RALUCA LOWE V STEVEN RUSSELL LOWE
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STATE OF MICHIGAN
COURT OF APPEALS
RALUCA LOWE,
UNPUBLISHED
December 14, 2010
Plaintiff-Appellee/Cross-Appellant,
v
No. 298052
Oakland Circuit Court
LC No. 2008-745497-DM
STEVEN RUSSELL LOWE,
Defendant-Appellant/CrossAppellee.
Before: JANSEN, P.J., and SAWYER and O’CONNELL, JJ.
PER CURIAM.
In this domestic relations case, defendant appeals by right the trial court’s order granting
plaintiff sole legal and physical custody of their son and awarding defendant three nights a week
of parenting time. Plaintiff cross-appeals the same order. We affirm.
I
Defendant argues that the trial court erred by finding that the child had an established
custodial environment with plaintiff. He also argues that the trial court erred in its consideration
and application of the statutory best-interest factors and by granting sole legal and physical
custody of the child to plaintiff.
A
Defendant first argues that the trial court erred by finding that an established custodial
relationship existed with plaintiff. We disagree. Whether an established custodial environment
exists is a question of fact. MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d
363 (2001). The trial court’s findings of fact are reviewed under the great weight of the evidence
standard and will be affirmed unless the evidence clearly preponderates in the opposite direction.
McIntosh v McIntosh, 282 Mich App 471, 474-475; 768 NW2d 325 (2009).
An established custodial environment exists 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); Pierron v Pierron, 486 Mich 81, 85-86; 782
NW2d 480 (2010) (Pierron II). The existence of a temporary custody order does not preclude a
finding that an established custodial environment exists with the noncustodial parent or that an
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established custodial environment does not exist with the custodial parent. Berger v Berger, 277
Mich App 700, 706-707; 747 NW2d 336 (2008).
The trial court noted that plaintiff and defendant shared joint legal custody and plaintiff
had sole physical custody during the course of the divorce proceedings. The trial court found:
The child has resided with both parties from birth. He is [two] years old.
The child seeks emotional support from [p]laintiff. Evidence presented revealed
that [the child] spends the majority of his time with [p]laintiff. She is and has
been the primary custodian. The child looks to [p]laintiff for guidance, discipline,
the necessities of life, and parental comfort . . . . The court has also considered
the age of the child, the physical environment, and the inclination of the custodian
and the child as to the permanency of the relationship.
The trial court correctly ruled that an established custodial environment existed with
plaintiff. When plaintiff and defendant lived together at the marital home, plaintiff was the
primary caregiver of the child. Plaintiff and defendant both testified that the child looked to
plaintiff for guidance and discipline. It is true that during this period, defendant was solely
responsible for plaintiff’s and the child’s expenses. However, plaintiff was primarily responsible
for the child’s well-being. She breastfed him, took him to the doctor, and watched him. Plaintiff
described asking defendant to take care of the child on at least one occasion when defendant
refused because he had plans to go “go-cart racing.” In addition, during this period defendant
would sometimes not return home at night because of disagreements with plaintiff, leaving
plaintiff and the child alone in the marital home. Moreover, defendant initially stopped living
with plaintiff as a result of domestic violence he committed against plaintiff for which he was
convicted. Defendant was not entitled to return to the marital home as a result of his probation
conditions. From April 2008 until November 2008, plaintiff, the child, and plaintiff’s mother,
Viorica Rusu, resided in the marital home without defendant. During that period, defendant only
saw the child on the weekends under the supervision of defendant’s parents. As a result,
defendant cannot claim that plaintiff altered the established custodial environment when she
moved to Grosse Pointe Woods with the child and Viorica. Indeed, at the time of plaintiff’s
move, defendant was not allowed to live in the marital home and had limited contact with the
child. The evidence in the record indicates that defendant adequately cared for the child, but that
the child’s primary living environment was with plaintiff. We cannot conclude that the evidence
clearly preponderates against the trial court’s finding that an established custodial environment
existed with plaintiff.
