The trial court in this custody case did not err in denying the mother’s petition for primary physical and sole legal custody of the parties’ children, the Michigan Court of Appeals has ruled.

The parties in Van Assche v Tate (Docket No. 361568) were never married and have two children together. The parties lived together for a period of time, then separated. The plaintiff-mother wanted to relocate to Virginia and bring the children with her, so she filed a motion with the Wexford County Circuit Court for primary physical and sole legal custody of the children. The defendant-father, whose paternity was not in dispute, counterclaimed and requested joint legal and physical custody. He also filed a claim to establish parenting time and child support.

The Friend of Court referee recommended that the plaintiff be awarded primary physical custody. The trial court held a hearing, finding the older child had an established custodial environment (ECE) with both parties while they were living together. The trial court further found the ECE had been destroyed when the parties separated and that no ECE with either parent currently existed. As a result, the trial court denied the plaintiff’s motion to relocate to Virginia and awarded the parties joint legal and physical custody of the children.

The plaintiff appealed. She challenged the trial court’s 1) findings regarding the older child’s custodial environment and 2) assessment of the best-interest factors for both children under MCL 722.23.

The Court of Appeals affirmed, holding the trial court’s findings were not against the great weight of the evidence. Judges David H. Sawyer, Jane E. Markey and Brock A. Swartzle were on the panel that issued the unpublished opinion.

Appellate Analysis

At the outset of its opinion, the Court of Appeals noted the plaintiff had withdrawn her appeal of the domicile issue because a partial settlement was reached “providing that both parties and the minor children will all relocate to Virginia,” thereby rendering moot this portion of the appeal.

Next, the Court of Appeals turned to the ECE issue, noting that a trial court’s decision should be upheld unless the evidence “clearly preponderates in the opposite direction.” A custodial environment is established “if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort,” the appeals court said. “The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(1)(c).]”

Here, the trial court acknowledged the Friend of Court referee found the older child had an ECE exclusively with the plaintiff, the Court of Appeals explained. However, when the trial court considered the parties’ separation and the plaintiff’s relocation with the older child from the home, “the trial court found that the [ECE] had been destroyed for both parents,” the appeals court said. “The testimony was sufficient to demonstrate that the older child did not have a custodial environment with either parent because the change in circumstance left the child in an apartment with the expectation that she would be moving out of state.”

The Court of Appeals continued by rejecting the plaintiff’s argument that the trial court improperly found there was an ECE with the defendant. “This argument is misplaced because it does not address that the trial court, in fact, found that there was not a custodial environment with defendant. … Because the trial court found that the older child did not have an [ECE] with either parent, plaintiff’s argument that the trial court erred by finding otherwise warrants no further consideration.”

The Court of Appeals then turned to the trial court’s analysis of the best-interest factors in MCL 722.23 - factors (d), (e) and (j) in particular. The plaintiff argued the trial court wrongly held that she did not demonstrate the best-interest factors supported her request for sole legal custody or primary physical custody. Specifically, she asserted the defendant should not have had an advantage concerning MCL 722.23(d) and the parties were not equal regarding MCL 722.23(e).

“In this case, after discussing the various factors, the trial court summarized its findings as follows,” the Court of Appeals observed. “[T]here is no advantage for either parent regarding Factors (a), (b), (e), (g), (h), (i), (k), or (l). Factor (c) and (f) slightly favored Plaintiff and Factor (b) [sic, (d)] slightly favors Defendant, while Factor (j) more significantly favors the Defendant.”

Factor (d) concerns the “length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity,” the Court of Appeals said. “After finding that the parties’ income and housing were similar, the trial court gave defendant the ‘slight advantage’ because he remained in the family home where the older child had lived.” However, the plaintiff argued the trial court placed “too much emphasis” on the defendant remaining in the family home because he testified that he was seeking new employment in several cities. “Plaintiff ignores, however, that defendant was arranging for housing in Virginia because plaintiff planned to move there,” the appeals court said. “Nevertheless, at the time of the hearing defendant remained in the family home, which was a source of stability for the older child. The trial court’s finding a slight advantage to Factor (d) to defendant is not against the great weight of the evidence.”

