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FAMILY LAW 52: Defendant-mother was not entitled to relief on her claim the trial court did not comply with the requirements for a de novo hear, the trial court did not err in using the preponderance of the evidence standard, and its best interest f

PERTINENT FACTS

In July 2017, plaintiff and defendant divorced by consent judgment. Under the judgment of divorce, the parties shared joint legal and physical custody of their three minor children. On September 24, 2018, plaintiff filed a motion to modify parenting time. The matter was referred to the Friend of the Court (FOC), and the FOC did not recommend a modification of parenting time. Plaintiff filed objections to the FOC recommendation.  The referee found that there was an established custodial environment with both parties and that plaintiff established proper cause or change of circumstances. However, the referee found that it was not in the children’s best interests to modify the parenting schedule.  Plaintiff filed objections to the referee recommendation and order and requested a de novo hearing. A de novo hearing was held in September 2019.   The trial court disagreed with some of the referee’s findings on best-interest factors; it affirmed the referee’s other findings. The trial court granted plaintiff’s request and modified the parenting-time schedule so that plaintiff and defendant had equal parenting time with alternating weeks. Defendant now appeals.

DE NOVO HEARING

On appeal, defendant first argues that reversal is required because the trial court failed to comply with the statutory and court rule requirements for a de novo hearing by admitting that it only read “most” of the hearing transcript. Defendant failed to preserve this issue by objecting in the trial court, therefore our review is for plain error affecting substantial rights.  The record reflects that the trial court reviewed the referee’s recommendations and the hearing transcripts; the trial court stated its disagreement with the referee’s findings and explained in detail why it disagreed with those findings by referring to evidence presented at the referee hearing. The trial court ultimately made an informed decision.

BEST-INTERESTS THRESHOLD

Next, defendant argues that the trial court erred when it affirmed the referee’s determination that plaintiff had met the threshold required to modify parenting time because it applied the wrong legal standard.  Defendant and Defendant’s counsel both agreed that Plaintiff was seeking a modification of parenting time, not custody, and that the less stringent standard of preponderance of the evidence should be used.  When the trial court was making its ruling, it stated that the burden of proof is preponderance of the evidence, and defendant again did not object. At no point during the de novo hearing did defendant’s counsel suggest that the referee applied the wrong legal standard. Therefore, defendant has waived the issue as to which legal standard applied.  

PREPONDERANCE-OF-THE-EVIDENCE STANDARD

Defendant argues that the trial court erred when it applied the preponderance of the evidence standard to the best-interest factors because the proposed modification affected the children’s established custodial environment.  Defendant failed to argue that the proposed modification would affect the children’s established custodial environment, and she failed to object to the legal standard she deems incorrect on appeal. Therefore, this issue is unpreserved.  Defendant in this case has not established a “substantial” modification of parenting time because the modification reduced defendant’s parenting time by only approximately 18%.  In addition, the change in this case did not modify the children’s schools. We therefore conclude that the change in parenting time in this case did not affect the children’s custodial environment. And, because the proposed modification did not alter the established custodial environment, the trial court did not err when it applied the preponderance of the evidence standard regarding the best-interest factors.

CHILDREN’S BEST INTERESTS

Lastly, defendant argues that the trial court’s findings regarding best-interest factors (c) and (j) were against the great weight of the evidence. We disagree. A trial court’s findings regarding the existence of an established custodial environment and regarding each custody factor should be affirmed unless the evidence clearly preponderates in the opposite direction. An abuse of discretion standard applies to the trial court’s discretionary rulings such as custody decisions. The record supports the findings made by the court. Therefore, because the evidence does not clearly preponderate in the opposite direction, we affirm the trial court’s best-interests determination.

ADVICE TO CLIENTS FACING PRENTING TIME ISSUES IN FAMILY LAW CASES

Aldrich Legal Services understands what a stressful time this is for you when you have parenting time issues.

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