B
Defendant next argues that the trial court erred by awarding plaintiff sole legal and
physical custody. We disagree. In a child custody dispute, the trial court’s findings of fact,
including its findings regarding the statutory best interest factors, are reviewed under the great
weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in
the opposite direction. McIntosh, 282 Mich App at 474. In reviewing the trial court’s findings,
we defer to the trial court’s determinations of credibility. Id. We review the trial court’s legal
findings for clear error and reverse only when the trial court incorrectly chooses, interprets, or
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applies the law. MCL 722.28; McIntosh, 282 Mich App at 475. The trial court’s ultimate
decision concerning custody of the child is reviewed for an abuse of discretion. Id.
Child custody disputes must be resolved in the child’s best interests, according to the
factors set forth in § 3 of the Child Custody Act (CCA), MCL 722.23. Harvey v Harvey, 470
Mich 186, 191-192; 680 NW2d 835 (2004). Section 3 of the CCA sets out “the following factors
to be considered, evaluated, and determined by the court” to establish the best interests of a
child:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23.]
In determining the best interests of a child under the CCA, a court must consider each of
the statutory factors. Sinicropi v Mazurek, 273 Mich App 149, 182; 729 NW2d 256 (2006).
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However, the court need not comment on every matter in evidence or declare acceptance or
rejection of every proposition argued. LaFleche v Ybarra, 242 Mich App 692, 700; 619 NW2d
738 (2000); see also Baker v Baker, 411 Mich 567, 583; 309 NW2d 532 (1981).
Defendant contends that the trial court erred in finding that factor d (the stability of the
child’s environment) favored plaintiff. The trial court found with regard to factor d:
From the time he was born in 2006, the child has resided with both
parents. The child began residing solely with [p]laintiff when she moved out of
the marital home. Plaintiff removed all of her belongings from the home in
November 2008. Plaintiff, the child, and [p]laintiff’s mother moved out of the
marital home after [d]efendant made threats to [p]laintiff.
Defendant resides in Waterford. He sees the child every other weekend
from Thursday evenings until Saturday evening at the home of paternal
grandparents.
This factor favors plaintiff.
The record evidence in this case does not clearly preponderate against the findings of the
trial court with regard to factor d. The record indicates that the child always lived with plaintiff,
but ceased living with defendant when defendant engaged in domestic violence in April 2008.
Thereafter, the child and plaintiff moved out of the marital home in November 2008. The record
also establishes that even when the child lived with plaintiff and defendant at the marital home,
defendant often did not come home at night because of arguments he had with plaintiff. While it
is clear that defendant has been available for the child, plaintiff has primarily taken care of the
child and provided him with a stable environment since April 2008. Therefore, the evidence
supports the trial court’s finding that factor d favored plaintiff.
Defendant also contends that the trial court erred in finding that factor e (the permanence
of the proposed custodial home) favored plaintiff. With regard to factor e, a trial court must
consider the permanence, as a family unit, of the existing or proposed custodial home, not its
acceptability. Fletcher v Fletcher, 447 Mich 871, 884-885; 526 NW2d 889 (1994) (opinion of
BRICKLEY, J.). With regard to factor e, the trial court found:
From the time he was born in 2006, the child has resided with both
parents. Since [p]laintiff and the minor child left the marital home, the child
principally resides with [p]laintiff. Her household consists of herself, [the child],
and the maternal grandmother.
On alternate weekends, [the child] has supervised visits with [d]efendant
at the home of the paternal grandparents.
This factor favors plaintiff.
Defendant argues that the trial court erred by providing no findings of fact or conclusions of law
to support its determination that this factor favored plaintiff. Defendant further contends that the
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trial court ignored the fact that plaintiff’s mother does not speak English and does not know how
to drive.
Defendant has abandoned his challenge to the trial court’s findings concerning factor e by
failing to indicate how the trial court erred and why factor e should not favor plaintiff. An
appellant may not merely “announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.” Mitcham v
Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Here, defendant merely states that the trial
court erred, but does not explain how the court erred. At any rate, whether Viorica speaks
English has no bearing on the “child’s prospects for a stable family environment.” See Ireland v
Smith, 451 Mich 457, 465; 547 NW2d 686 (1996). We perceive no error with respect to the trial
court’s findings concerning factor e.
Defendant next contends that the trial court erred in finding that factor f (the moral fitness
of the parties) favored plaintiff. We disagree. A problem with alcohol consumption is the type
of conduct which bears on one’s ability to parent, and can be considered as relevant to the moral
fitness of a parent under factor f. McIntosh, 282 Mich App at 480. Other conduct relevant to
this factor includes verbal abuse, driving records, physical or sexual abuse, and other illegal or
offensive behavior; however, the conduct may only be considered if it affects how a party
functions as a parent. Berger, 277 Mich App at 712-713.
