Kolb v. Garn, (Unpublished, #287534), 1/21/10
Domestic Relations ReviewThe trial court awarded the defendant mother sole legal and physical custody of the parties’ minor child after determining that the mother had an established custodial environment with the child. However, the court reserved the issue of parenting time for the plaintiff father. Thereafter, the court awarded the father 7 of 14 overnights with the child & ordered the mother to pay $1500 toward the father’s attorney fees. The defendant mother appealed and the Court of Appeals vacated the attorney fee award and reversed and remanded the case to address the custody and parenting time issues.
The first issue raised on appeal concerned the trial court’s determination that the mother had an established custodial environment with the child resulting in awarding her sole legal and physical custody but providing the father with essentially joint physical custody. The Court of Appeals opined that the trial court’s awarding the father 7 of 14 overnights was legally inconsistent with a sole legal/physical custody award to the mother and a determination that the mother had an established custodial environment with the child.
Here, given that the trial court had found the mother to have an established custodial environment with the child, there must be clear and convincing evidence presented to change that established custodial environment. The trial court’s parenting time award to the father essentially changed that established custodial environment without any finding of clear and convincing evidence that it was in the child’s best interest to do so. Previously, the father had enjoyed four afternoons and two overnights in a two week period.
The mother argued that because the court found that the parties were unable to cooperate on important matters that the trial court was precluded awarding joint physical custody. However, the Court of Appeals decided that the “parties’ ability to cooperate” was only one factor to consider in deciding to award joint legal or physical custody.
The Court of Appeals indicated that the labels of “legal and physical custody” are not determinative of whether an established custodial environment has been disturbed. Thus, while in this case the trial court did consider the best interest factors in MCL 722.23 in fashioning the father’s parenting time, it did not indicate what standard (clear and convincing evidence or preponderance of the evidence) it was using. That was clear legal error especially in light of the trial court’s early determination that the mother had an established custodial environment with the child.
The Court of Appeals further determined that it would not be appropriate to merely set the father’s parenting time back to his prior 4 afternoons and 2 overnights in a two week period as requested by the mother. Rather, the case was remanded to the trial court to revisit the custody and parenting time issues in light of the current circumstances – deciding what established custodial environment existed and whether that should be changed based on the appropriate standard (clear and convincing evidence or preponderance of the evidence) in light of the “best interest” factors.
In addition, the Court of Appeals vacated the award of attorney fees to the father. No evidence was offered as to the father’s actual attorney fee expense. Further, the father failed to produce any evidence he lacked the ability to bear the expense of the litigation or that the mother was able to pay the father’s attorney fees out of her income.
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Last updated 2-2-10
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