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MICHIGAN FAMILY LAW 97: The plaintiff’s travels impacted or would impact the child’s permanence and environment.
In this case, the trial court awarded plaintiff sole physical custody of the child, awarded defendant and plaintiff joint legal custody, and granted parenting time as defendant and plaintiff agreed.
Move out of State Without Trial Court Permission
Defendant moved to Georgia but attempted to remain in the child’s life. The plaintiff and the child moved to Illinois without the trial court’s permission and against defendant’s wishes. Until plaintiff returned to Michigan, plaintiff traveled between Illinois and Michigan at least monthly.
From 2019 to 2022, plaintiff and defendant struggled to parent the child together. At times, the plaintiff, who was the child’s primary caretaker, struggled to share information about the child with defendant or prevented defendant from talking with the child.
Motion for Primary Physical Custody
Defendant filed a motion for joint legal custody and primary physical custody or, in the alternative, increased parenting time. A referee concluded that defendant did show proper cause or change of circumstances for his custody motion to proceed.
The referee came to this conclusion because (1) plaintiff moved from Michigan to Illinois without the trial court’s permission, (2) the trial court previously awarded defendant significant parenting time, (3) defendant alleged that plaintiff prevented defendant’s parenting time, and (4) plaintiff brought the child to Michigan with only two outfits.
Child’s Best Interests
Whether a change of custody was in the child’s best interests was a central component of the trial court proceedings. The record shows that the trial court found, and defendant concedes, that an established custodial environment existed with plaintiff. As a result, the trial court properly determined that the defendant was required to establish by clear and convincing evidence that awarding primary physical custody to him was in the child’s best interests.
The trial court found that MCL 722.23(b) slightly favored defendant because defendant and plaintiff took responsibility for the child, but plaintiff had an arrest record. The trial court found that MCL 722.23(f) favored defendant because plaintiff demonstrated very aggressive behavior, as well as criminal charges and convictions.
The trial court found that MCL 722.23(d) and (e) slightly favored defendant because plaintiff, and presumably the child as well, frequently traveled back and forth between states and there was uncertainty about whether plaintiff would remain in Michigan given that plaintiff’s significant other was in Illinois. The plaintiff’s travel and likely future travels impacted or would impact the child’s permanence and environment.
The trial court found that MCL 722.23(j) favored defendant because there was insignificant testimony about how defendant treated plaintiff, but plaintiff decided to withhold information about the child from defendant.
Change of Custody Awarded
After a two-day trial, the trial court found that although an established custodial environment existed with plaintiff, defendant proved by clear and convincing evidence that it was in the child’s best interests to change custody and awarded defendant primary physical custody.
Assistance With Child Custody
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. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.
