The Clare County trial court properly awarded a divorced father sole physical custody of his three minor children, the Michigan Court of Appeals has ruled, because there were legitimate concerns regarding the children’s medical care and parenting-time exchanges.

In Tyler v. Johnson (Docket No. 356688), the plaintiff-mother was initially awarded primary physical custody of the parties’ minor children. The defendant-father later filed a motion seeking full physical custody of the children. The Clare County Circuit Court, finding there was proper cause to consider a change in custody, awarded joint legal counsel to both parties and sole physical custody to the defendant. The plaintiff appealed.

The Court of Appeals affirmed the trial court’s decision. The appeals court held:

• the trial court had proper cause to consider a change in the children’s established custodial environment, and

• the trial court’s findings regarding the best-interest factors in MCL 722.23 were not against the great weight of the evidence.

Judges Mark J. Cavanagh, Douglas B. Shapiro and Michael F. Gadola were on the Court of Appeals panel that issued the unpublished opinion.

Background

The plaintiff and the defendant are divorced and have three minor children, RJ, EJ and KJ. The trial court’s original custody orders granted the parties joint legal custody of the children and the plaintiff primary physical custody, with the defendant having overnight parenting time every weekend. The last custody order was entered in April 2019.

In October 2020, the defendant filed a motion seeking sole physical custody of the children. In the motion, the defendant expressed concern over the plaintiff’s ability to care for the children and alleged contentious parenting-time exchanges.

A Friend of the Court (FOC) hearing was held before a referee. The plaintiff and the defendant both testified at the hearing. The FOC referee recommended the parties be awarded joint legal and physical custody of the children. The plaintiff and the defendant objected to the referee’s recommended order.

The trial court held a de novo review hearing, where both parties again testified. The trial court awarded the parties joint legal custody and the defendant sole physical custody of the children. The plaintiff was given parenting time on alternating weekends.

The plaintiff appealed.

Custody Correctly Considered

On appeal, the plaintiff argued the trial court erroneously ruled there was proper cause to consider a change in custody.

The Court of Appeals disagreed. In its analysis, the appeals court looked to the Child Custody Act, MCL 722.21, et seq., for guidance.

“In concluding that there was proper cause to revisit the custody order, the trial court found that, ‘since the entry of the last order, there [were] legitimate concerns raised regarding the medical care of the minor children while in the parents’ care, as well as contentious parenting[-]time exchanges,’” the Court of Appeals explained. “Concerns regarding the children’s medical care and the contentious nature of parenting-time exchanges both relate to best-interest factors and so are proper grounds for the court to consider a change in custody. … [M]edical concerns relate to factor (c), MCL 722.23(c), and the contentious parenting-time exchanges relates to factor (j), MCL 722.23(j).”

The Court of Appeals reviewed the trial court’s finding that there were legitimate concerns regarding the children’s medical care and the parenting-time exchanges. “The parents’ testimony established that KJ had contracted ‘MRSA’ and had experienced three or four outbreaks within the prior year. Defendant described the outbreaks as ‘really bad,’ explaining that during outbreaks the infection site becomes filled with pus and must be drained. KJ’s MRSA required repeated medical attention and, in addition, special efforts to prevent outbreaks and the spread of the condition to others. Also, plaintiff and defendant both testified about a burn requiring medical attention that KJ sustained on her foot when she stepped on a hot curling iron plaintiff had left on the floor. According to defendant, plaintiff did not immediately seek medical attention for the burn despite its serious nature. Defendant further testified that plaintiff did not always address the children’s medical issues appropriately or follow-up regarding their medical issues. Testimony and evidence at the de novo review hearing also established that RJ and EJ suffered from warts and open wounds. This was sufficient evidence to support the trial court’s finding of proper cause on the basis of medical concerns.”

Regarding the parenting-time exchanges, the parties testified about “contentious” exchanges in July and August 2020, the Court of Appeals explained. “Defendant testified that plaintiff’s brother threatened him during an exchange and later plaintiff’s stepfather threatened him during a phone call. The stepfather accompanied plaintiff to the very next parenting exchange, which created issues and resulted in the police being called. Defendant testified that during this incident the stepfather acted in a very aggressive and violent manner in front of the children. The children are young and witnessing such volatile parenting-time exchanges could have negative impact on their well[-]being.”

