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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

The parties were not married when the minor child was born in September 2017. Plaintiff filed a paternity complaint and subsequently signed an affidavit of parentage. Plaintiff also filed a motion requesting joint legal and physical custody in addition to parenting time. The parties signed a temporary consent order that gave defendant physical custody of the child and awarded plaintiff a parenting-time schedule.

At a pretrial hearing, the parties stipulated to joint legal custody, and the trial court concluded that only parenting time was at issue.

At the evidentiary hearing, plaintiff sought an increased parenting-time schedule, describing his ideal parenting-time schedule as all day, three days per week, and one overnight. Plaintiff’s proposed schedule depended on his ability to bring the child to the daycare facility where he worked. Plaintiff maintained that he would be able to watch his own child while also caring for the other children at the daycare facility. The owner of the daycare facility confirmed plaintiff’s testimony about this arrangement. The trial court was skeptical that plaintiff would be able to care for the other children while watching his own child and refused to grant plaintiff the parenting-time schedule he requested. Instead, after hearing testimony about both parties’ work schedules and childcare arrangements, in addition to testimony about plaintiff’s parenting skills and the parties’ co-parenting abilities, the trial court determined that plaintiff should have parenting time for four hours on three weekday evenings and for a six-hour block of time on Sunday afternoons.

The final order governing custody and parenting time also granted the parties joint legal custody and defendant primary physical custody.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

The appeals court agreed that the trial court failed to articulate its findings about the child’s established custodial environment and the child’s best interests related to physical custody and parenting time but disagreed that the trial court was required to make separate best-interest findings about which daycare the child attended.

A trial court is required to determine whether there is an established custodial environment with one or both parents before making any custody determination. Similarly, the trial court is required to make a finding about the child’s established custodial environment before ordering parenting time. This determination is mandatory because the burden of proof with respect to the child’s best interests depends on whether an established custodial environment exists.

Here, the trial court committed clear legal error in failing to address whether there was an established custodial environment.

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.

Our family law attorneys at Aldrich Legal Services have helped countless family law clients across southeast Michigan, including in Wayne, Washtenaw and Oakland counties. Contact us at our law firm and we can help protect your custodial rights.

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FAMILY LAW 50: A Michigan Court has jurisdiction to make an initial custody determination when it is the home state of the child on the date of the commencement of the proceeding or within 6 months before the commencement of the proceeding.

PROCEDURAL HISTORY  Plaintiff and defendant have twin sons, but never married.  On August 13, 2008, the Court of Common Pleas Juvenile Division in Montgomery County, Ohio established plaintiff as the legal father of the children and...

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