A trial court must follow certain steps when making a child custody determination and when the trial court fails to do so, it is the basis for an appeal. On December 22, 2022, the Michigan Court of Appeals issued its opinion in the case of Bryant v. Bryant where the Appeals Court set aside the trial court’s custody opinion after concluding: “. . . that there are too many missing findings on essential issues. . .”
Every Michigan trial new child custody determination requires a two-step analysis.
The first step is determining if an Established Custodial Environment exists as defined in MCL 722.27(1)(c) exists. The custodial environment is established with a parent if over an appreciable period of time the child looks to that parent for guidance, discipline and the necessities of life and parental comfort. If there is an established custodial environment with one parent, a court will not alter it absent a showing a clear and convincing evidence, otherwise a court can change custody upon a showing of a preponderance of the evidence. In Petsch v. Auer, the trial court errored in not making a finding of an established custodial environment.
The second step is a best interest analysis, an analysis of the 12 best-interest factors listed in MCL 722.23 which a court must consider when making a custody determination. The 12 best interest factors provide topics to be considered by the trial court, such as the ability of the parties to foster and encourage a good parent-child relationship with the other parent (See MCL 722.23 factor j) among others.
In the Bryant case, the Court of Appeals identified made several errors. First, in determining that there was an established custodial environment with both parents without consideration that the child lived primarily with one parent. Second, the trial court did not identify the standard of proof it applied in making its custody determination and third, the trial court did not explain if the change in custody (to equal) would modify the established custodial environment.
It is important to acknowledge that the trial court can and does make mistakes and when they do, you can ask a panel of three judges in the Michigan Court of Appeals to hold the trial court accountable and fix the mistake. We can help.
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