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FAMILY LAW 70: Referee found that it was in the best interests of the children for plaintiff to have primary physical custody.

On March 4, 2019, the trial court entered a consent judgment of divorce regarding the parties. The judgment of divorce provided that the parties would each have joint physical and legal custody of all the minor children. The parties were to exercise parenting time on alternating weekends, and each party was to have the minor children for two consecutive days each week.

Modify Parenting Time

On September 3, 2019, plaintiff moved the trial court to modify the parenting time schedule. Following two days of testimony and an in-camera interview of all the children, the referee granted plaintiff’s motions, awarded plaintiff primary physical custody, and modified the parenting time such that defendant, while maintaining his parenting time every other weekend, only had four hours of parenting time on two weekday evenings.

Defendant argued the referee made several factual findings that were against the great weight of the evidence and, as a result, her ultimate finding that a change of custody was in the best interests of the minor children was erroneous.

Change of Circumstance or Proper Cause

Before considering a change of custody, a trial court must find that there has been a change of circumstances or proper cause.

The party moving for the change of custody bears the burden of proving the modification is in the best interests of the child, and the trial court must consider all the statutory best-interest factors set out in MCL 722.23.

Stable Environment

While defendant continued to live in the marital home, he had introduced another woman and her children to the household, and this woman had engaged in criminal activity involving the care of her children. The referee acknowledged there were no allegations that she had abused these minor children, but she found that such activity going on in defendant’s home made it unstable. The record supported the referee’s finding that plaintiff’s home provided more stability to the minor children.

In addition, plaintiff and defendant both testified about the daily routine of the minor children on defendant’s days with the children. Any day that defendant worked, and the children did not have school, they went to plaintiff’s home until defendant got out of work. Plaintiff was able to work from home and make her own schedule while defendant could not, and plaintiff exercised her right of first refusal under the relevant provision in the parties’ judgment of divorce which requires both parties to offer the other party parenting time if he or she will be unable to be present for four or more hours during their scheduled parenting time.

Referee’s Findings and Recommendation

After making the above factual findings, the referee found that it was in the best interests of the minor children for plaintiff to have primary physical custody, while defendant would receive slightly less parenting time.

Experience with Modifications

It is important to remember that decrees regarding child support, child custody, and visitation are not always final. Circumstances change all the time, which is why it is important to have an experienced and understanding attorney by your side at every step of the way.

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