Factor (e) concerns the “permanence, as a family unit, of the existing or proposed custodial home or homes,” the Court of Appeals said. “Plaintiff argues that moving to Virginia would present a more permanent family unit because the children would be closer to her extended family. The trial court correctly concluded that any move would provide a new situation that did not promise greater permanence than defendant’s current housing. Thus, the trial court’s finding that Factor (e) did not favor either party was not against the great weight of the evidence.”

Meanwhile, the defendant claimed the plaintiff ignored that factor (j), which concerns “the moral fitness of the parties involved,” was “heavily in his favor,” the Court of Appeals said, noting the plaintiff argued that factor (j) did not “more than slightly” favor the defendant. “The trial court found that plaintiff either interfered, or did not cooperate, with defendant in creating scheduled parenting time. Further, plaintiff’s actions did not demonstrate a willingness to work with defendant in fostering a closer relationship with the children. Even though the trial court’s finding that defendant was not offered any overnight visits with the children was without evidentiary support, there was evidence to conclude that plaintiff had withheld defendant’s access to the children. For these reasons, it was not against the great weight of the evidence for the trial court to find that Factor (j) was in defendant’s favor.”

Speaker Law Critique

Speaker Law Firm Attorney Jennifer Alberts explained that the Van Assche decision “hinged almost entirely on best-interest factor (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.” According to Alberts, “nearly every other factor was equal, with factors (c) and (f) slightly favoring the plaintiff-mother, and factor (d) slightly favoring the defendant-father, who ultimately prevailed.”

In particular, Alberts noted the trial court’s entire analysis of factor (j) was as follows: “Um, here Court finds that Plaintiff has interfered, or at least not cooperated well with the Defendant in creating and providing a scheduled parenting time.  [MV] is very young, but 90 minutes of visitation in ten days is not sufficient.  All contact with [MV] has been supervised. Since the split, [KT] has no overnights with the Defendant. Plaintiff imposes her superior knowledge, her superior judgement over the Defendant causing unnecessary hurtles and poor communication. Plaintiff’s actions do not demonstrate a willingness to work with the Defendant to foster a closer relationship with the Defendant or to assuage her concerns regarding Defendant’s parenting skills. Defendant, while annoyingly persistent in attempting to contact [KT], ah, on a nightly basis to say, ‘Good night,’ to her ah, ah, has cooperated with the – has cooperated with and indulged Plaintiff’s demands in full to his own detriment.  The Defendant has more than a slight advantage in Factor (j).”

Alberts emphasized it was undisputed that the actual parenting time exercised with KT, the older child, after the parties’ separation was two weekends each month from Saturday morning to Monday morning, with one or two extra days mid-week but on an inconsistent schedule. “This is basically the reasonable rights of parenting-time schedule and is vastly different from not allowing a single overnight,” she said.

Alberts also pointed out that the younger child, MV, was only two weeks old at the time of the evidentiary hearing. “So, while 90 minutes of visitation is correct, it was over a very short timeframe for a young infant. The plaintiff’s purported restriction of the defendant’s time with KT was, thus, a very significant part of this factor.”

Although the Court of Appeals acknowledged the trial court’s “significant factual error,” Alberts noted the panel held the trial court’s overall finding on factor (j) was not against the great weight of the evidence. In particular, she pointed to this statement in the Court of Appeals opinion: “Even though the trial court’s finding that defendant was not offered any overnight visits with the children was without evidentiary support, there was evidence to conclude that plaintiff had withheld defendant’s access to the children. For these reasons, it was not against the great weight of the evidence for the trial court to find that Factor (j) was in defendant’s favor.”

“To me,” Alberts said, “the difference between zero overnights - something that generally only happens if there is some kind of safety concern or no relationship with the child - and reasonable rights of parenting time is vast enough that the trial court should decide if the factor still favors the father based on correct information. But the COA said, ‘No, it’s fine.’”