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FAMILY LAW 17: Trial court erred in making change of legal custody.

In this case, plaintiff argues that the trial court erred when it made a change from sole to joint legal custody without determining the established custodial environment.

The parties were married in 2014, and have one minor child. Plaintiff filed a complaint for divorce in 2016. After the parties participated in a conciliation hearing at the Friend of the Court (FOC), the trial court entered an ex parte order granting the parties joint legal and joint physical custody, creating a parenting time schedule, and ordering the FOC to determine child support.

Plaintiff objected to the ex parte order, and hearings were conducted in March and April 2017. The trial court found that there was an established custodial environment with both parties. Following a review of the best-interest factors, the trial court found that there was clear and convincing evidence to grant the parties joint physical custody and to grant sole legal custody to plaintiff, and it entered a temporary custody order to that effect.

A bench trial was held on June 23, 2017. The trial court then stated that the provisions for custody, parenting time, and child support as addressed at the evidentiary hearing on April 20, 2017 would be incorporated into the final judgment, and asked whether the parties wished to comment on that matter. Plaintiff stated that she continued to dispute the trial court’s grant of joint physical custody but acknowledged that the trial court had stated that it would not be addressing that issue at trial. Defendant stated that he took issue with plaintiff’s approach to the minor child’s medical treatment. After hearing testimony from both parties, the court found that there was proper cause to revisit legal custody. The trial court briefly reviewed the best-interest factors and granted the parties joint legal custody.

A trial court can modify a previous order for custody if a party shows proper cause or change of circumstances.  The court must find by a preponderance of the evidence either proper cause or a change of circumstances before it considers whether an established custodial environment exists.  Assuming it has found proper cause or a change of circumstances, a trial court must determine a child’s established custodial environment before making a custody determination. The failure to determine whether there is an established environment is not harmless, because a trial court must make a determination regarding the established custodial environment in order to determine the proper burden of proof to apply to the best-interest factors.

In this case, the trial court failed to consider whether there was an established custodial environment.  On remand, the trial court must determine whether there is an established custodial environment with either or both parents before conducting its evaluation of the best interest factors. If the court determines that there is an established custodial environment with both parents, with plaintiff, or with defendant, the party seeking to change the established custodial environment must show by clear and convincing evidence that the change is in the child’s best interests. The trial court should evaluate the best interest factors and determine whether either party has met its burden. The court should consider new information or other changes in circumstances that has emerged since the entry of the judgment of divorce.

If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve.

Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.

Contact Aldrich Legal Services

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