A determination of an established custodial environment is important because a court cannot enter an order for child custody (or modify an existing order) without first determining it exists and the trial court must make clear findings on this issue before deciding custody. An established custodial environment can exist with one or both parents.
Michigan Compiled Laws section 722.27(1)(c) provides the following definition:
. . .The custodial environment of a child 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. . .MCL 722.27(1)(c)
Burden of Proof
Whether a custodial environment exists determines the burden of proof required by the parent wanting to establish or change custody.
If an established custodial environment exists with one parent, a change of custody cannot be made absent clear and convincing evidence to do so.
If If an established custodial environment exists with both parents, a change of custody cannot be made absent a preponderance of the evidence to do so.
The different burden’s of proof.
Burden of proof describes the weight of the evidence required to prove a claim. The highest burden of proof in Michigan is beyond a reasonable doubt which is reserved for criminal proceedings. The next highest burden of proof is clear and convincing evidence and the lowest burden of proof is preponderance of the evidence.
In a child custody proceeding, the application of the appropriate burden of proof can make a big difference in the outcome.
For example, if an established custodial environment exists with one parent, the burden of proof is clear and convincing evidence. In simple terms, a court will not modify the custodial arrangement absent clear and convincing evidence to do so, which is a very high burden.
On the other hand, if it exists with both parents, the burden of proof is preponderance of the evidence. In simple terms, if the evidence is “more likely than not true”, the burden is met.
Another way to think of burden of proof is using the scales of justice. Clear and Convincing evidence requires the scales to be far apart, whereas a preponderance of the evidence simply requires one side of the scale to be a little more than the other.
How does a court determine the existence of an established custodial environment?
Whether an established custodial environment exists is entirely a factual determination. The court is not concerned with why the custodial environment exits, but only that it does.
An established custodial environment can exist with both parents even if one parent provides the children’s primary residence and the majority of the financial support.
The established custodial environment focuses on stability and continuity of the parent-child relationship. Questions such as: “Do you know the names of your child’s teacher?, doctor?, friends? . . .” or “What time does your child go to bed?” etc. can help a court make a determination of the existence of an established custodial environment.
The age of the child, the physical environment and the permanency of the relationship with the parent are also considered in determining if an established custodial environment exists.
It is so important.
The importance of considering an established custodial environment cannot be understated because the different burden’s of proof can change the outcome of a custody case.
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