Author: LegalEase Solutions
Whether a change in parenting time constitutes a change in the custodial environment, and whether the burden on the parent seeking to change parenting time is a preponderance of the evidence?
The focus of parenting time is to ‘foster a strong relationship’ between the child and the child’s parents. The courts have held that changes in parenting time are ‘not necessarily changes in custody’. A change in parenting time is examined in the light of subsequent change in the custodial environment. The custodial environment has been considered as ‘one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child’. If the change in parenting time will not disrupt the custodial existence, then, the change is granted. The parent seeking such a change must ‘establish, by a preponderance of the evidence that the change is in the child’s best interests’. Thus, the courts will look into the change, which may be caused to the custodial environment, before granting a change in parenting time and the burden on the parent requesting such a change is preponderance of evidence.
“Modifications in parenting time are not necessarily changes in custody” and “are distinct from changes in custody”. Rains v Rains, 301 Mich.App. 313, 340, 836 N.W.2d 709 (2013). “To discern the proper burden, the trial court’s initial inquiry is whether an established custodial environment exists.” Foskett v Foskett, 247 Mich.App. 1,5, 634 N.W.2d 363 (2001).
An established custodial environment is set out as:
[O]ne of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence.
Berger v Berger, 277 Mich.App.700,706, 747 N.W.2d 336 (2008).
Thus, “[i]f the required parenting time adjustments will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed.” Pierron v Pierron (Pierron II), 486 Mich. 81, 86, 782 N.W.2d 480 (2010).
“In determining whether an established custodial environment exists, it makes no difference whether that environment was created by a court order, without a court order, in violation of a court order, or by a court order that was subsequently reversed.” Hayes v. Hayes, 209 Mich.App. 385, 388, 532 N.W.2d 190 (1995).
“If the proposed change does not change the custodial environment” then, “the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests.” Shade v Wright, 291 Mich.App.17, 23, 805 N.W.2d 1 (2010).
“[T]he normal life changes that occurred with the minor child [the fact that a child has begun high school and seeks to become more involved in social and extracurricular activities] are sufficient to modify parenting time.” Id., at 31, 805 N.W.2d 1.
Preponderance of evidence in changing parenting time set out in Shade, supra, was followed when the court held that “[i]n order to modify a parenting-time schedule, if the modification would not constitute a change in an established custodial environment, the party proposing the change must show by a preponderance of the evidence that the change is in the child’s best interests.” Rains, supra at 340, 836 N.W.2d 709 (2013).