Summary
denying leave to appeal but stating that the Court was taking the "opportunity to emphasize how critical it is that trial courts fully comply with MCL 722.27(c) before entering an order that alters a child's established custodial environment"
Summary of this case from Telehowski v. TelehowskiOpinion
SC: 155852 COA: 333425
10-13-2017
Jennifer Lynn DALY, a/k/a Jennifer Lynn Ward, Plaintiff-Appellant, v. Matthew Hubert WARD, Defendant-Appellee.
Order On order of the Court, the application for leave to appeal the April 18, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
However, we take this opportunity to emphasize how critical it is that trial courts fully comply with MCL 722.27(1)(c) before entering an order that alters a child's established custodial environment.
"The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." Id . A 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." Id . This heightened evidentiary burden for altering a child's established custodial environment recognizes the commonsense proposition that a child benefits from the permanence and stability of an established custodial environment, and therefore that such an environment should not lightly be altered. Importantly, MCL 722.27(1)(c) does not limit this heightened evidentiary burden to orders that expressly alter a child's established custodial environment. Rather, while a trial court has the authority to enter an ex parte interim order concerning parenting time, see MCL 722.27a(12), it may not enter such an order if it also alters the child's established custodial environment without first making the findings required by MCL 722.27(1)(c). E.g., Powery v. Wells , 278 Mich.App. 526, 528, 752 N.W.2d 47 (2008) ; Brown v. Loveman , 260 Mich.App. 576, 595, 680 N.W.2d 432 (2004).
An order altering a child's established custodial environment has serious consequences for all the parties involved, as it deprives both the child and one parent of precious time together and alters that parent's evidentiary burdens at any subsequent custody hearing. See Hayes v. Hayes , 209 Mich.App. 385, 388–389, 532 N.W.2d 190 (1995) ("[A]n error by the court in granting defendant temporary custody of the children pending the permanent custody trial [does] not affect the trial court's analysis of whether an established custodial environment existed."). In many instances, it is difficult—if not altogether impossible—to effectively remedy on appeal, and to restore the status quo ante , following an erroneous order altering a child's established custodial environment without causing undue harm to the child. Thus, to restate, it is critical that trial courts, in the first instance, carefully and fully comply with the requirements of MCL 722.27(1)(c) before entering an order that alters a child's established custodial environment. Any error in this regard may have lasting consequences yet effectively be irreversible.