The father in this case was erroneously granted joint physical and legal custody of the parties’ children, the Michigan Court of Appeals has ruled, because the trial court improperly conflated his motion to change custody with the mother’s motion to change domicile, effectively placing the burden of proof on the mother for both motions. 

In Brown v Brown (Docket No. 352767), the plaintiff-mother filed a motion to set aside the referee’s recommendation that the defendant-father be awarded joint physical and legal custody of the parties’ children. She challenged the trial court’s finding of an established custodial environment and argued that every best-interest factor in MCL 722.23 of the Child Custody Act actually favored her. The plaintiff, who was a flight attendant, also filed a motion to change the children’s domicile.

The trial court conducted a hearing and held there was an established custodial environment with both parents. Although the trial court differed from the referee regarding certain factual findings on the children’s best interests, it found that it was in the children’s best interests for both parents to share joint physical and legal custody. Accordingly, the trial court denied the plaintiff’s motion to change the children’s domicile.

The Court of Appeals reversed.

The trial court “effectively placed the burden of proof on mother for both motions,” the Court of Appeals said. “This was clear legal error. That mother was seeking a change of domicile for the children did not relieve father of his burden to prove by a preponderance of the evidence that granting him joint legal custody was in the children’s best interests. … [T]he trial court conflated the motions, and reasoned that unless mother could show by clear and convincing evidence that moving to Texas was in the children’s best interests then father was entitled to joint custody.”

On remand, the trial court must evaluate the father’s motion for change of custody “under a preponderance of the evidence standard with father having the burden of proof,” the Court of Appeals said. “The court shall then separately address mother’s motion to change domicile.”

Judges Mark J. Cavanagh, Kathleen Jansen and Douglas B. Shapiro were on the panel that issued the unpublished opinion.

Background

The plaintiff and the defendant were divorced in 2013. They had two children together. The divorce judgment granted the plaintiff sole physical and legal custody of the older child and ordered the child’s domicile remain in Michigan.

In 2015, the Calhoun County Circuit Court granted the plaintiff’s motion to change domicile, letting her move to Georgia so she could undergo training for a new job as a flight attendant. In 2016, the trial court consolidated a separate case involving the parties’ youngest child and reaffirmed that the plaintiff “shall have the care, custody and control” of both children. The order also granted the defendant parenting time.

In 2017, the defendant filed a motion to modify parenting time. Although he acknowledged that he did not contest the plaintiff’s relocation to Georgia, the defendant claimed it was in the children’s best interests to establish a parenting-time schedule. He also alleged the plaintiff had left the children primarily in the care of their maternal grandparents and she was living in Georgia without them. The trial court entered an order modifying parenting time and child support, and granting the defendant standard parenting time. However, the trial court ruled “[t]here is no change in custody” and “[l]egal and physical custody will remain with” the plaintiff.

In July 2018, the defendant filed a motion alleging the plaintiff had repeatedly violated the parenting-time order. The defendant also alleged that, without the trial court’s knowledge, the children were enrolled in school and living in Battle Creek, Michigan. Further, the defendant asserted the plaintiff was now working as a flight attendant and often left the children with their maternal grandparents for days or weeks at a time. As a result, the defendant requested additional parenting time while the plaintiff was traveling for work. The trial court held the plaintiff in contempt for denying the defendant parenting time. In December 2018, the trial court amended its order to reflect that the defendant would have additional parenting time during periods when the children were residing in Michigan.

In January 2019, the defendant filed a motion to change custody and requested joint legal and physical custody. He alleged the children had been residing in Battle Creek, primarily with their maternal grandparents, for six months and were enrolled in school there. He asserted it was in the children’s best interests that he have an equal right in making decisions concerning their upbringing, especially because the plaintiff continued to travel and was away “for days at a time.”

At an initial hearing regarding the defendant’s motion to change custody, at which the plaintiff was not present, the referee agreed to give the defendant a hearing on whether custody should change because the previous orders “were clearly premised based upon the assumption that these children are going to be spending a lot of time out of state,” which was not currently the case. In the meantime, the trial court held the plaintiff in contempt a second time for denying or otherwise interfering with the defendant’s parenting time.

