AMBER LYNNE WRIGHT V KEVIN JAMES SNYDER
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STATE OF MICHIGAN
COURT OF APPEALS
AMBER LYNNE WRIGHT,
UNPUBLISHED
July 13, 2010
Plaintiff-Appellee,
v
No. 295196
Allegan Circuit Court
LC No. 07-040787-DC
KEVIN JAMES SNYDER,
Defendant-Appellant.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
PER CURIAM.
In this child custody dispute, defendant Kevin James Snyder appeals as of right
challenging an August 2009 order denying his motion to modify custody. We reverse and
remand for further proceedings.
I. FACTS AND UNDERLYING PROCEEDINGS
The parties are the parents of EMS, who is now five-years-old. In January 2007, plaintiff
Amber Lynne Wright filed a complaint seeking child support and physical custody of EMS. The
circuit court awarded plaintiff primary physical custody, gave the parties joint legal custody, and
ordered defendant to pay $267 a month in child support.
In July 2008, defendant petitioned for a modification of the custody and child support
orders. The circuit court referred to matter to a Friend of the Court investigator, and a referee
later conducted an evidentiary hearing. The referee found that proper cause and changed
circumstances justified revisitation of the original custody order, and that because “the majority
of parental care for the child has been provided by individuals other than the plaintiff/mother,”
an established custodial environment did not exist with plaintiff. After weighing the statutory
best interest factors, MCL 722.23, the referee recommended that the court award defendant
primary physical custody of the child. The circuit court initially adopted the referee’s
recommendation.
Plaintiff filed an objection, and on August 10, 2009, the circuit court held a de novo
evidentiary hearing. In a bench opinion, the circuit court rendered the following relevant
findings and conclusions:
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Under the Uniform Child Custody Act, the Court is not to change a
previous order if there is an established custodial environment, unless the
evidence is clear and convincing that it’s in the best interest of the child.
If there’s not [an] established custodial environment, then the burden on
the petitioner would [be] a preponderance of the evidence.
The first thing I think that the Court should address is that fact that there
was a recommendation here by the Friend of the Court investigator to change
custody, but it did not address by what standard, if any, it used. It was just
looking at the factors.
So that isn’t really helpful to the Court until and unless it’s determine[d]
what standard of proof . . . [is] required. Now, under the law of this state … [t]he
order itself doesn’t, in and of itself, create an established custodial environment.
The facts create that. And that’s what the Court has to look at. And I have to
look at it at the time the order was entered.
The order in this case was initially entered back in—on February 28th,
2007. At that time, it appears to the Court, at least on the evidence that has been
submitted, the parties had been separated for approximately one year. During that
period of time, the defendant had little, if any, contact with the child.
He provided no support of any substantial nature. The mother was left
with the entire burden during that period of addressing all of the needs of the
child.
Under the statute, an established custodial environment exists if over an
appreciable period of time the child naturally looks to the custodian and that
environment for guidance, discipline, and the necessaries of life—the necessities
of life and parental comfort. The age of the child, the physical environment, and
the inclination of the custodian of the child as to permanency of the relationship
shall also be considered.
For whatever reason, the parties separated. That’s really not material. But
what is material is that for a substantial period of time, the only reason that child
had any parental comfort, necessities of life, discipline, care, were all provided by
the Plaintiff.
Now things may have changed since then, but that’s what existed at the
time this Court order was entered on February 28th[, 2007].
So there isn’t any question in the Court’s mind that at the time the Court
entered its order, there was an established custodial environment with the
Plaintiff, the respondent in this particular hearing.
Now, that being said, then, there has to be a change of circumstances from
the time the Court entered that order, from that point—because of what in fact
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existed—and now, to show that it’s in the best interest of the child by clear and
convincing evidence. That’s the burden that’s placed on the petitioner.
[Emphasis added.]
The court then considered the best interest factors, and concluded:
Now, basically I think the parties are equal in most areas, a couple areas
Mr. Snyder is superior to Mrs. Wright. And a couple areas she has the advantage
over him. Therefore, the Court concludes the evidence is not clear and
convincing. The motion to change custody is denied and the previous orders of
the Court will stand.
On November 18, 2009, defendant filed a claim of appeal. A month later, defendant filed
in the circuit court an emergency motion for temporary custody of EMS, alleging that EMS had
fallen from a second-story window while being inadequately supervised by plaintiff’s boyfriend.
The parties agree that in March 2010, the Kent Circuit Court exercised jurisdiction over the child
on the basis of a petition filed by the Department of Human Services (DHS).
II. ANALYSIS
Defendant challenges the circuit court’s denial of the motion to modify custody,
contending that the court committed several legal errors in its analysis. This Court must affirm
all orders concerning custody “unless the trial court’s findings of fact were against the great
weight of the evidence, the court committed a palpable abuse of discretion, or the court made a
clear legal error on a major issue.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336
(2008). “When a court incorrectly chooses, interprets, or applies the law, it commits legal error
that the appellate court is bound to correct.” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d
889 (1994).
As a preliminary matter, because the Kent Circuit Court has assumed jurisdiction over the
child, that court’s orders “supercede all previous orders, including custody orders entered by
another court, even if inconsistent or contradictory.” In re AP, 283 Mich App 574, 593; 770
NW2d 403 (2009). When the Kent Circuit Court terminates its jurisdiction over the child, the
last circuit court custody order in this case will revive. At that point, we direct the circuit court
in this case to reconsider defendant’s motion for a change of custody in light of the legal
standards set forth in this opinion.
We agree with defendant that the circuit court committed clear legal error by making a
determination of EMS’s established custodial environment premised on the conditions that had
existed at the time it entered the February 28, 2007 custody order, rather than at the time of the
evidentiary hearing. On remand, the proper question for consideration is whether, at the time of
an evidentiary hearing, the child has an established custodial relationship with one or both
parties. Rittershaus v Rittershaus, 273 Mich App 462, 471; 730 NW2d 262 (2007). “Whether an
established custodial environment exists is a question of fact for the trial court to resolve on the
basis of statutory criteria. The trial court's custody order is irrelevant to this analysis. Rather,
the focus is on the circumstances surrounding the care of the children in the time preceding trial,
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not the reasons behind the existence of a custodial environment.” Hayes v Hayes, 209 Mich App
385, 387-388; 532 NW2d 190 (1995) (internal citations omitted).
After a decision is made regarding EMS’s established custodial environment, the court
must determine which burden of proof to apply. Wealton v Wealton, 120 Mich App 406, 410;
327 NW2d 493 (1982). If the court finds that an established custodial environment exists with
plaintiff, it may order a custodial change only if defendant presents clear and convincing
evidence that a custodial change would serve the child’s best interests. Foskett v Foskett, 247
Mich App 1, 6; 634 NW2d 363 (2001). Clear and convincing evidence is also required to
change custody if the court finds that an established custodial environment exists with both
parents. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000). If no established
custodial environment exists with either parent, the court may change custody on defendant’s
proof, by a preponderance of the evidence, that the change serves EMS’s best interests. Foskett,
247 Mich App at 6-7.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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