ANGELA SUE BEACH V ERIC GILVONN HYMAN (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
ANGELA SUE BEACH,
UNPUBLISHED
June 30, 2011
Plaintiff-Appellee,
v
No. 302626
Genesee Circuit Court
Family Division
LC No. 07-272720-DS
ERIC GILVONN HYMAN,
Defendant-Appellant.
Before: FITZGERALD, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order granting legal and physical custody of
his minor daughter, A., to plaintiff, the child’s mother. We agree with defendant that further
findings were necessary before the trial court could properly alter the existing custody
arrangement. Accordingly, we reverse and remand for further proceedings.
Our review of custody disputes is governed by the Child Custody Act (CCA), MCL
722.21 et seq. MCL 722.26(1); MCL 722.28; Pierron v Pierron, 486 Mich 81, 85; 782 NW2d
480 (2010). Under the CCA, “all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28;
Pierron, 486 Mich at 85. Here, the trial court erred as a matter of law by ordering a change in
the parties’ custody arrangement without first determining whether A. had an established
custodial environment with either or both of her parents and, in light of this determination,
whether the new arrangement was in her best interests.
The CCA 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. . . . [MCL 722.27(1)(c).]
A child may have an established custodial environment with one or both parents. See Foskett v
Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001). It is also possible for a child to have no
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established custodial environment. See Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d 190
(1995). If an established custodial environment exists, a court “shall not modify or amend its
previous judgments or orders or issue a new order so as to change the established custodial
environment of a child unless there is presented clear and convincing evidence that it is in the
best interest of the child.” MCL 722.27(1)(c); Pierron, 486 Mich at 86. Thus, if a “proposed
change would modify the established custodial environment of the child, then the burden is on
the parent proposing the change to establish, by clear and convincing evidence, that the change is
in the child’s best interests” according to the best interests factors listed in MCL 722.23.
Pierron, 486 Mich at 90, 92. The clear and convincing standard applies equally if the child has
an established custodial environment with both parents. Under such circumstances, “neither . . .
established custodial environment may be disrupted except on a showing, by clear and
convincing evidence, that such a disruption is in the child[]’s best interests.” Foskett, 247 Mich
App at 8 (emphasis in original). When no established custodial environment exists—or if a
proposed change will not affect an established custodial environment—“the burden is on the
parent proposing the change to establish, by a preponderance of the evidence, that the change is
in the child’s best interests.” Pierron, 486 Mich at 93; see Hayes, 209 Mich App at 388.
Court orders regarding custody, alone, do not of themselves establish custodial
environments. “In determining whether an established custodial environment exists, it makes no
difference whether that environment was created by a court order, without a court order, in
violation of a court order, or by a court order that was subsequently reversed.” Hayes, 209 Mich
App at 388. Rather, the issue requires an “intense factual inquiry,” Foskett, 247 Mich App at 6,
and because a “trial court’s custody order is irrelevant to this analysis . . . the focus is on the
circumstances surrounding the care of the children in the time preceding trial, not the reasons
behind the existence of a custodial environment,” Hayes, 209 Mich App at 388. Accordingly,
prior errors by the court—including, for example, by failing to conduct a complete evidentiary
hearing before issuing the temporary custody order—do “not affect the trial court’s analysis of
whether an established custodial environment existed.” Id. at 388-389.
Here, the trial court erred by basing its custody determination on potential past mistakes
and events during the ongoing custody dispute, such as coercion of the in propria persona
plaintiff and the effective transfer of primary custody from plaintiff to defendant by way of
stipulated temporary orders that were entered without the benefit of a best interests hearing.
While these issues are troubling—and while the court correctly stressed that any prior,
significant changes to custody or parenting time generally should have been accompanied by
clear consideration of the child’s best interests—these issues were not dispositive at the time of
the January 28, 2011, hearing. Rather, the inquiry should have focused “on the circumstances
surrounding the care of the child[] in the time preceding trial, not the reasons behind the
existence of a custodial environment.” Id. at 388 (emphasis added). Therefore, the court erred
by restoring the custody arrangement to comply with the original, July 13, 2007, custody order
merely on the basis of potential errors during the intervening proceedings and the arguably
temporary nature of the intervening orders. Instead, the court should have considered A.’s
custodial relationship to the parties and best interests at the time of the January 2011 hearing.
Accordingly, on remand, the trial court should first determine whether A. has an
established custodial environment with one, both, or neither of her parents. She could
conceivably have such an environment with neither parent because, in some cases, “where there
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are repeated changes in physical custody and uncertainty created by an upcoming custody trial, a
previously established custodial environment is destroyed and the establishment of a new one is
precluded.” Bowers v Bowers, 198 Mich App 320, 326; 497 NW2d 602 (1993); see Hayes, 209
Mich App at 388. If the court concludes that one or more established custodial environments
exist, it shall not alter the custody arrangement so as to disrupt the established custodial
environment(s) unless there is presented clear and convincing evidence that it is in A.’s best
interests. MCL 722.27(1)(c); Pierron, 486 Mich at 86; Foskett, 247 Mich App at 8. If the court
concludes that no established custodial environment exists, it must consider whether a new
arrangement is in A.’s best interests according to a preponderance of the evidence. See Pierron,
486 Mich at 93; Hayes, 209 Mich App at 388. In rendering its findings, the court may rely on
the prior record and prior findings or recommendations of the referee to the extent such reliance
is relevant and permitted under MCL 552.507(6).
Reversed and remanded. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ David H. Sawyer
/s/ Jane M. Beckering
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