I am a family law attorney, also known as a divorce lawyer and I practice in the Troy area of Oakland County Michigan. The most difficult issue faced by many people dealing with divorce is custody of the children. The court will determine what burden of proof a parent seeking custody must meet in order to obtain custody based upon whether there exists an established custodial environment with the other parent. If the established custodial environment would change by granting one party physical custody, then the party seeking custody must prove by clear and convincing evidence that it is in the child's best interests to grant that party custody.
Is the established custodial environment based upon with whom the child has a stronger bond or whom was the stay-at-home parent?
The answer should be no, a custodial environment may exist with both parents so that while one parent may have a stronger bond with the child, there may still exist an established custodial environment with the other parent.
The case of Boots v Vogel-Boots, Michigan Court of Appeals, Docket No. 309265, February 5, 2013, (unpublished), provides an interesting example of this analysis by the Appellate Court. In that case, the divorce court awarded sole physical custody of the minor child to the mother and the father appealed. He argued that the court erred in its factual findings with respect to the minor child's established custodial environment which in turn caused the court to use the wrong burden of proof when it analyzed the custodial best interest factors.
The Court of Appeals agreed with the father regarding the established custodial environment. It defined the custodial environment as follows: The established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is marked by security, stability and permanence. It is established if over an appreciable period of time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to the permanency of the relationship should be considered.
Applying that definition to the facts of the case, the Court of Appeals found that there was no doubt that the child had an established custodial environment with the mother, however, the divorce court failed to analyze whether there also existed a custodial environment with the father before it analyzed the custodial best interest factors.
There was a sufficient factual basis for the trial court to have found that there existed a custodial environment with both parties. The minor child resided with both parties until he was approximately 3 years old. The father moved out but returned every other night to participate in parenting which continued until the child was 3½. Then the child spent 5 overnights out of every 14 with the father as well as 2-3 dinner periods on additional days. The child and the father shared common interests and he was involved in the child's activities as well as coaching the child's t-ball and soccer teams for two years. He also has taken the child fishing, camping, hiking and to church.
The divorce court, it appears, found that the father did provide care, love and guidance to the child and was a good father but that the minor child's bond with the mother was stronger and the child looked to her more for fulfillment of his emotional needs. The Court of Appeals stated that the determination with whom a child has an established custodial environment is not a contest; the child can have an established custodial environment with one, neither or both parents. In this case, the Appellate Court held that a determination that the child did not have such an environment with the father as well as the mother was against the great weight of the evidence. In short, the divorce trial court should have found that the custodial environment existed with both parties.
Due to this finding, the mother should have had to prove that granting her sole physical custody was in the child's best interests by clear and convincing evidence, rather than the preponderance standard utilized by the divorce judge. The Court of Appeals then remanded the case for a determination as to whether sole physical custody to the mother would still be appropriate under the clear and convincing standard.
It appears that if one is not the primary care provider for the child it is still important to argue that if there is a stronger custodial environment with the other parent that there still exists a custodial environment with the non-primary care provider parent as well. This should help provide the party that has not been the stay-at-home parent with a greater opportunity to seek joint physical custody or at least additional parenting time with the child or children.