Heid v. Aaasulewski, Docket No. 177684
| Decision Date | 03 April 1995 |
| Docket Number | Docket No. 177684 |
| Citation | 209 Mich.App. 587,532 N.W.2d 205 |
| Parties | Katherine Elaine HEID, Plaintiff-Appellee, v. Michael E. AAASULEWSKI, Defendant-Appellant (After Remand). |
| Court | Court of Appeal of Michigan — District of US |
Gerald M. Soborowski, Westland, for defendant.
Before CORRIGAN, P.J., and O'CONNELL and ALLEN, * JJ.
AFTER REMAND
In this child custody case, defendant appeals as of right the circuit court's June 1994 opinion on remand, clarifying its March 1993 order changing physical custody of the parties' minor son, Eugene, from defendant father to joint physical custody in both parties. This Court, in an unpublished memorandum opinion, decided February 16, 1994 (Docket No. 162946), had directed the circuit court to determine whether an established custodial environment had been created in defendant father. On remand, the court found an established custodial environment with defendant father and found the parties nearly equal on the standardized criteria of M.C.L. § 722.23; M.S.A. § 25.312(3). Nonetheless, it held that plaintiff had met her burden of proof by clear and convincing evidence that Eugene's best interests warranted the change in custody to joint physical custody. The true impact of the order was to increase the child's visitation with defendant mother by thirty-six hours in each two-week period.
Having reviewed the entire record, we affirm.
Plaintiff and defendant were married in 1987. Their only child, Eugene, was born on February 25, 1988. The parties lived together until May 1989. A default judgment of divorce was entered on December 28, 1989, awarding joint legal custody to the parties and sole physical custody to plaintiff mother.
Six months later, on June 1, 1990, defendant father filed an emergency petition to change custody, alleging that Eugene was in danger of serious physical harm as a result of several alleged incidents of physical abuse that occurred while Eugene was in the custody of plaintiff mother or her boyfriend. Pending an investigation by the Family Counselling Service, the circuit court granted temporary physical custody to defendant father and allowed visitation with plaintiff mother on alternate Wednesdays through Fridays under the maternal grandmother's supervision. At about the same time, plaintiff mother sought to regain custody, alleging that Eugene had suffered a black eye while in the temporary physical custody of defendant father.
Subsequent investigation revealed that several independent reports of suspected child abuse had been made in early 1990. Eugene had suffered a broken leg and various bruises on his body. The mother's live-in boyfriend was suspected. However, no charges were pressed against plaintiff mother or her boyfriend.
From September 1990 through April 1991, plaintiff moved to Arizona where she resided with her boyfriend for seven months, during which time plaintiff mother did not visit the child. Plaintiff then apparently severed her relationship with her boyfriend.
In May 1991, plaintiff returned to Michigan and the circuit court ordered defendant to continue temporary physical custody and also ordered psychiatric evaluations and parenting classes.
Hawthorn Center staff interviewed the parties and their son. After a lengthy delay, the Hawthorn Center reported on November 15, 1991. The report noted that the original referral had occurred fourteen months earlier and that the issue of physical abuse or the mother's residence were no longer of great concern. Neither parent had any concern about, much less evidence of, physical abuse and plaintiff mother had no plans to move from Michigan. The report noted defendant father's establishment of a primary residence and his fitness as a father. The report also noted, in part:
Ms. Katherine Heid has expressed her willingness to provide more direct physical needs for Eugene. Her demonstration of love, affection and emotional support of Eugene is evident in his strong attachment to her. Though she may be capable of providing materially for Eugene, she will need financial assistance to do so. Her moral fitness, physical and emotional health are all without problems....
* * * * * *
With regards to physical custody, we view Mr. AAASulewski as a primary choice for being awarded permanent physical custody by virtue of his record, demonstrated these past 16 months, of providing stability and consistency for Gene which has facilitated a foundation for growth for this child. The child has flourished and would benefit from maintaining this environment.
It is clear, however that Gene is strongly tied to his mother and being of a tender age would naturally benefit from quality contact with her. We would present to the court a request for extending the mother's visits with Gene by increasing the total consecutive days he visits every other week from Friday to Monday to possibly Tuesday.
Defendant father then moved to adopt the recommendation of the Hawthorn Center. On February 5, 1992, the court referred the case to the friend of the court, referee division, for an evidentiary hearing. The referee conducted an evidentiary hearing at which the Hawthorn Center staff psychiatrist and the protective services worker both testified. On April 27, 1992, the referee rejected the Hawthorn Center's ultimate recommendation to award physical custody solely to the father. Instead, he recommended joint legal and joint physical custody.
The referee could not conclude that Eugene's bruises had been inflicted by an adult, or even represented negligence by the parties. (The Department of Social Services had noted that Eugene suffered a black eye while in his father's custody.) He found that plaintiff mother's culpability was speculative and that her relationship with the boyfriend had been severed for some time. The referee also concluded that the mother's absence from the state for seven months had not allowed the development of an established custodial environment in defendant. Accordingly, the referee recommended shared physical custody.
Defendant father then sought review de novo. The court, upon the agreement of the parties, reviewed the transcripts and exhibits and affirmed the referee's findings. However, the court made no finding whether an established custodial environment existed, nor did it state the burden of proof it had applied. In analyzing the best interest factors pursuant to M.C.L. § 722.23; M.S.A. § 25.312(3), the court found the parties equal on statutory factors a, b, e, f, and g. The court apparently found the parties equal on factor j, although it noted that defendant father had demonstrated his awareness of the importance of maintaining the relationship with plaintiff mother. The court found factors c and d favored defendant father and that the remaining factors were inapplicable.
The circuit court also found that the suspected child abuse that had led to the temporary placement of the child with the father was no longer an operative factor. Two and one-half years had elapsed since the allegations of abuse; no charges had been filed, and reasonable explanations existed for Eugene's broken leg and bruises. Finding that the statutory factors did not significantly favor either party, the court ordered joint legal and joint physical custody in both parents.
Defendant father appealed and this Court ordered a remand. On remand, the circuit court found, in July 1994, that an established custodial environment existed with defendant father because he had physical custody of Eugene from June 1990 through 1993. However, the court also found that plaintiff mother had met her burden of proof by clear and convincing evidence to justify the change to joint physical custody:
This court further finds that the Plaintiff, Katherine Heid, has borne her burden of proof by clear and convincing evidence to justify the change in the physical custody from Michael Aaasulewski alone to joint physical custody of the child to both Michael Aaasulewski and Katherine Heid. This finding is based upon the Court being convinced that Katherine Heid is capable of giving love and care to the child and that the good of the child would be better served if both parents had the realization that they were both the legal and physical custodians of the child. As set forth in its...
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