The trial court in this custody action erroneously discounted the role of the parent who worked outside the home and, as a result, improperly ruled that the child only had an established custodial environment with the stay-at-home parent, the Michigan Court of Appeals has decided.

The parties in Bofysil v Bofysil (Docket No. 351004) are a same-sex couple who have a child together. The couple had agreed the defendant would stay home with the child while the plaintiff continued her full-time job. When the parties divorced, the defendant was awarded sole legal and physical custody of the child and the plaintiff was given “reasonable rights parenting time.” In making this decision, the trial court weighed the best interest factors in the Child Custody Act (MCL 722.23) and determined the child’s established custodial environment was solely with the defendant, primarily because she was the stay-at-home caregiver.

The plaintiff appealed. On appeal, the Court of Appeals disagreed with the trial court’s analysis and vacated the custody order, remanding the case for further proceedings.

“[T]he trial court found that the young child had an established custodial environment only with defendant Sarah Bofysil, largely because Sarah ‘was the stay at home mom while the parties were together’ and the child ‘is with her the majority of the time,’” the Court of Appeals said. “It was error to discount the role of the child’s other parent, plaintiff Bridget Bofysil, simply because Bridget worked outside the home to support her family. This error influenced the applicable burden of proof and permeated the court’s assessment of the child’s best interests.”

The Court of Appeals also found that the trial court’s best interest analysis under MCL 722.23 was flawed and, as a result, the trial court abused its discretion by awarding legal and physical custody to the defendant.

Court of Appeals Judge Elizabeth L. Gleicher wrote the published opinion. Judges Mark J. Cavanagh and Jane M. Beckering joined the decision.

Facts

The plaintiff, Bridget Bofysil, and the defendant, Sarah Bofysil, married in 2014. Their child, AB, was born in January 2016. Before AB was born, the parties had agreed the defendant would stay at home for a period of time and the plaintiff would keep her full-time job with the Eastern Michigan University Police Department.

In June 2018, the plaintiff filed for divorce in Jackson County Circuit Court and the defendant relocated with AB to her parents’ home, which was more than 100 miles from the marital residence. The defendant then kept AB from the plaintiff for about a month, after which a parenting-time schedule was established by the Friend of the Court.

Both parties testified at trial that they jointly cared for AB and that the plaintiff chose her work shifts so that she could spend as much time as possible with AB. The defendant testified that she spent the most time with AB since the parties had separated and she was planning to remain unemployed indefinitely, so she could continue to care for AB.

After examining the best interest factors in MCL 722.23, the trial court determined that AB’s established custodial environment was solely with the defendant because AB had spent the most time with the child. The trial court ruled that six of the best interest factors favored the defendant and, therefore, the defendant should have full legal and physical custody. The trial court’s findings were largely based on its determination that the defendant had more love, affection and a stronger bond with AB, given that she spent more time with the child.

The plaintiff filed a motion for reconsideration, which the trial court denied.

The plaintiff appealed the decision. Attorney Liisa Speaker, of Speaker Law Firm, PLLC in Lansing, represented the plaintiff on appeal.

‘Less Than A Full Parent’

In its decision, the Court of Appeals said the trial court penalized the plaintiff for working outside the home “by treating her as less than a full parent.”

A recent Pew Research study reported that, in 2016, 18 percent of parents in the United States stayed home to raise their children, the Court of Appeals pointed out. “Twenty-seven percent of mothers elected stay-at-home parenting. … For one parent to stay home to raise the children, the other must go out into the world and generate an income to support the family. Does working outside the home compromise a parent’s ability to forge and maintain a strong, healthy relationship with her children? What if both parents work outside the home? Is the child essentially without a parent truly committed to parenting and all that the job entails?”

Here, the trial court found that AB had an established custodial environment only with the defendant, who was the stay-at-home parent. “The evidence preponderates against the circuit court’s established-custodial-environment finding,” the Court of Appeals wrote. “Both parties agreed that from AB’s January 2016 birth until Sarah left the home with AB in the middle of June 2018, both parents shared in the care of AB. Although Bridget worked outside of the home, she arranged her schedule to maximize her time home during AB’s waking hours. Even Sarah conceded th[at] Bridget was usually the one to make lunch for the family and that the whole family often would be present when Bridget took on side jobs training dogs.”

According to the Court of Appeals, “AB clearly had a home life in which both of her parents provided for her care and needs. Although AB may have looked to her parents to fulfill different needs and likely understood at some level their distinct household roles, both provided her with ‘security, stability, and permanence.’”

In fact, the trial court “apparently contemplated that its established-custodial-environment determination might not withstand appellate scrutiny,” the Court of Appeals said, pointing out the trial court said that “regardless of which standard applies, the Court finds that the evidence supporting the following custody determination is indeed clear and convincing.”

The trial court, however, “perpetuated its erroneous approach to the working parent throughout the judgment, faulting Bridget for her full-time employment outside the home by treating her as less than a full parent,” the Court of Appeals stated.

Best Interest Analysis

The Court of Appeals continued by examining the trial court’s best interest analysis under MCL 722.23.

“The fact that the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child,” the Court of Appeals observed.

While the trial court treated the plaintiff as a “less viable parent” because she chose to work outside the home, it declined to credit her for her ability and willingness to earn an income and provide health insurance for AB, the Court of Appeals explained. “The court treated the parties equally under [best interest] factor (c) after deeming child support and ‘the additional support [Sarah] receives from her family’ as ‘more than sufficient to meet [AB’s] material needs.’ We discern no rational reason to both punish and yet fail to credit a parent for financially supporting his or her family.”

According to the Court of Appeals, the trial court further erred throughout its analysis by focusing on the plaintiff’s new romantic relationship. “The parties presented evidence that since the separation, Bridget had moved on romantically while Sarah had not. In focusing on this factor, the court repeatedly emphasized that Bridget was not yet divorced and her new girlfriend was married, although separated. The court described this relationship as ‘illicit,’ expressed that it took ‘a very dim view of extra-marital relationships’ because they ‘show[] a lack of candor and fidelity,’ and implied that Sarah therefore had a superior moral character.”

Michigan courts have repeatedly ruled that infidelity cannot be used to measure a parent’s moral fitness under MCL 722.23(f), the Court of Appeals emphasized, unless the infidelity actually interferes with the parent’s ability to parent the child. “The [trial] court in this case did not consider Bridget’s relationship with a married woman before her divorce was finalized in analyzing factor (f). However, it made those exact same judgments in analyzing factors (d) and (e). This was improper under any factor.”

In addition, the trial court “treated the parties disparately,” the Court of Appeals said. “The evidence established that Sarah was married when she began her romantic relationship with Bridget. Surely that ‘illicit relationship’ equally ‘shows a lack of candor and fidelity’ on Sarah’s part.”

Given the trial court’s “improper reliance” on the plaintiff’s relationship with a married woman and its apparent bias against the plaintiff’s role as a working parent, “we cannot hold that the court acted within its discretion in awarding sole physical custody to Sarah with such limited parenting time to Bridget,” the Court of Appeals concluded. “Further proceedings with up-to-date information will be required to consider the custodial arrangement that best serves AB’s best interests.”