Factors

On appeal, the plaintiff argued the trial court’s best interest findings - particularly on factors (a), (b), (c), (e), (f), (g), (h), (j) and (l) - were against the great weight of the evidence.

Addressing this argument, the Court of Appeals explained that joint legal custody under MCL 722.26a means that “the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.” When joint custody is considered, “the trial court shall determine whether joint custody is in the best interests of the child by considering the best-interest factors in MCL 722.23 and ‘[w]hether the parents will be able to cooperate and generally agree concerning the important decisions affecting the welfare of the child.’”

When awarding joint legal custody, the trial court in this case found the parties were able to agree and communicate about the child’s needs. “The trial court recognized the longstanding conflicts between the parties but found that despite them, the parties were able to reach a consensus after the de novo hearing regarding allowing the child to attend a Muslim afterschool program despite defendant’s decision to no longer practice the faith,” the Court of Appeals wrote. “However, … this one instance of cooperation was insufficient to support a finding that the parties would be able to ‘cooperate and generally agree concerning the important decisions affecting the welfare of the child.’ The record shows that … the parties were not able to generally cooperate, and the evidence heavily preponderates against the trial court’s conclusion that the parties are capable of communicating and cooperating to make joint decisions regarding health care, religion, education, day-to-day decision-making, and discipline. …The trial court, therefore, abused its discretion by awarding the parties joint legal custody.”

Next, the Court of Appeals examined the best interest findings that were challenged on appeal.

Regarding factor (a), the testimony “clearly showed that the child had a greater emotional bond with plaintiff,” the Court of Appeals said. “The evidence also demonstrated that defendant would bully, tease, and physically intimidate the child, and the [guardian ad litem] testified she never saw any physical interaction between the two. The trial court’s finding that the parties were equal on factor (a) was clearly against the great weight of the evidence.”

Regarding factor (b), the Court of Appeals said the trial court’s determination that this factor weighed equally was “not against the great weight of the evidence.” The evidence showed the plaintiff “had primary involvement with the child’s education, religious training, and extracurricular activities, and that there was a reasonable likelihood that plaintiff would continue to guide, educate, and nurture the child in the future. … Moreover, plaintiff acknowledges that defendant participated in some extracurricular activities, took the child to some sporting events, and began participating in school activities.”

Regarding factor (c), the trial court indicated the parties were employed and capable of meeting the child’s needs. “However, at the time of the de novo hearing, defendant was $2,132 in arrears in child support and had only agreed to pay previous arrearages because he was going to be arrested,” the Court of Appeals said. “But this merely establishes that he had the capacity, not necessarily the disposition, to support the child.” Meanwhile, the plaintiff “paid for all … the child’s numerous extracurricular activities, except hockey, for which defendant paid one-half of the expenses. Plaintiff obtained health insurance for the child and took him to medical appointments. Plaintiff also obtained housing near the child’s school. The evidence clearly demonstrates that factor (c) weighed in favor of plaintiff. Accordingly, the trial court’s decision was against the great weight of the evidence.”

Regarding factor (e), the plaintiff alleged the trial court did not recognize that her custodial environment consisted only of her and the child, while the defendant had “formed a new family custodial environment ‘in circumstances that have no indicia of stability, in that [the defendant] has quickly moved the child to an environment with a new “family,” but without a marriage or other indicia of stability,’” the Court of Appeals said. “However, factor (e) does not address the stability of the home, but rather its permanence, … and at the time of the de novo hearing, defendant and his girlfriend had been in a relationship and living together for more than two years. Plaintiff confuses permanence with stability and has presented no evidence defendant’s home lacked permanence and has not demonstrated the trial court’s conclusion that factor (e) weighed equally was against the great weight of the evidence.”

Regarding factor (f), evidence the defendant “lied and was dishonest when dealing with third parties is not relevant where there was no evidence that it affected his parenting ability,” the Court of Appeals said. “[T]here was no evidence that defendant’s conduct impacted his parenting ability or that the child had any knowledge of it. Likewise, plaintiff has not presented any factual support for her contention that defendant attempts to ‘encourage’ the child to lie and actually bullies the child into lying. … In sum, plaintiff has not shown that the trial court’s findings were against the great weight of the evidence with respect to factor (f).”

