Where a trial court’s findings regarding a parenting-time provision in a judgment of divorce were reversed by the Court of Appeals, the Court of Appeals erred, as (1) the question whether a parenting-time provision modifies a child’s established custodial environment is to be answered on the basis of the circumstances that exist at the time the trial court renders its custody decision and (2) appellate courts have a statutory obligation under MCL 722.28 to affirm trial court determinations unless they are based on findings of fact against the great weight of the evidence, a palpable abuse of discretion or a clear legal error on a major issue.
“At issue in this case is whether the parenting-time provision incorporated into the judgment of divorce modified any established custodial environment or environments the parties’ children had with their parents. We conclude that the Court of Appeals erred by reversing the trial court because the facts do not clearly preponderate against the trial court’s findings that the parenting-time provision in the judgment of divorce would not modify the children’s established custodial environments with both parents. Two points bear emphasis: (1) the question whether a parenting-time provision modifies a child’s established custodial environment is to be answered on the basis of the circumstances that exist at the time the trial court renders its custody decision; and (2) appellate courts have a statutory obligation under MCL 722.28 to affirm trial court determinations unless they are based on findings of fact against the great weight of the evidence, a palpable abuse of discretion, or a clear legal error on a major issue. We reverse Part I(C) of the judgment of the Court of Appeals and remand this case to the trial court for proceedings not inconsistent with this opinion.
“The Court of Appeals believed the children had established custodial environments with both parents because prior to defendant’s departure, the parties and children all lived together as a family and both parents cared for the children. But in reaching this conclusion, the Court of Appeals held that the proper focus of its inquiry was ‘the child rearing situation for the girls before defendant’s departure.’ We disagree with the Court of Appeals’ emphasis on the preseparation child-rearing situation on the facts of this case. Instead, in cases like this one, where the preseparation custodial environment no longer exists, the relevant point in time for purposes of determining whether an established custodial environment exists is at the time the trial court makes its custody determination. A judgment or order cannot change an established custodial environment that no longer exists.
“To summarize, the circumstances of the parties at the time of separation or prior to separation might be relevant to determining whether an established custodial environment exists at the time the judgment of divorce is issued. For instance, in determining whether a custodial environment has been established over an appreciable time period, the trial court will often need to compare and contrast the lives of the children before separation and afterward. But the dispositive inquiry is not whether an established custodial environment existed prior to separation; rather, it is whether such an environment continues to exist, or a new one exists, at the time of the trial court’s custody determination. The preseparation circumstances are only relevant to the extent that they continue to exist or are probative of whether a new established custodial environment exists at the time the trial court is rendering its decisionin this case, when it issued the custody order.
“Here, the trial court found ‘that an established custodial environment existed and continues to exist with both parties.’ The trial court properly made its ultimate determination on the basis of the circumstances that existed at the time of its decision, although the circumstances of the family prior to the separation were relevant as they often will be to that determination. Neither party disputes the trial court’s finding on this point.
“The Court of Appeals erred to the extent that it reversed the trial court. First, we clarify that the question whether a parenting-time provision modifies a child’s established custodial environment for purposes of MCL 722.27(1)(c) is to be answered on the basis of the circumstances that exist at the time the trial court renders its custody decision here, when it issued the custody order. Second, we reiterate that appellate courts have a statutory obligation under MCL 722.28 to affirm trial court determinations in child-custody cases unless they are based on findings of fact against the great weight of the evidence, a palpable abuse of discretion, or a clear legal error on a major issue. We hold that the Court of Appeals failed to give proper deference to the trial court’s findings of fact, and the facts here do not clearly preponderate against the trial court’s factual findings that the parenting time provision in the judgment of divorce did not alter the children’s established custodial environments. For these reasons, we reverse Part I(C) of the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with this opinion.”
Sabatine v. Sabatine; MiLW 06-108093, 22 pages; Michigan Supreme Court; Viviano, J., joined by Clement, C.J., Zahra, J., Bernstein, J., Cavanagh, J., Welch, J., Bolden, J.; Zahra, J., concurring; on appeal from the Court of Appeals; Jordan M. Ahlers for appellant; Anne Argiroff for appellee.
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