Based on the foregoing, the trial court’s finding that proper cause existed to consider a change in the children’s custodial environment “was not against the great weight of the evidence,” the Court of Appeals concluded.

Best-Interest Factors

The plaintiff further argued the trial court’s findings as to the best-interest factors in MCL 722.23 were against the great weight of the evidence - specifically factors (c), (d), (e), (h) and (j).

The Court of Appeals disagreed, addressing each of the plaintiff’s claims.

The plaintiff first asserted the trial court erred by finding that the defendant was favored under factor (c), which considers “[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care . . . and other material needs.” The trial court “made numerous findings in support of this conclusion,” the Court of Appeals said, pointing to those findings.

Regarding factor (c), the plaintiff claimed 1) there was no evidence indicating that she could not financially support the children and she became unemployed as a result of COVID layoffs, and 2) the trial court did not adequately consider that KJ had been injured in both parties’ care, after which each party sought appropriate medical care. “Both parties testified regarding the children’s medical issues, including KJ’s burned foot, KJ’s MRSA, and RJ’s and EJ’s warts,” the Court of Appeals wrote. “Defendant testified that the burn on KJ’s foot was severe, yet he did not believe plaintiff immediately sought medical treatment for the burn given that plaintiff did not mention seeking treatment when she returned the child to his care. According to defendant, plaintiff merely told him to ‘keep an eye’ on KJ. At some point, defendant called CPS on plaintiff regarding the burn. And the trial court noted that when KJ hurt her foot while in defendant’s care, he sought medical treatment for her. The court also properly considered the parties’ different approaches to treating KJ’s MRSA. … Although plaintiff claims that the court punished her for seeking higher education and did not credit her ability to stay home with the children, these were not the only bases on which the court favored defendant under factor (c).”

The trial court’s finding regarding factor (c) “is not against the great weight of the evidence,” the Court of Appeals held.

Next, the plaintiff disputed the trial court’s weighing of factor (d), which addresses “[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.” Specifically, the plaintiff asserted the trial court improperly favored the defendant on the basis of her marriage to Dominic Tyler, the brief period that Tyler lived in the plaintiff’s home and an incident where the police were called. “While plaintiff asserts that there was no evidence demonstrating Tyler had a significant effect on the children, his brief appearance as the children’s stepfather does not convey stability,” the Court of Appeals said. “Accordingly, we cannot say that the trial court’s finding regarding factor (d) was against the great weight of the evidence.”

The Court of Appeals then turned to factor (e), saying that “[f]or similar reasons, the trial court did not err by weighing factor (e) in defendant’s favor.” Factor (e) considers “[t]he permanence, as a family unit, of the existing or proposed custodial home or homes” and, according to the appeals court, both parties testified they had introduced the children to romantic partners, but the defendant indicated that none of his romantic partners moved in with him. Meanwhile, Tyler had briefly lived with the plaintiff before he moved out and the plaintiff filed for divorce. “In addition, the court noted that, before Tyler, plaintiff had become involved with a different man while he was incarcerated and allowed him to move into her home following his release from prison. The evidence did not clearly preponderate against the trial court’s finding that the permanence of the custodial homes favored defendant.”

The plaintiff also argued the trial court improperly held that factor (h), concerning “[t]he home, school, and community record of the child,” favored the defendant because of RJ’s unexcused school absences and tardies. “Having custody of the children during the week, plaintiff was the party responsible for getting RJ to school,” the Court of Appeals wrote. “Considering this record, the trial court’s finding regarding factor (h) does not clearly preponderate in the opposite direction of the evidence.”

Lastly, the plaintiff claimed the trial court wrongly favored the defendant on factor (j), which considers “[t]he 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.” Examining this argument, the Court of Appeals pointed to the “volatile behavior” that occurred during certain parenting-time exchanges, saying it “demonstrates an unwillingness or inability to facilitate a close and continuing relationship between defendant and the children.” As the trial court noted, these confrontations “primarily involved people associated with plaintiff,” the appeals court observed. “Therefore, the trial court’s weighing of factor (j) was not against the great weight of the evidence.”

In conclusion, the trial court’s findings regarding the best-interest factors were not against the great weight of the evidence, the Court of Appeals held. “It follows that the trial court’s custody decision was not an abuse of discretion.”