In the case of Shimel v. McKinley, (Docket No. 329144), the Michigan Court of Appeals remanded the matter to the trial court because the order changing the child’s school district altered the joint-custodian’s parenting time from every other week to alternating weekends and resulted in a change in the child’s custodial environment which requires the moving party to prove by clear and convincing evidence that the change was in the child’s best interests. 

Following a more complete hearing, the trial court received additional evidence, considered the statutory best-interest factors, and found by clear and convincing evidence that primary custody with plaintiff was in the child’s best interests. On the second appeal, the Michigan Court of Appeals affirmed the lower court’s decision.

FACTS: The parties shared joint physical and legal custody of the child after their divorce until ate 2015, when they no longer resided in the same city and agreed that the child should attend a single school rather than different schools pursuant to her alternating residence with the two parties, but couldn’t agree on which school. The trial court entered an order purporting to modify parenting time and finding it was in the child’s best interests to “attend Onaway Public Schools and have her principal residence with plaintiff during the school year.”

Because, according to the COA, the trial court’s order effectuated a change in the child’s established custodial environment, thus the decision was reversed and remanded for further hearings.

A Change in the Established Custodial Environment

A party seeking to change a child’s custody arrangement must first present the court with a preponderance of evidence to show that there is a proper cause for such change under MCL 722.27(1)(c). In other words, the party 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. Again, not just any change will suffice, for over time there are normal life changes. It must be shown that the material changes have had or will almost certainly have an effect on the child.

In this case, the original order was entered when the child was an infant. During the early years the child resided alternatively with each party and was able to attend two different preschools. The parties agreed that she should attend one kindergarten school but couldn’t agree on the school and they lived too far from each other for the child to alternatively live with each parent.

Because of these facts, there was proper cause to revisit the original custody arrangement within the definition as set forth in Vodvarka v Grasmeyer, 259 Mich App 499. The COA, after a review of the court’s findings on the best interests factors as stated in MCL 722.23, held that the trial court committed no error. 

In affirming the lower court, the COA concluded that 1) the trial court’s best-interests findings were not against the great weight of the evidence, and 2) that the trial court did not abuse its discretion by finding that in total those findings constituted clear and convincing evidence that it was in the child’s best interests to award primary custody to plaintiff.