Trial Court Misapplied “Preponderance Of Evidence” Standard To Modify Custody | Speaker Law
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Trial Court Misapplied “Preponderance Of Evidence” Standard To Modify Custody

Posted on Monday, May 7, 2018

A trial court erroneously used a “preponderance of the evidence” standard to determine it was in the child’s best interest to change the established custodial arrangement, the Michigan Court of Appeals has ruled in a 2-1 decision that may create more confusion as to how to apply the burden in custody cases.

In Griffin v Griffin (published opinion, Docket No. 338810), the Court of Appeals said the “key” in custody modification cases is for the trial court to first find, by clear and convincing evidence, that the proposed custodial arrangement is in the child’s best interests.

The Court added, however, that to do this properly, trial courts must determine whether the proposed change is in the child’s best interests when compared to the status quo – not when compared with the parties’ suggested modifications, the Court of Appeals reasoned. The Court’s analysis is unique among family law cases and, although attempting to resolve a difficult question, may create more confusion among courts and practitioners instead.

The trial court wrongly applied a preponderance of the evidence standard when weighing the statutory best interest factors, Judge Michael J. Kelly concluded, joined by Judge Brock A. Swartzle. As a result, the trial court’s ruling was reversed.

Judge William B. Murphy dissented from the majority opinion, saying any error by the trial court was harmless and “reversal is unwarranted.”

Motions To Change Custody Arrangement

The plaintiff and the defendant were divorced and had one son together. They shared equal physical custody, using a two-week on/two-week off schedule.

The defendant is an active duty member of the U.S. Coast Guard. In January 2016, she received orders to report to a new station in Willowbrook, Illinois, almost four hours from the plaintiff’s home in Holt, Michigan. The trial court entered an order allowing the defendant to change her legal residence with the child from Auburn Hills, Michigan, to Willowbrook, Illinois. The order indicated the child’s legal residence with the plaintiff would remain in Holt and the existing parenting-time schedule would continue.

In January 2017, the plaintiff filed a motion to modify the custody arrangement. He argued that, because the child would be 5 years old and starting kindergarten, the child could not continue to split his time every two weeks, and that the child’s need to start school was a material change in circumstances necessitating a review of the custody arrangement. The plaintiff argued the best interest factors in MCL 722.23 weighed in favor of granting him full legal and physical custody, and awarding the defendant reasonable parenting time. The defendant responded to the motion by also requesting a modification of the custodial arrangement. She asserted the best interest factors weighed in favor of her having full legal and physical custody of the child.


After a Friend of the Court (FOC) investigation, the FOC recommended the child reside with the plaintiff during the school year and the defendant be awarded parenting time according to a holiday schedule, which included summer break. Both parties objected to the FOC’s recommendation.

The trial court held a hearing and awarded primary custody to the defendant during the school year and primary custody to the plaintiff during the summer. The plaintiff was also awarded custody during spring break, the week of Thanksgiving and one-half of Christmas break. In making its decision, the trial court applied a preponderance of the evidence standard, finding that the change in custody was in the child’s best interests. The trial court denied the plaintiff’s motion for reconsideration.

The Court of Appeals reversed, finding the trial court applied the wrong evidentiary standard in its analysis.

Erroneous Standard Applied

Judge Kelly, writing for the Court of Appeals majority, explained that when a parent moves for a change of custody, proper cause must first be established to revisit the original custody arrangement. Once this threshold is met, he said, then the trial court must determine whether the child has an established custodial environment.

“Where no established custodial environment exists, the trial court may change custody if it finds, by a preponderance of the evidence, that the change would be in the child’s best interests,” the judge wrote.

However, when an established custodial environment does exist, Judge Kelly said a trial court is not to change the established custodial environment unless there is clear and convincing evidence that it is in the child’s best interests.

In this case, Judge Kelly explained, the trial court, on its own, determined that although a change in custody would alter the established custodial environment, thereby requiring a clear and convincing standard, it was only required to apply a preponderance of the evidence standard. According to the judge, the trial court reasoned that because the plaintiff and the defendant had “the same” burden of proof and a change had to be made, it was proper to weigh the best interest factors under a preponderance of the evidence standard.

Looking at the facts, the trial court found that neither the plaintiff’s proposed change nor the defendant’s proposed change was, by clear and convincing evidence, superior to the other’s. However, the Court of Appeals noted for the first time in this published case that MCL 722.27(1)(c) does not require that one parent’s proposal be better than the other parent’s by a clear and convincing standard. Thus, the trial court was not tasked with comparing the proposals to each other and deciding which was better, Judge Kelly emphasized.

Instead, Judge Kelly said the trial court was required to find that the change in custody was in the child’s best interests when compared to the status quo. “[T]he child’s established custodial environment is the status quo, so in order to modify it the court must find by clear and convincing evidence that the change is in the child’s best interests when compared to the status quo, not when compared to every other conceivable or suggested modification,” the Court of Appeals wrote. “In doing so, the court is free to adopt either party’s proposal in whole or in part, but it is equally permissible for the court to fashion an entirely new custody arrangement or to maintain the existing custody arrangement. The key is that the court must first find by clear and convincing evidence that the new custodial arrangement is in the child’s best interests.”


As a result, Judge Kelly found the trial court erred by applying a preponderance of the evidence standard when weighing the best interest factors in MCL 722.23 and, therefore, reversal was required.

Unfortunately, this holding does not resolve the problem the Court of Appeals attempted to resolve. It seems required that at some point each parent’s proposed custody arrangement must be compared against the other. If not, what happens if both proposals are clearly and convincingly better than the status quo? By attempting to avoid the problem of neither proposal being clearly and convincingly better than the other, the Court has unfortunately simply created more questions and will likely cause more confusion in the trial courts.

Absences Due to Active Duty Status

The Court of Appeals also construed a portion of MCL 722.27(1)(c) that provides, “If a motion for change of custody is filed while a parent is active duty, the court shall not consider a parent’s absence due to that active duty status in a best interest of the child determination.” The Court’s analysis of this provision in particular was unusual. Without any indication in MCL 722.27(1)(c) to support it, the Court concluded that “a parent’s absence” means only “current” absences, not potential future ones.

The Court based its conclusion on a comparison to MCL 722.27(4), which mentions “future deployments.” Thus, the Court held that the trial court could consider potential future relocations due to active duty status in making its custody decision.

‘Harmless Error’

In his dissent, Judge Murphy explained that, if the trial court’s ultimate decision did not result in a true change of the established custodial environment, then applying the preponderance of the evidence standard would be “legally sound.”

“Assuming that there was a change in the established custodial environment and that the clear-and-convincing standard was applicable, I fail to see the need to reverse and remand the case, as any error would be harmless,” he wrote.

In particular, Judge Murphy pointed out the trial court recognized that a change in custody had to occur, and that the child’s best interests could only be served by altering the existing custody arrangement.

“And considering that the trial court found in favor of defendant on four of the child custody best-interest factors, MCL 722.23, with the remaining factors being even, except for one, the court would be forced again to rule in favor of defendant, even on the clear-and-convincing standard,” the judge said. “Reversal is unwarranted.”

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