Hayes v. Hayes

Decision Date20 March 1995
Docket NumberDocket No. 171914
Citation532 N.W.2d 190,209 Mich.App. 385
PartiesCatherine Lynn HAYES, a/k/a Catherine Mockeridge, Plaintiff-Appellant, v. Michael Daniel HAYES, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Oakland Livingston Legal Aid by Paula M. Zimmer, Pontiac, for plaintiff.

James N. Renfroe, Bingham Farms, for defendant.

Before FITZGERALD, P.J., and TAYLOR and MARKMAN, JJ.

TAYLOR, Judge.

Plaintiff appeals as of right the trial court's order awarding physical custody of the parties' three minor children, Ronald Christopher, Kevin Michael, and Cody James, to defendant. We affirm.

This postjudgment proceeding followed a consent judgment of divorce granted on October 14, 1987, which awarded both legal and physical custody of the couple's three minor children to plaintiff. Defendant filed an emergency petition for protection of the children and was awarded temporary physical custody on July 30, 1992. The filing of the emergency petition was prompted by concerns that plaintiff's live-in boyfriend had sexually abused the children. On December 23, 1992, the court amended the order, granting joint physical custody to both parties with liberal visitation to each parent. After an evidentiary hearing, the friend of the court referee recommended granting plaintiff physical custody and the circuit court adopted this recommendation in an order dated June 29, 1993. Defendant sought review de novo. Following an evidentiary hearing, the court reversed its June 29, 1993, order and awarded physical custody to defendant in a written opinion and order dated December 30, 1993.

Plaintiff argues that the trial court erred in finding that the June 30, 1992, temporary protective order granting defendant custody of the three minor children destroyed the established custodial environment plaintiff had with the children. As a result, plaintiff argues, the trial court improperly applied the preponderance of evidence standard, rather than the more stringent clear and convincing evidence standard in determining whether a change in custody was warranted. We disagree.

While clear and convincing evidence must be presented to change custody if an established custodial environment exists, if no custodial environment exists, the trial court may modify a custody order if the petitioning party can convince the court by a preponderance of evidence that it should grant a custody change. Mann v. Mann, 190 Mich.App. 526, 531, 476 N.W.2d 439 (1991). Thus, the first step in considering a petition to change custody is to determine whether an established custodial environment exists; it is only then that the court can determine what burden of proof must be applied. Wealton v. Wealton, 120 Mich.App. 406, 410, 327 N.W.2d 493 (1982).

Whether an established custodial environment exists is a question of fact for the trial court to resolve on the basis of statutory criteria. Blaskowski v. Blaskowski, 115 Mich.App. 1, 6, 320 N.W.2d 268 (1982). The trial court's custody order is irrelevant to this analysis. Id. Rather, 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. Schwiesow v. Schwiesow, 159 Mich.App. 548, 557, 406 N.W.2d 878 (1987).

Where there are repeated changes in physical custody and there is 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 N.W.2d 602 (1993). In light of the changes in physical custody and uncertainty created by the impending custody trial, any previously established custodial environment with plaintiff was destroyed. Id. Thus, the trial court did not err in concluding that there was no established custodial environment. Accordingly, the change in custody was justified if supported by a preponderance of the evidence. Mann, supra.

We find no merit in plaintiff's argument that the trial court's finding of no custodial environment was erroneous because the court originally granted defendant temporary custody without first conducting a...

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15 cases
  • Heltzel v. Heltzel
    • United States
    • Court of Appeal of Michigan — District of US
    • 10 Enero 2002
    ...custodial environment does not depend on the manner in which such an environment became established. See Hayes v. Hayes, 209 Mich.App. 385, 388, 532 N.W.2d 190 (1995) ("In determining whether an established custodial environment exists, it makes no difference whether the environment was cre......
  • Butler v. Simmons-Butler
    • United States
    • Court of Appeal of Michigan — District of US
    • 18 Noviembre 2014
    ...court's finding that no established custodial environment existed between the children and either parent. See Hayes v. Hayes, 209 Mich.App. 385, 387–389, 532 N.W.2d 190 (1995) ; Bowers v. Bowers, 198 Mich.App. 320, 323–327, 497 N.W.2d 602 (1993). The trial court then properly went on to det......
  • Berger v. Berger
    • United States
    • Court of Appeal of Michigan — District of US
    • 31 Enero 2008
    ...as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order. Hayes v. Hayes, 209 Mich. App. 385, 388, 532 N.W.2d 190 (1995). An established custodial environment may exist with both parents where a child looks to both the mother and the fa......
  • Lieberman v. Orr
    • United States
    • Court of Appeal of Michigan — District of US
    • 7 Marzo 2017
    ...the focus is on the child's circumstances, not on the order or orders that created those circumstances. Hayes v. Hayes , 209 Mich.App. 385, 388, 532 N.W.2d 190 (1995). Thus, "[t]he trial court's custody order is irrelevant to this analysis." Id .A trial court may only amend a previous judgm......
  • Request a trial to view additional results

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