The trial court found that factor f favored plaintiff because of defendant’s abuse of
alcohol and prescription painkillers. Defendant argues that the trial court erred because it failed
to consider plaintiff’s borderline personality disorder and plaintiff’s other actions during the
course of the proceedings. Defendant further argues that the trial court failed to consider his
denial of alcohol and drug abuse. However, defendant has not shown that the evidence clearly
preponderates against the trial court’s findings. Whether plaintiff suffers from a personality
disorder is irrelevant to her moral fitness to be a parent. It does not amount to verbal abuse,
offensive conduct, or anything that would similarly make her “morally unfit.” Moreover,
whether plaintiff lied or was dishonest during the course of the divorce proceedings amounts a
question of credibility. As explained previously, we defer to the trial court’s findings with
regard to credibility. McIntosh, 282 Mich App at 474. In this case, the trial court found plaintiff
to be credible and persuasive. Moreover, there was a significant amount of evidence tending to
show that defendant regularly abused alcohol and prescription drugs during the course of his
marriage to plaintiff. We cannot conclude that the evidence clearly preponderates against the
trial court’s finding that factor f favored plaintiff.
Defendant further asserts that the trial court erred with regard to factor g (the mental
health of the parties). Again, we disagree. The evidence does not clearly preponderate against
the trial court’s finding that factor g favored neither plaintiff nor defendant. Defendant argues
that plaintiff suffers from a borderline personality disorder and has exhibited suicidal tendencies.
While there is some evidence in the record to support this assertion, defendant overlooks the
evidence in the record—in particular the findings of Dr. Robert Edward Erard—that defendant
suffers from alcohol dependence and narcissistic personality disorder, which result in defendant
having limited compassion for others. Dr. Erard also made note of defendant’s history of violent
behavior and his prescription drug abuse. Given the evidence in the record tending to show that
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both plaintiff and defendant may suffer from mental health issues, we cannot say that the
evidence clearly preponderates against the trial court’s finding that factor g did not favor either
party.
Defendant also questions the trial court’s findings with regard to factor h (the home,
school, and community record of the child). Defendant argues that the trial court should not
have found this factor to be irrelevant. However, it is well settled that in determining the best
interests of a child, a court need not give each factor equal weight. McCain v McCain, 229 Mich
App 123, 131; 580 NW2d 485 (1998). The trial court determined that factor h was irrelevant
given the child’s very young age. We cannot conclude that this decision amounted to clear legal
error.
With regard to factor j (the willingness of each party to facilitate and encourage a
relationship between the child and the other parent), defendant again claims that the trial court
erred in finding that the factor favored plaintiff. The trial court found that plaintiff sought
defendant’s help during the marriage with the child, but that defendant was indifferent. It further
found that defendant’s parents interfered with plaintiff’s relationship with the child by screaming
at plaintiff during the exchanges. Although the court recognized one instance when plaintiff
refused to allow defendant to visit the child, it concluded that factor j favored plaintiff on the
whole. The evidence does not clearly preponderate against this finding. Defendant argues that
he informed plaintiff that he would take the child at any time and that he has never refused to
help care for the child. Defendant also contends that, once plaintiff left the marital home, she
refused to encourage any type of relationship between defendant and the child. However,
plaintiff testified that she repeatedly asked defendant to take care of the child while they were
married and he refused. It is clear that plaintiff and defendant’s parents yelled at each other
during exchanges. Moreover, there was a no contact order in place as a result of the domestic
violence committed by defendant. Ultimately, this issue involved the credibility of the parties
and the trial court found plaintiff to be more credible with respect to her testimony pertaining to
factor j. Given our deference to the trial court’s findings regarding credibility, we cannot
conclude that the record evidence clearly preponderates against the court’s findings with respect
to factor j.
