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FAMILY LAW 65: The court held that because the ECE was not altered by the change of school districts, the referee properly applied the preponderance of the evidence standard when reviewing the best interest and parenting time factors.

BASIC FACTS

The parties divorced in 2018. Their judgment of divorce provided that plaintiff would have primary physical custody and that the parties would have joint legal custody of the two minor children. The judgment of divorce stated that the children would continue to attend school in the Harper Creek school district but that if plaintiff were promoted at Meijer, she could ask the court for a change in schools. In November 2019, plaintiff filed a motion for a change in schools on the basis that she had received a promotion at a different location within Meijer.  Following an evidentiary hearing, the referee found that the proposed change in the parenting-time order would not alter the children’s established custodial environment, which was with both parents, and that a change in schools and the accompanying modification in defendant’s parenting time was in the children’s best interests by a preponderance of the evidence. The referee recommended that plaintiff’s motion be granted.  Defendant filed an objection to the referee’s findings and recommendations. Following an evidentiary hearing on defendant’s objections, the trial court entered an order adopting the referee’s findings and recommendations. This appeal followed.

STANDARD OF REVIEW

All orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. For parenting-time matters, if the proposed change does not alter the established custodial environment, a preponderance of the evidence must demonstrate that the change would be in the best interests of the child. If the proposed change alters the established custodial environment and therefore amounts to a change in custody, there must be clear and convincing evidence that the change would be in the child’s best interests.

BURDEN OF PROOF

Defendant argues that the referee’s finding that the proposed change did not alter the children’s custodial environment was against the great weight of the evidence and therefore plaintiff was required to prove by clear and convincing evidence rather than a preponderance of the evidence that a change in schools and the accompanying change in the parenting-time order was in the children’s best interests. Defendant believes that the children’s established custodial environment was altered because his parenting time was significantly reduced and because the “day-to-day role with his children [could not] simply be made up by adding an occasional fifth weekend or one week in the summer of parenting time.” Although defendant received less parenting time under the trial court’s final order than under the judgment of divorce, defendant testified that he was unable to dedicate the amount of time he would have liked to each child during his midweek parenting time because he had to balance his time with each child. Therefore, as the referee suggested, the increase in the frequency of overnights along with extra time during the summer would allow defendant to spend more meaningful, quality time with the children. Because the modification in parenting time would not change the children’s established custodial environment, the referee properly applied a preponderance-of-the-evidence standard to the best-interests analysis.

CONCLUSION

 In sum, because the established custodial environment was not altered by the change of school districts, the referee correctly applied the preponderance-of-the-evidence standard when reviewing the best-interest and parenting-time factors

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