Trial Court Misapplied Burden Of Proof, Custody Change Order Reversed

Cases involving a child who relocates with a parent from Michigan to another state often require an emergency appeal. In Palmer v Anaya (Docket No. 345368), a Michigan trial court granted the defendant-mother’s motion to change custody after the plaintiff-father had been permitted to relocate with the child to North Dakota.

An appeal by right existed in Palmer, so the Speaker Law Firm filed a motion for peremptory reversal on the plaintiff’s behalf, along with a motion for immediate consideration. The Speaker Law Firm filed the motion for immediate consideration on Sept. 10, 2018 and requested a decision by Sept. 14, 2018. The Michigan Court of Appeals granted the motion for immediate consideration on Sept. 21, 2018 but denied the motion for peremptory reversal.

The Court of Appeals ultimately reversed the trial court’s change in custody order on the same grounds raised in the motion for peremptory reversal, finding the trial court did not apply the proper burden of proof.

Unfortunately, however, the Court of Appeals did not issue its opinion until March 26, 2019, which caused six more months of delay in the child’s life.

Palmer Background

In Palmer, the plaintiff and the defendant were never married and had one child together, AP. The plaintiff had acknowledged paternity by signing an affidavit of parentage.

After the parties’ case was transferred from the Gratiot County Circuit Court to the Wayne County Circuit Court, the defendant tried to regain custody of AP. The Gratiot County Circuit Court had previously granted the plaintiff sole legal and physical custody of AP; had granted the defendant reasonable supervised parenting time with no overnights; and had permitted the plaintiff to move with AP to North Dakota, where he had secured a higher-paying job.

On January 30, 2017, the defendant filed a motion to modify parenting time in the Wayne County Circuit Court, claiming it was difficult for her to have regular contact with AP because the child lived in North Dakota. On March 30, 2017, the trial court ordered that the defendant would have: 1) unsupervised overnight parenting time for three nights while the plaintiff and AP were planning to be in Mackinaw City, Michigan; 2) parenting time during AP’s spring break each year; and 3) parenting time during eight consecutive weeks each summer. The order also set forth how Christmas break would be divided each year and established a procedure for the defendant to schedule weekend parenting time if she traveled to North Dakota.

On January 11, 2018, the defendant filed a motion requesting joint legal custody and sole physical custody of AP. After a hearing, the trial court ruled there was an established custodial environment with both parties and that the defendant had “demonstrated by a preponderance of the evidence that a change of physical custody is in [AP’s] best interests.” In reaching this conclusion, the trial court explained its findings under the statutory best interests factors in MCL 722.23. The trial court ordered that the parties share joint legal custody of AP and that the defendant have sole physical custody. The trial court also entered an additional order providing that the plaintiff would have parenting time during the summer from two weeks after school ended until two weeks before school resumed. The order further instituted a parenting time schedule for holiday breaks.

The Speaker Law Firm filed an emergency appeal on the plaintiff’s behalf, maintaining the trial court had misapplied the burden of proof when making its decision.

Clear And Convincing Standard

The Court of Appeals began its analysis by noting MCL 722.28 clearly provides that “all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

Moreover, the Court of Appeals pointed out that MCL 722.28 distinguishes three types of findings and assigns standards of review to each. “Findings of fact, such as the trial court’s findings on the statutory best-interest factors, are reviewed under the ‘great weight of the evidence’ standard,” the Court of Appeals wrote. “Discretionary rulings, such as to whom custody is awarded, are reviewed for an abuse of discretion. An abuse of discretion exists when the trial court’s decision is ‘palpably and grossly violative of fact and logic ….’  Finally, ‘clear legal error’ occurs when a court incorrectly chooses, interprets, or applies the law.”

Further, “the applicable burden of proof in child custody matters presents a question of law that this Court reviews de novo on appeal,” the Court of Appeals stated, citing Griffin v Griffin, 323 Mich App 110 (2018).

The Court of Appeals then explained that when determining the best interests of the child, a trial court must consider the factors in MCL 722.23 while applying the proper burden of proof - and the proper burden of proof is based on whether an established custodial environment exists. Here, the trial court had ruled that an established custodial environment existed with both parties, the Court of Appeals said. And where an established custodial environment exists, the trial court is not to change it unless clear and convincing evidence shows the change is in the best interest of the child, the Court of Appeals stated.

This higher standard also applies when there is an established custodial environment with both parents, the Court of Appeals said, citing Foskett v Foskett, 247 Mich App 1 (2001). “To summarize, when a matter affects custody and the child has an established custodial environment with each parent, the movant seeking a change in custody must prove that the change is in the child’s best interests by clear and convincing evidence; in contrast, however, when the matter only involves a proposed change in parenting time that would not affect the established custodial environment, then the movant need only prove by a preponderance of the evidence that the change is in the child’s best interests.”

According to the Court of Appeals, the result of the trial court’s order in this case was that the parties would now share joint legal custody and the defendant would have sole physical custody. “With respect to parenting time, plaintiff and defendant essentially switched roles as well, with plaintiff assuming the role of summertime parent instead of defendant,” the Court of Appeals wrote. “The trial court concluded that the change in custody was warranted because defendant had proven by a preponderance of the evidence that the change was in AP’s best interests.”

However, the Court of Appeals said, the trial court could not change custody unless the defendant established by clear and convincing evidence - not a preponderance of the evidence - that the proposed change was in the child’s best interests.

In conclusion, the Court of Appeals ruled the trial court committed clear legal error by applying a preponderance of the evidence standard rather than a clear and convincing standard. Further, this error was not harmless and remand was required, the Court of Appeals said, because “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.”