Court Of Appeals Clarifies Precedential Effect Of Pre-1990 Decisions In Custody Appeal
Opinion Published: January 20, 2026 (Riordan, Murray, Maldonado)
COA Docket No. 374260
Genesee County Circuit Court
Jordan Ahlers-Smith of Speaker Law Firm represented the Appellant-Father.
Holding: The Court of Appeals affirmed the trial court’s factual findings on the contested best-interest factors and its determination under MCL 722.26a(1)(b) that joint legal custody was not warranted, but remanded for the trial court to articulate whether awarding Appellee-Mother sole legal custody modified the child’s established custodial environment and, if so, whether the decision satisfied the clear-and-convincing-evidence standard.
Facts: Appellant-Father and Appellee-Mother are divorced parents whose judgment of divorce awarded them joint legal and physical custody of their youngest child, AP. Following years of contention and extensive litigation on issues including education, parenting time, medical treatment, co-sleeping, and participation in baseball, Appellant-Father repeatedly sought sole legal and physical custody of AP.
The trial court found proper cause or change of circumstances to revisit custody and determined that AP had an established custodial environment with both parents. After weighing the 12 best-interest factors under MCL 722.23 and considering MCL 722.26a, the court granted Appellee-Mother sole legal custody of AP while maintaining joint physical custody. The trial court specifically found that AP’s special needs and the parties’ absolute inability to make joint decisions about his care required vesting decision-making authority in one parent, concluding that Appellee-Mother should have that opportunity at this time.
On appeal, Appellant-Father argued that the trial court committed legal error by failing to state whether the change to sole legal custody modified AP’s established custodial environment and by failing to identify the burden of proof it applied. Appellant-Father did not challenge the trial court’s findings of proper cause/change of circumstances or its determination that an established custodial environment existed with both parents. Appellant-Father also challenged several of the Trial Court’s findings under the MCL 722.23 best interest factors.
Key Appellate Rulings:
Under the Michigan Court Rules, there is no difference, in terms of precedential effect, between a published Court of Appeals Opinion issued pre-1990 and post-1990.
Separate from the Court’s consideration of Appellant-Father's arguments on appeal, the panel engaged in a discussion regarding published Court of Appeals decisions issued prior to November 1, 1990, specifically focusing on Fisher v Fisher, 118 Mich App 227; 324 NW2d 582 (1982). The panel reiterated that, under MCR 7.215(C)(2) “all published decisions of this Court issued prior to November 1, 1990, are binding, precedential decisions under stare decisis.” The panel emphasized that “there is no difference in the precedential effect of a pre- versus post-1990 decision. Instead, the only difference between a pre- and post-November 1, 1990 decision is that the latter must be followed by a subsequent panel unless it is overruled by a conflict panel or the Supreme Court, while the former must be followed unless a subsequent three-judge panel concludes it is distinguishable or warrants reversal. MCR 7.215(C)(1) & (2). This is unlike unpublished opinions, which are not required to be followed under any circumstance.”
Failure to articulate whether a proposed change would change the established custodial environment and to articulate the appropriate burden of proof is reversible error requiring remand.
The panel noted that, despite there not being any clearly erroneous findings of fact, “our Court has been steadfast that the failure to articulate the burden of proof being applied is reversible error.” The panel held that the situation presented by this case differed from those situations where the Trial Court imposed the incorrect burden of proof, which could be found to be a harmless error. The panel also held that, while Appellant-Father bore the burden of proof as the moving party, the Trial Court “still could not modify the established custodial environment without clear and convincing evidence.” Thus, the Court of Appeals remanded to the Trial Court to “articulate whether the proposed change to sole legal custody changed AP’s established custodial environment, and if so, whether it had granted [Appellee-Mother] sole legal custody based upon clear and convincing evidence.” The panel left it to the discretion of the Trial Court whether the Trial Court would consider up to date evidence on remand.
