JENNIFER L MILLS V TIMOTHY R MILLS
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STATE OF MICHIGAN
COURT OF APPEALS
JENNIFER L. MILLS,
UNPUBLISHED
March 17, 1998
Plaintiff-Appellee,
v
No. 195531
Houghton Circuit Court
LC No. 95-009259 DM
TIMOTHY R. MILLS,
Defendant-Appellant.
Before: Cavanagh, P.J., and White and Young, Jr., JJ.
PER CURIAM.
Defendant appeals by leave granted from the trial court order granting primary physical custody
of the parties’ minor child, Zachariah, to plaintiff. We affirm.
I
Defendant first contests the trial court’s finding that there was an established custodial
environment for the child with plaintiff. The determination of the existence of an established custodial
relationship is a question of fact that the trial court must resolve on the basis of statutory criteria. Hayes
v Hayes, 209 Mich App 385, 387-388; 532 NW2d 190 (1995). Findings of fact in child custody
disputes are to be reviewed under the great weight of the evidence standard. Wiechmann v
Wiechmann, 212 Mich App 436, 439; 538 NW2d 57 (1995).
An established custodial relationship environment is one of significant duration, both physical
and psychological, in which the relationship between the custodian and child is marked by security,
stability, and permanence. Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981).
MCL 722.27(1)(c); MSA 25.312(7)(1)(c) provides:
The custodial environment of a child is established if over an appreciable 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 permanency of the relationship
shall also be considered.
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Defendant argues that the trial court should have determined that there was no single established
custodial environment for the child because he had been spending two full weeks every two months
exclusively with defendant. Defendant also asserts that the trial court should not have relied upon the
temporary custody order in making the determination that an established custodial relationship existed.
However, the trial court did not rely on the temporary order, but rather simply concluded that the order
confirmed the existing state of affairs. The trial court based its determination on the fact that plaintiff
had been the child’s primary caregiver since birth. Defendant’s two-week visits with the child, instituted
only since July of 1995, did not amount to “an appreciable time the child naturally looks to the
custodian,” especially as the record discloses that defendant did not visit Zachariah, who was eighteen
months old at the time of trial, for an eight-month period before plaintiff filed for divorce. The trial
court’s finding that there was an established custodial environment with plaintiff was not against the great
weight of the evidence.
II
Defendant next argues that the trial court erred in finding in favor of plaintiff or finding the parties
equivalent with respect to nine of the twelve factors to be considered pursuant to MCL 722.23; MSA
25.312(3) in determining the best interests of the child. The trial court found in favor of plaintiff on
factors a and d and in favor of defendant on factor k. The trial court further found that factors h and i
were not relevant in this case because of the child’s age, and that the parties were equal with regard to
the remaining factors.
First, defendant contests the trial court’s finding that factor a weighed in favor of plaintiff.
However, even accepting defendant’s claims regarding his emotional ties with his child, it was not
against the great weight of the evidence for the court to find that the child had a closer bond with
plaintiff. Zachariah was only eighteen months old at the hearing and, except for the two-week visitations
with defendant, had lived with plaintiff his entire life.
With regard to factor b, defendant presented no evidence that plaintiff’s former alcohol problem
affected her present or future capacity to give love, affection, or guidance. The court’s finding that both
parties were committed to raising the child in the Lutheran faith was not against the great weight of the
evidence.
The trial court’s findings under factor c are not against the great weight of the evidence.
Although defendant has a higher income, plaintiff can adequately provide for Zachariah’s needs.
Defendant next contends the trial court erred in finding that plaintiff prevailed on factor d
because the child lived with him for two out of every eight weeks in a home that defendant had lived in
for one year and in which he intended to remain. Defendant argues that plaintiff provided a less stable
environment because she had changed homes three times in the preceding year and was living in her
boyfriend’s home. However, the child resided with defendant only two out of every eight weeks, and
this visitation only began in July 1995, after months apart. Although plaintiff and her boyfriend were not
married at the time of trial, they planned to marry, and apparently have since done so. Moreover,
although defendant emphasizes that Zachariah did not have his own room when staying with plaintiff, the
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record demonstrates that plaintiff lived with her fiancé in a two-bedroom home, where the child shared a
bedroom with his half-brother. Under these facts, we do not find that the trial court’s evaluation of
factor d flawed.
Likewise, we find no error in the trial court’s findings on factor e. The trial court found the
parties to be equally stable. Defendant has not persuaded us that the trial court erred.
Defendant next contests the trial court’s determination that the parties were equal with regard to
factor f. Although defendant concedes that plaintiff’s relationship with her fiancé does not, in and of
itself, render plaintiff morally unfit, he argues that in combination with plaintiff’s mental and physical
health, the only proper conclusion is defendant was “better fit, morally, to raise the minor child.”
However, plaintiff’s physical and mental fitness are properly not evaluated under this factor, as the
Legislature provided for their consideration under factor g. Moreover, the Michigan Supreme Court
has held that “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily
has a significant influence on how one will function as a parent.” Fletcher v Fletcher, 447 Mich 871,
887; 526 NW2d 889 (1994). Although plaintiff’s relationship with her fiancé was not concealed from
the child, it began after plaintiff and defendant had been separated for a year, when plaintiff intended to
divorce defendant. There is no evidence that plaintiff’s relationship with her fiancé had any detrimental
effect on Zachariah. Accordingly, the trial court’s findings on this factor are not against the great weight
of the evidence.
With regard to factor g, the trial court did consider plaintiff’s previous alcohol treatment and
found, like defendant’s depression, that it was not a current problem. Plaintiff’s pregnancy at the time of
trial did not constitute a physical health problem. The trial court’s findings on this factor are supported
by the great weight of the evidence.
Lastly, defendant argues that the trial court abused its discretion by not according more weight
to factor k in making the custody determination. However, a court may not change the established
custodial environment of a child unless there is clear and convincing evidence that a change in custody
would be in the best interests of the child. Bowers v Bowers, 198 Mich App 320, 324; 497 NW2d
602 (1993). The evidence regarding domestic violence was limited to defendant’s testimony that on
one occasion plaintiff held up a knife to him when she was upset. Under these facts, that defendant
prevailed on factor k did not outweigh plaintiff’s prevalence on factors a and d so as to establish by
clear and convincing evidence that a change in custody would be in the best interests of the child.
Therefore, the trial court did not abuse its discretion in concluding that it was in the child’s best interests
to remain with plaintiff.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Helene N. White
/s/ Robert P. Young, Jr.
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