Opinion
SC 164888 COA 359665
12-09-2022
RACHEL ANNE BUTTERS, Plaintiff-Appellee, v. PATRICK LEE BUTTERS, Defendant-Appellant.
Kent CC: 15-000548-DM
Elizabeth T. Clement, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch, Justices
ORDER
On order of the Court, the application for leave to appeal the July 28, 2022 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals. The Court of Appeals correctly explained that, on remand, the trial court" 'should consider up-to date information, including the children's current and reasonable preferences'" when determining whether a modification of the previous custody order is warranted. Butters v Butters, __ Mich.App. __, __ (2022); slip op at 6, quoting Fletcher v Fletcher, 447 Mich. 871, 889 (1994). However, the Court of Appeals erred by instructing the Kent Circuit Court on remand to apply the best-interest factors under the clear-and-convincing-evidence standard without regard to any changed circumstances that might have occurred during the pendency of this appeal. When nonharmless errors occur in child custody cases that necessitate a remand to the circuit court for reevaluation, those courts should address the circumstances of the child as they exist at the time of remand. See O'Brien v D'Annunzio, 507 Mich. 976 (2021); Fletcher, 447 Mich. at 889; Dempsey v Dempsey, 409 Mich. 495, 496 (1980).
On remand, when addressing the issues remanded by the Court of Appeals, we DIRECT the Kent Circuit Court to reevaluate the children's established custodial environments based upon up-to-date information in existence at the time of the evidentiary hearing. If the circuit court concludes that the children have established custodial environments with plaintiff or with both parents at the time of the hearing on remand, then "[t]he court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." MCL 722.27(1)(c). See also Foskett v Foskett, 247 Mich.App. 1, 5-6 (2001). We further direct the circuit court to expedite its consideration and resolution of this case.
We do not retain jurisdiction.