DAWN MARIE WHITE V ADAM MARANO
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STATE OF MICHIGAN
COURT OF APPEALS
DAWN MARIE WHITE,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellant,
v
No. 253830
Wayne Circuit Court
LC No. 02-211930-dc
ADAM MARANO,
Defendant-Appellee.
Before: Zahra, P.J., and White and Talbot, JJ.
TALBOT, J. (dissenting).
I agree that the trial court’s findings that the parties were substantially equal on the best
interest factors were not against the great weight of evidence. MCL 722.28; LaFleche v Ybarra,
242 Mich App 692, 695; 619 NW2d 738 (2000). I respectfully dissent, however, from the
majority conclusion that defendant met his burden of providing clear and convincing evidence
that a change in the established custodial environment was in the child’s best interest in this case.
Phillips v Jordan, 241 Mich App 17, 24-25; 614 NW2d 183 (2000).
As the majority notes, equality on the best interests factors will not “necessarily” prevent
a party from satisfying its burden of proof by clear and convincing evidence on a motion to
modify custody. Heid v AAASulewski (After Remand), 209 Mich App 587, 594; 532 NW2d 205
(1995). The high statutory burden is intended, however, “to erect a barrier against removal of a
child from an established custodial environment and to minimize unwarranted and disruptive
changes of custody orders.” Id. In Heid, this Court found that a change in custody was
warranted because the child had a “strong emotional bond” to the non-custodial parent, and
because both parents worked well together to provide “a stable, secure and happy environment”
for the child. Id., 595.
By contrast, in this case, the trial court made reference to the best interests of the child,
but made no “qualitative review of the evidence adduced.” Id. Instead, the court based its
decision primarily on the hope that the child could develop a strong bond to both parents and on
the belief that “with proper direction” the child’s immature and alienated parents would “be able
to communicate with each other regarding their daughter.” Id., 595.
I believe that the unwarranted change from an established custodial environment, along
with the strained parenting schedule in this case - described by the trial court itself as “somewhat
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complicated” - will be extremely disruptive to this three-year old child with special needs. I
would reverse.
/s/ Michael J. Talbot
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