Defendant asserts that the trial court erred in finding that factor k (domestic violence)
favored plaintiff. We disagree. The trial court found that this factor favored plaintiff because of
plaintiff’s testimony that defendant verbally and physically abused her, as well as plaintiff’s
descriptions of several incidents of abuse. Moreover, the trial court credited Viorica’s testimony
that she witnessed defendant physically abusing plaintiff and noted that defendant was convicted
of domestic violence. Defendant argues that he was only convicted of domestic violence
because of plaintiff’s lies and that he did not physically abuse plaintiff. Nonetheless, we
conclude that trial court did not err in finding that factor k favored plaintiff. Despite defendant’s
arguments to the contrary, the fact remains that defendant was convicted of domestic violence.
On the basis of this conviction alone, we cannot say that the evidence clearly preponderates
against the trial court’s findings. Moreover, the trial court found that plaintiff’s accusations were
credible even though defendant denied them. We defer to those credibility determinations. The
trial court did not err in finding that factor k favored plaintiff.
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Defendant also contends that the trial court erred with regard to factor l (any other
relevant factor considered by the trial court) by failing to consider that he wanted to settle the
case based on the Friend of the Court recommendation.1 However, the trial court addressed the
Friend of the Court recommendation under factor l. The trial court indicated that defendant was
willing to adopt the Friend of the Court recommendation though it noted that neither party made
a motion to adopt the findings of the Friend of the Court. As a result, defendant’s arguments
with regard to factor l are without merit.
Finally, defendant maintains that the trial court erred by failing to state the reasons why
joint custody was not in the child’s best interests and by failing to grant joint custody. Again, we
disagree. If a parent requests joint custody of a child in a divorce, the trial court is required to
consider whether an award of joint custody would be in the child’s best interests, and must state
on the record the reasons for denying joint custody. MCL 722.26a(1); Mixon v Mixon, 237 Mich
App 159, 163; 602 NW2d 406 (1999). When a party seeks joint custody of a child, the trial court
must consider whether the parents will be able to cooperate and generally agree concerning
important decisions affecting the welfare of the child. MCL 722.26a(1)(b); McIntosh, 282 Mich
App at 476. For the purpose of joint custody, medical, educational, and religious decisions are
important decisions affecting the welfare of a child. Pierron v Pierron, 282 Mich App 222, 246247; 765 NW2d 345 (2009) (Pierron I); Shulick v Richards, 273 Mich App 320, 327; 729 NW2d
533 (2006); Fisher v Fisher, 118 Mich App 227, 233; 324 NW2d 582 (1982). A trial court may
properly deny an award of joint custody and grant sole custody to one parent when the parties
cannot agree on such important decisions affecting the welfare of the child. Fisher, 118 Mich
App 233.
The trial court made explicit factual findings with regard to the issue of joint custody.
Citing the best-interest factors discussed previously, the fact that the parties had difficulty
communicating with one another, and the fact that the parties had differences of opinion on how
best to raise the child, the trial court found that joint custody was not in the child’s best interests.
The court went on to determine, on the basis of the same considerations, that granting sole legal
and physical custody to plaintiff was in the child’s best interests. The trial court did not abuse its
discretion by denying joint legal and physical custody and awarding sole legal and physical
custody to plaintiff. As noted earlier, the trial court’s factual findings concerning the statutory
best-interest factors were supported by the great weight of the evidence. Moreover, the record is
replete with evidence that plaintiff and defendant had difficulty communicating regarding the
child’s welfare. For a long period of time, this communication difficulty resulted from a nocontact arising out of defendant’s domestic violence conviction. Even after the no-contact order
was lifted, however, the parties were unwilling to cooperate and plaintiff did not trust defendant.
Moreover, the record indicates that the parties disagreed about what was in the child’s best
interests. For example, while plaintiff wanted the child to be vaccinated, defendant stated that he
generally opposed vaccinations. The record also indicates that defendant was unwilling to take
1
Defendant mistakenly indentifies factor l as “factor i” in his brief on appeal. Factor i, which
concerns “[t]he reasonable preference of the child,” is not at issue in this appeal.
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the child to the doctor on at least one occasion. And although plaintiff stated a preference that
the child regularly attend orthodox church services, defendant did not indicate a willingness to
participate in the child’s religious education.2 The trial court did not abuse its discretion by
awarding sole legal and physical custody of the child to plaintiff. See Fisher, 118 Mich App at
233.
