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FAMILY LAW 74: An established custodial environment may exist in more than one home.

The parties have one child together, CFM. Plaintiff initiated this action on by filing a complaint for custody, in which he requested joint physical custody of CFM. Shortly thereafter, plaintiff filed an emergency motion for parenting time; the court granted this motion.

Defendant answered plaintiff’s complaint and filed a counterclaim for custody, parenting time, and child support, in which she requested that she be awarded sole physical custody of CFM.

The trial court conducted a bench trial regarding plaintiff’s complaint for custody. Plaintiff and defendant were the only individuals who testified at the trial.

Established Custodial Environment

The court analyzed the parties’ testimony at trial and specifically considered all relevant periods of CFM’s life, including periods when the parties were not living together.

Before making a custody determination, the trial court must determine whether the child has an established custodial environment with one or both parents. A child’s established custodial environment is the environment in which over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. An established custodial environment is one of significant duration, both physical and psychological, in which the relationship between the custodian and child is marked by security, stability, and permanence.

Child Resides with One Parent

Defendant argues that an established custodial environment was created solely with her during the period between November 30, 2019, and February 19, 2020, during which time CFM resided only with defendant. Specifically, the trial court noted that the parties separated on November 29, 2019. The trial court explicitly noted that, after the parties separated, plaintiff cared for CFM several days a week; exercised overnight visits with CFM; demonstrated comfort providing for CFM’s needs for CFM until March 2020. The trial court noted that, after March 2020, plaintiff scaled back dramatically on his parenting time as a precaution against exposing CFM to COVID.

An established custodial environment may exist in more than one home and can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order.

Joint Physical Custody

The trial court concluded that an established custodial environment existed with both parties. The court thus awarded the parties joint physical custody of CFM.

Child Custody & Support

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. If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation, or child support you deserve. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.

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