After an evidentiary hearing, the referee found there was proper cause or change of circumstances for revisiting the existing custody arrangement. The referee offered the following reasons: 1) the children were enrolled in school in Michigan; 2) the plaintiff’s lack of candor concerning her living arrangements; 3) the orders of contempt against the plaintiff for denying parenting time; and 4) the plaintiff accepted a job as a flight attendant based in Dallas, Texas, with the intent to move there permanently. In July 2019, the referee submitted the recommendation, including written findings that proper cause or change of circumstances existed and the children had an established custodial environment with both parents. The referee recommended it was in the children’s best interests for the trial court to grant the defendant joint physical and legal custody.

In August 2019, the plaintiff moved to set aside the referee’s recommendation, challenging the established custodial environment finding and asserting that each best-interest factor favored her. She also filed a separate motion seeking to change the children’s domicile to Dallas, Texas. The trial court conducted a hearing and found there was an established custodial environment with both parents. While the trial court differed from the referee regarding several factual findings on the children’s best interests, it held that it was in the children’s best interests for both parents to share joint physical and legal custody. The trial court denied the plaintiff’s motion to change domicile.

The plaintiff appealed.

Clear Legal Error

On appeal, the plaintiff argued, among other things, the trial court erred by finding that an established custodial environment existed with both parents. The plaintiff asserted the children’s long-time residence with her was the most instructive consideration.

“Although mother is correct that the children’s physical residence was relevant, this was but one relevant factor, as the standard for determining a child’s established custodial environment requires an inquiry into not only where the child lives but whether ‘the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort,’” the Court of Appeals said. “Overall, mother seems to focus on her history with the children. While this historical context is helpful, it ignores that the trial court was tasked with evaluating the children’s current established custodial environment. … At the time of the hearing, father had received an increasing amount of parenting time over the preceding two years. Moreover, the children had been living in Battle Creek for an extended period of time while mother was often out-of-state. Mother testified that the children were excited to see father and that they had a bond with him. There was also evidence that the children looked to father for guidance and assistance while in his care. For these reasons, it was not against the great weight of the evidence for the trial court to conclude that the children had an established custodial environment with both parents.”

Meanwhile, the Court of Appeals said it agreed with the plaintiff that, at this point in the trial court’s analysis, it improperly conflated the defendant’s motion to change custody with the plaintiff’s motion to change domicile. “As noted, the evidentiary burden in a motion to modify a custody order turns on whether the change will alter an established custodial environment. The trial court’s analysis largely tracked the referee’s recommendation so we examine both in order to clearly understand the court’s ruling. In her recommendation, the referee concluded that father’s request for joint custody would not change the established custodial environment. Mother does not challenge that finding, and we see no error in it. … Accordingly, father had the burden to show by a preponderance of the evidence that his motion for joint custody was in the children’s best interests.”

The referee, however, did not address the defendant’s burden of proof, the Court of Appeals explained. Instead, the referee concluded the plaintiff had the burden to prove by clear and convincing evidence that changing the children’s domicile to Texas was in their best interests. “Finding that mother did not meet that burden, the referee recommended that father be granted joint legal and physical custody. At the de novo hearing, the trial court did not expressly state the applicable burden of proof for father’s motion for joint custody before it evaluated the best-interest factors. … The trial court then evaluated mother’s motion to change domicile. The court considered the factors set forth in MCL 722.31(4) and indicated that they supported a change in domicile, but found that moving the children to Texas would alter the established custodial environment and that mother had not shown by clear and convincing evidence that the change was in the children’s best interests.”

According to the Court of Appeals, the trial court erred by basically placing the burden of proof on the plaintiff for both motions. The defendant still had the burden to show, by a preponderance of the evidence, that awarding him joint legal custody was in the children’s best interests, the appellate court observed. “Like the referee, the trial court conflated the motions, and reasoned that unless mother could show by clear and convincing evidence that moving to Texas was in the children’s best interests then father was entitled to joint custody. But mother’s proposed move and father’s motion for joint custody were separate issues and should have been treated as such.”

Moreover, although there may have been duplicative efforts regarding the best-interest factors, “we cannot overlook the trial court granting a parent’s motion for joint custody by erroneously placing the evidentiary burden on the other parent,” the Court of Appeals said. “On remand, the trial court shall evaluate father’s motion for change of custody under a preponderance of the evidence standard with father having the burden of proof. The court shall then separately address mother’s motion to change domicile.”