Is there an established custodial environment (ECE)?
The court must make findings on this issue before deciding custody.
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.
If there is an established custodial environment, ECE, a change of custody may be made only on clear and convincing evidence that the change is in the best interests of the child.
If no established custodial environment exists, custody may be changed on showing by a preponderance of the evidence that the custodial arrangement is in the best interests of the child.
Prior custody orders—mere existence does not create an established custodial environment.
Custodial parent voluntarily relinquishes custody—all factors must be examined to determine if a new custodial environment is created. Public policy encourages a parent with difficulties to temporarily relinquish custody to resolve his or her problems.
In prejudgment cases where the parties are residing together, the judge makes the determination on a preponderance of the evidence.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.
(a) The love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
(f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
(g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
( l ) Any other factor considered by the court to be relevant to a particular child custody dispute. The court may not consider the race of a parent’s spouse in considering whether to change custody.
Joint custody means that the parents have joint physical custody (the child resides for alternate periods with each parent) and/or that the parents have joint legal custody (the parents share decision-making authority on important decisions affecting the child’s welfare).
In a joint custody arrangement, the order determining custody or parenting time must contain a provision stating the parents’ agreement on how they will handle a change in either of the child’s legal residences that is more than 100 miles from the child’s residence at the time the action was filed. If the parents do not agree on such a provision, the order must state: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the ‘Child Custody Act of 1970,’ 1970 PA 91, MCL 722.31
Custody is a very
technical area of the law.
Please call for counsel