FAMILY LAW 31: Custody decisions require all best interest factors, but parenting time decisions only contested issues.

Following their divorce in 2013, the parties were awarded joint legal and physical custody of their minor children, with defendant having primary parenting time. In 2017, defendant and her new husband moved from Pinckney to Morrice and enrolled the children in the Morrice School District without consulting plaintiff or obtaining his consent.

The parties thereafter filed competing motions to determine which school district the children should attend, and plaintiff also sought sole custody of the children due to defendant’s refusal to cooperate with arrangements for plaintiff’s makeup parenting time, as well as alleged conduct by defendant to alienate the children against plaintiff.

On November 30, 2017, the trial court found that the children should remain in the Pinckney School District. The trial court issued a temporary order giving plaintiff primary parenting time with the children until defendant moved back to the Pinckney area, which she indicated that she planned to do. However, after defendant decided not to sell her Morrice home, the trial court held a custody hearing to determine whether its prior custody order should be changed.

Following the hearing, the trial court awarded plaintiff sole legal custody of the children, and modified the parenting time arrangement so that primary parenting time would be with plaintiff, with defendant receiving parenting time on Wednesday evenings, alternating weekends, and shared holidays and summer vacations.

Defendant now challenges the trial court’s decisions to award plaintiff sole legal custody of the children, and to modify the parenting time arrangement.

Evidence that one parent has been the primary caregiver does not preclude a finding that an established custodial environment exists with the other parent. This Court has clearly recognized that an established custodial environment can exist with both parents in their respective households.

The trial court found that defendant had engaged in misconduct that was designed to alienate the children from plaintiff.

With respect to the trial court’s November 2017 parenting time decision, defendant maintains that the trial court did not consider either the best interest factors under MCL 722.23 or the factors in MCL 722.27a(7).

Custody decisions require findings under all the best interest factors, but parenting time decisions may be made with findings on only the contested issues. Moreover, defendant’s argument that the trial court erred by temporarily changing the parenting time schedule is undercut by the fact that she had indicated to the trial court at the hearing that she planned to move back to Pinckney before the start of the second school semester, and the trial court’s indication that, if defendant did so, it would revisit its decision.

In this case, the evidence clearly supports the trial court’s finding that the parties, and defendant, were unable to effectively communicate or agree on the needs and best interests of their children. Defendant moved herself and the children to Morrice and enrolled the children in Morrice schools without informing plaintiff or seeking his consent. The trial court’s finding that joint custody was not feasible is not against the great weight of the evidence.

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.

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