The court will first examine if a custodial environment has been established with one or both parents (see MCL 722.27(1)(c)). This finding is based on whether, “over an appreciable period of time, the child naturally looks to a custodian in that environment for guidance, discipline, necessities of life, and parental comfort.”
Ask yourself; who feeds the child and puts him to bed? Who brings the child to worship services? Who spends the most time with the child? And who does the child look to most for guidance and care?
Burden of Proof for Parent Seeking Change of Custody:
Once the court determines if there is a custodial environment, it next applies one of two burdens of proof to the parent seeking to establish or change custody.
First, if a custodial environment exists, the parent must provide “clear and convincing evidence” the changes requested are in the best interest of the child.
Second, if a custodial environment does not exist, then the court requires a parent to show, “by the preponderance of the evidence” that the changes requested are in the best interest of the child.
The court will determine, based on whether there is a custodial environment, what standard applies and then apply it to the petitioning parent’s evidence.
What Does the Burden of Proof Mean?
The difference between the two standards is that while “preponderance of the evidence” is very neutral and weak, “clear and convincing” is a strong burden to overcome. Changing custody under the first standard is easier to accomplish and is more like a free-for-all. Whereas, changing custody under the second standard difficult and requires a very strong reason, like abuse, or neglect, in order to change.
Effects of Certain Facts:
- Prior custody orders: the existence of one, by itself, should not create an established custodial environment.
- Custodial parent’s voluntary relinquishment of custody: the court looks to all the circumstances. The amount of time a parent has allowed the custody change is key here. Generally, the court encourages people to resolve their issues.
- Parents living together (prejudgment): The court should use the “preponderance of the evidence” standard when reviewing child best interest factors.
Child Best Interest Factors:
The child best interest factors are laid out in Michigan law and can be found under MCL 722.23. For an in depth discussion of these factors and this section of law, see my “Child Best Interest Factors” article.
Statutory and Other Links: custodial environment MCL 722.27; child best interest factors MCL 722.23.