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FAMILY LAW 64: The court reversed the trial court’s order granting joint physical and legal custody of the parties’ children to defendant-father, concluding that the trial court improperly conflated his motion to change custody with plaintiff-mother

The parties divorced in 2013. The judgment of divorce granted mother sole physical and legal custody and ordered that the child’s domicile would remain in Michigan. In 2015, the trial court granted mother’s motion to change domicile, permitting mother to move to Georgia where she was to undergo several months of training for her new position as a flight attendant.  In January 2019, father filed a motion to change custody requesting joint legal and physical custody. After an evidentiary hearing, the referee found that there was proper cause or change of circumstances for revisiting the existing custody arrangement. Subsequently, in July 2019 the referee submitted her recommendation including written findings that proper cause or change of circumstances existed and that the children had an established custodial environment with both parents. In August 2019, mother moved to set aside the referee’s recommendation, challenging the established custodial environment finding and asserting that each and every best-interest factor actually favored her. Mother also filed a separate motion seeking to change the children’s domicile to Dallas, Texas. After a de novo hearing before the trial court, the trial court found that there was an established custodial environment with both parents and, although it differed from the referee respecting several individual factual findings on the children’s best interests, held that it was in the children’s best interests for both parents to share joint physical and legal custody. The trial court denied mother’s motion to change the children’s domicile. This appeal followed.


We agree with mother that the trial court improperly conflated father’s motion to change custody with mother’s motion to change domicile. As noted, the evidentiary burden in a motion to modify a custody order turns on whether the change will alter an established custodial environment. The trial court’s analysis largely tracked the referee’s recommendation so we examine both in order to clearly understand the court’s ruling. In her recommendation, the referee concluded that father’s request for joint custody would not change the established custodial environment. Mother does not challenge that finding, and we see no error in it.  Accordingly, father had the burden to show by a preponderance of the evidence that his motion for joint custody was in the children’s best interests. However, the referee did not address father’s burden of proof and instead concluded that mother had the burden to prove by clear and convincing evidence that changing the children’s domicile to Texas was in their best interests. Finding that mother did not meet that burden, the referee recommended that father be granted joint legal and physical custody. At the de novo hearing, the trial court did not expressly state the applicable burden of proof for father’s motion for joint custody before it evaluated the best-interest factors. However, in conclusion, it followed the referee’s analysis: [L]ooking at all of the evidence in this particular matter, and the considerations, the Court will find that [mother] has not presented sufficient evidence, by clear and convincing evidence, to change the established custodial environment that the Court finds with both parties. So, the Court is going to grant joint legal and joint physical custody, in this matter. The trial court then evaluated mother’s motion to change domicile. The court considered the factors set forth in MCL 722.31(4) and indicated that they supported a change in domicile, but found that moving the children to Texas would alter the established custodial environment and that mother had not shown by clear and convincing evidence that the change was in the children’s best interests. To summarize, the trial court effectively placed the burden of proof on mother for both motions. This was clear legal error. That mother was seeking a change of domicile for the children did not relieve father of his burden to prove by a preponderance of the evidence that granting him joint legal custody was in the children’s best interests. Like the referee, the trial court conflated the motions, and reasoned that unless mother could show by clear and convincing evidence that moving to Texas was in the children’s best interests then father was entitled to joint custody. But mother’s proposed move and father’s motion for joint custody were separate issues and should have been treated as such. While this may have involved duplicate efforts as to the best-interest factors, we cannot overlook the trial court granting a parent’s motion for joint custody by erroneously placing the evidentiary burden on the other parent. On remand, the trial court shall evaluate father’s motion for change of custody under a preponderance of the evidence standard with father having the burden of proof. The court shall then separately address mother’s motion to change domicile.


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