II
Plaintiff argues on cross-appeal that the trial court erred in its consideration and
application of several of the statutory best-interest factors. She also argues that the trial court
erred by increasing defendant’s parenting time from two nights a week to three nights a week.
A
Plaintiff first contends that the trial court erred by finding that factor a (the love, affection
and other emotional ties between the parties and the child) favored neither party when it actually
favored her. We disagree. The trial court found that “[b]oth parents express a strong emotional
bond with [the child.]” Plaintiff argues that defendant could not establish that he had a strong
emotional bond with the child since he often avoided the child during the marriage and would
not play with the child or buy the child gifts. However, the record indicates that defendant and
the child had a strong emotional bond. Defendant testified that he loved the child and that the
child loved him. He described seeing the child for the first time during his weekly visits. He
told the trial court that when he picked the child up, the child smiled and laid his head on
defendant’s shoulder and would not let go of defendant for several minutes. He also testified
that at the end of the visits when he told the child that he would be going back to his mother, the
child would often become upset and would tell defendant that he did not want to leave.
Defendant’s father similarly testified that the child loved defendant. The evidence in the record
demonstrates an emotional bond between the child and defendant. The trial court correctly
determined that factor a favored neither party.
Plaintiff also contends that the trial court erred by finding that factor b (the capacity and
disposition of the parties to give the child love, affection and guidance) favored neither party.
We disagree. On the basis of the record evidence, the trial court concluded that both parents had
the capacity to love and care for the child. Plaintiff argues that defendant’s capacity to give the
child love, affection, and guidance was negatively impacted by his substance abuse problems,
anger management issues, and lack of attention to the child. Thus, plaintiff contends that this
factor actually favored her. We cannot agree, and conclude that the trial court’s finding
concerning this factor was not against the great weight of the evidence. As the trial court
correctly determined, both parties clearly had the capacity to love and care for the child.
2
We note that there is no evidence in the record to support defendant’s concerns that plaintiff
might move with the child to Romania. Furthermore, even if there had been evidence to support
these concerns, the trial court addressed defendant’s concerns by prohibiting the parties from
moving out of state without prior court approval.
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Plaintiff next asserts that the trial court erred by finding that factor c (the capacity and
disposition of the parties to provide the child with food, clothing, medical care or other remedial
care) favored neither party. The trial court found that plaintiff and defendant were both
employed—plaintiff as a medical resident and defendant as a manager for his father’s company.
The trial court described the parties’ differences of opinion with regard to the child’s medical
care, stating that “[d]efendant did not want [p]laintiff to get the child vaccinated and objected to
all medication.” Nevertheless, the trial court still concluded that “although the parties differ as to
how to provide for the child, both parties are able to provide for the material needs of the child.”
(Emphasis added.) Despite plaintiff’s insistence that only she is able to properly care for the
child, the trial court’s findings on this factor were not erroneous. The record indicates that
defendant has the capacity and disposition to take care of the child’s material needs. Defendant
testified that he always made sure the child was taken care of, that the child had a house to live
in, clothes to wear, and food to eat. Defendant earned $64,000 a year at his job and denied ever
failing to provide for the child. Defendant’s father testified that, during visits, defendant took
proper care of the child. There was also evidence that defendant spends time with the child,
cooks for him on occasion, changes his diapers, reads him books, and sings to him. In sum, the
record establishes that defendant has the capacity to take care of the child’s material needs, and
the trial court therefore did not err by determining that factor c favored neither party.
Plaintiff also contends that the trial court erred by finding that factor h (the home, school,
and community record of the child) was irrelevant. However, as noted, a court need not give
each factor equal weight. McCain, 229 Mich App at 131. The trial court determined that factor
h was irrelevant given the child’s young age. As stated earlier, this determination did not
constitute clear legal error.
Plaintiff further asserts that the trial court failed to adequately weigh factors f, j, and k. In
considering the statutory best-interest factors, the court may give more weight to certain factors
than to others. Id. However, each of the factors should be examined and weighed as appropriate
to determining the child’s best interests. Id.
Plaintiff maintains that the trial court should have given more weight to factor f (the
moral fitness of the parties). According to plaintiff, factor f alone should have prevented the trial
court from increasing defendant’s parenting time from two days a week to three days a week.
We fully acknowledge that the trial court found that defendant was often under the influence of
alcohol and abused prescription painkillers. However, plaintiff has not explained why this factor
should outweigh the others or how the trial court abused its discretion by failing to give this
factor more weight.
