CRAWFORD COUNTY CHILD CUSTODY (810) 235-1970

Facts Considered in a Crawford County Child Custody case.

1. Prior Custody Orders

The mere existence of a temporary custody order does not create an established custodial environment. The court must examine the underlying facts and apply the statutory definition. See Jack v Jack, 239 Mich App 668, 610 NW2d 231 (2000); Baker v Baker, 411 Mich 567, 309 NW2d 532 (1981) (two temporary custody orders did not by themselves establish custodial environment). Even if a custody order is labeled permanent, the trial court must still determine if there is an established custodial environment by looking to the actual circumstances of each case. Wealton v Wealton, 120 Mich App 406, 327 NW2d 493 (1982).
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While the parties may stipulate to a temporary custody arrangement during the pendency of a divorce and the court may enter a temporary order pursuant to that stipulation, the resulting order is not a “previous” judgment or order for the purposes of MCL 722.27(1)(c).

Therefore, a movant for a different custody arrangement is not obligated to show by clear and convincing evidence that there is proper cause or a change of circumstances justifying the change and that the modification would be in the best interests of the child. While MCL 722.27(1)(c) provides that a previous judgment or order may not be modified unless there is a showing of proper cause and a change of circumstances, a temporary order entered without an evidentiary hearing and based solely on the stipulation of the parties is not a “previous” judgment or order. Modification of such an order is governed by that portion of MCL 722.27(1)(c) governing a new order. To create a new order and modify an established custodial environment, the movant is not required to show proper cause or a change of circumstances but must present clear and convincing evidence that it is in the best interests of the child to modify the established custodial environment. Thompson v Thompson, 261 Mich App 353, 683 NW2d 250 (2004). see http://www.dumpmyspouse.com

The facts regarding prior custody orders were examined in the following circumstances to determine whether there was an established custodial environment:
Repeated changes in physical custody and the uncertainty of the situation because of the upcoming custody trial precluded the establishment of a custodial environment. Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993).

Temporary custody of the children for approximately 15 months did not establish a custodial environment. Moser v Moser, 184 Mich App 111, 457 NW2d 70 (1990); see also Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986) (two temporary orders over six months were not “appreciable” period of time to establish custodial environment); Breas v Breas, 149 Mich App 103, 385 NW2d 743 (1986) (that custody lasted nine months did not give rise to established custodial environment given instability of home and that child looked to other parent for guidance and discipline); but see De Vries v De Vries, 163 Mich App 266, 413 NW2d 764 (1987) (established custodial environment was established during temporary order that lasted ten months).

An established custodial environment was not found where, although temporary custody was given to the mother, the father actively pursued a relationship with the children. Curless v Curless, 137 Mich App 673, 357 NW2d 921 (1984); see also Wealton v Wealton, 120 Mich App 406, 327 NW2d 493 (1982) (child had spent more of past year with noncustodial parent than with custodial parent).

That one parent had been given temporary custody by an invalid order should not have been the basis for establishing a custodial environment and modifying custody. Pluta v Pluta, 165 Mich App 55, 418 NW2d 400 (1987).

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