Joint legal custody; MCL 722.26a(1)(b); Kuebler v Kuebler; Fisher v Fisher; Best interests; MCL 722.23; Established custodial environment (ECE); Sabatine v Sabatine; Burden of proof; Kessler v Kessler

The court held that the trial court’s best-interest findings and its decision to award defendant-mother sole legal custody were supported. But the trial court erred by failing to state whether the change would alter the child’s ECE and, thus, which burden of proof applied, requiring remand for articulation of those findings and whether the burden was satisfied. The parties previously shared joint legal and physical custody under the divorce judgment. After “protracted litigation” the trial court held an evidentiary hearing and granted defendant sole legal custody while continuing joint physical custody. It found the child’s special needs “and the absolute inability of the parties to make joint decisions about his care require that one person has the opportunity to do so,” and it concluded defendant “needs that opportunity.” On appeal, the court held that the trial court properly evaluated joint legal custody under MCL 722.26a(1)(b) because “‘in order for joint custody to work, parents must be able to agree with each other on basic issues,’” and the record “overwhelmingly supported” the conclusion that the parties having joint legal custody was not warranted. It also upheld the contested best-interest findings, concluding that the findings on factors (c), (j), and (l) were not against the great weight of the evidence where the record showed persistent distrust and that both parents “‘struggle to see each other’s value in the children’s lives.’” But it found legal error because the trial court did not say whether shifting from joint to sole legal custody altered the ECE or which standard applied. If the change would modify the custodial environment “‘the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child’s best interests.’” Failing to make the necessary findings as to the effect on the ECE and the applicable burden constituted error. Thus, the court affirmed the findings under the best-interest factors and MCL 722.26a(1)(b), but remanded for the trial court to state whether the change altered the ECE and, if so, whether the decision was based on clear and convincing evidence. Affirmed in part and remanded.