Similarly, plaintiff maintains that the trial court erred by failing to find that factor j (the
willingness of each party to facilitate and encourage a relationship between the child and the
other parent), alone, weighed against increasing defendant’s parenting time. The trial court
found that this factor favored plaintiff because of defendant’s indifference to the child during the
marriage and the actions of defendant’s parents when picking up and dropping off the child with
plaintiff. But plaintiff argues that the trial court should have gone even further by considering
defendant’s attempts to alienate the child from plaintiff. The problem with plaintiff’s argument
in this regard is that the trial court had already determined that factor j favored plaintiff, and she
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has not explained why factor j should outweigh the other factors, especially given the fact that
she was awarded sole legal and physical custody of the child.
Finally, plaintiff contends that the trial court should have given more weight to factor k
(domestic violence). Plaintiff contends that, given the violence defendant committed against her,
the trial court should not have increased defendant’s parenting time. Again, plaintiff has not
explained why this factor should outweigh the others, particularly in light of the trial court’s
award of sole legal and physical custody to her.
B
Plaintiff also argues that the trial court abused its discretion by ultimately increasing
defendant’s parenting time from two days a week to three days a week. We disagree. Parenting
time must be granted in accordance with the best interests of the child. MCL 722.27a(1); Brown
v Loveman, 260 Mich App 576, 595; 680 NW2d 432 (2004). “It is presumed to be in the best
interests of [the] child for the child to have a strong relationship with both of his or her parents.”
MCL 722.27a(1); see also Pickering v Pickering, 268 Mich App 1, 5; 706 NW2d 835 (2005).
Parenting time must be granted in a frequency, duration and type reasonably calculated to
promote strong parent-child relationships. Brown, 260 Mich App at 595.
With regard to parenting time, the trial court found:
Based on the age of the minor child and the custodial arrangement stated
above, the court adopts, in part, the parenting time recommendation of the Friend
of the Court Family Counselor . . . . Defendant shall have weekly unsupervised
parenting time with [the child] from Wednesday at 4 pm until Saturday at 4 pm,
which result[s] in 170 overnights. Defendant shall not consume alcohol or
prescription medication during his parent[ing] time unless under the specific care
of a doctor.
***
In order to preserve the parenting time of [d]efendant with the minor child
and in light of [p]laintiff’s prior threats to find employment out of state, the
parties are prohibited from moving from their current residences without
permission of the court. Additionally, based on the testimony of [d]efendant
concerning his overnight female paramour during parenting time with [the child],
no unrelated members of the opposite sex are allowed to stay overnight with
either party while the parties have [the child] in their care.
Although the trial court found that several of the best-interest factors favored plaintiff, we
cannot conclude that the trial court abused its discretion by increasing defendant’s parenting time
with the child from two nights a week to three nights a week. Given the trial court’s award of
sole legal and physical custody of the child to plaintiff, it was certainly within the range of
principled outcomes to moderately increase defendant’s parenting time so as to ensure that the
child maintains a strong relationship with his father. See Shulick, 273 Mich App at 333; see also
MCL 722.27a(1). We perceive no palpable abuse of discretion in the trial court’s ultimate
decision concerning defendant’s parenting time. MCL 722.28.
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Plaintiff asserts that the increase in defendant’s parenting time amounts to a modification
of the established custodial environment and that there was not clear and convincing evidence to
support this modification. Under the CCA, if a modification in custody or parenting time would
“change the established custodial environment of a child,” it must be established by clear and
convincing evidence that the modification is in the child’s best interests. MCL 722.27(1)(c);
Sinicropi, 273 Mich App at 178. In this case, plaintiff has not shown that the increase in
defendant’s parenting time from two nights a week to three nights a week will alter the child’s
established custodial environment. The child will continue to live primarily with plaintiff and
his maternal grandmother, and will continue to spend most of his time with them. He will
merely have one more night a week with defendant. This minor alteration in defendant’s
parenting-time schedule will not “change the established custodial environment of [the] child”
within the meaning of MCL 722.27(1)(c). See Pierron I, 282 Mich App at 249-250.
Affirmed. No taxable costs under MCR 7.219, neither party having prevailed in full.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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