Regarding factor (g), the plaintiff asserted the evidence showed the defendant has “mental health problems, as evidenced by the orders requiring [defendant] to attend extensive anger management and parenting classes and to obtain a psychological evaluation.” These orders, however, “standing alone, are not evidence of a mental health issue,” the Court of Appeals said. “Further, the record is replete with examples of both parties acting improperly, as noted by the court when it addressed the hostility between the parties. Thus, plaintiff has not shown that the trial court clearly erred by finding that factor (g) was equal.”

Regarding factor (h), the plaintiff claimed the trial court should have found this factor favored her because she was the parent who “consistently followed and promoted” the child’s day-to-day academics and enrichment. “While the evidence revealed that in the past plaintiff was the parent who was most heavily involved in the child’s education and extracurricular activities, the evidence showed that defendant was actively involved in the child’s sporting activities,” the Court of Appeals said. “And plaintiff acknowledges that defendant became more involved in the child’s education and in his school and extracurricular activities after initiating the custody dispute. The record is clear that the child is thriving academically in school and is very involved in sporting activities. The trial court’s finding that the parties were equal on this factor was not against the great weight of the evidence.”

Regarding factor (j), the trial court noted “[t]his factor is the key to this case,” the Court of Appeals said. The plaintiff “asserts that the evidence showed that defendant created the conflicts, but abundant evidence was presented to support the trial court’s finding that both parties were responsible for constant conflicts. Throughout the proceedings neither party demonstrated a willingness to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. The trial court’s finding that the parties were equal on this factor was, therefore, not against the great weight of the evidence.”

Regarding factor (l), the trial court found this factor favored the defendant and favored an award of joint legal custody. “The court found that the constant conflict between the parties should not benefit only plaintiff by an award of sole legal custody to one parent,” the Court of Appeals said. “Plaintiff asserts that it was speculative and erroneous for the court to find that plaintiff might attempt to file a change of domicile to Maryland if she were awarded sole legal custody.  We agree. …  There was no evidence, other than speculation, to support the trial court’s findings that plaintiff may someday want to relocate to Maryland. The trial court, therefore, clearly erred by finding that plaintiff’s hypothetical and speculative move to Maryland was relevant to factor (l).”

In addition, the trial court found that factor (l) favored the defendant because, after the de novo hearing, he consented to the plaintiff’s request that the child attend an afterschool Muslim program even though the defendant was no longer a practicing Muslim. “While this may be a consideration in whether to grant joint legal custody, the court’s reliance on this as ground for weighing factor (l) in favor of defendant was erroneous.”

Therefore, “we vacate the portion of the trial court’s order granting the parties joint legal custody and remand for further proceedings …,” the Court of Appeals held.

Parenting Time

The plaintiff also argued the trial court applied an incorrect burden of proof regarding parenting time.

“The trial court framed the issue as one in which plaintiff was requesting that defendant’s parenting time be suspended or supervised and that plaintiff must show that this change is in the best interest of the child by a preponderance of the evidence,” the Court of Appeals explained.

However, “this case involves an initial custody and parenting-time determination,” the Court of Appeals noted. “Therefore, MCL 722.27(1)(c) applies and provides that a trial court ‘may not … 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 trial court failed to consider whether the parenting-time order would modify the child’s existing custodial environment with plaintiff. If the order amounted to a change in the established custodial environment, the burden would be on defendant, not plaintiff, to show by clear and convincing evidence that the parenting-time order - and change in established custodial environment - would be in the best interests of the child.”

The trial court “did not make the relevant best-interest findings when makings its parenting-time determination,” the Court of Appeals said. “We therefore vacate that portion of the … order affecting parenting time and remand for further proceedings. On remand, the trial court will be required to ‘consider up-to-date information in making its parenting-time determination.’”

Accordingly, the trial court’s order awarding the defendant joint legal custody and parenting time “is vacated and the case is remanded for further proceedings …,” the Court of Appeals concluded. “Upon remand, the trial court shall reexamine the issue of legal custody, allowing the parties to update the record to account for any recent developments. The trial court shall further reconsider parenting time, if applicable per the court’s legal custody order.”