Custody change; Established custodial environment (ECE); MCL 722.27(1)(c); Sabatine v Sabatine; Baker v Baker; Statutory best-interest factors (MCL 722.23); Factors (b), (f), (j), (k), & (l); Interference with the other party’s parenting time; In camera interview of the children; Factor (i); Inquiry into the rationale of a preference; Molloy v Molloy

The court held that the trial court did not clearly err in determining that the parties’ children had an ECE with both parties at the time of the referee hearing, and rejected plaintiff-father’s arguments as to the trial court’s findings on the best-interest factors. He also failed to establish that the referee erred in conducting the in camera interview of the children. Thus, the court affirmed the award of primary physical custody to defendant-mother. The court concluded that the facts presented to the trial court supported its finding that the children’s ECE as of the hearing date was with both parties, “and that defendant had proven by clear and convincing evidence that a change was in” the children’s best interests. While they “were primarily living with plaintiff in the marital home at the time of the referee hearing, this is not determinative.” The Supreme Court cautioned in Sabatine “against placing ‘too much or too little emphasis on the child’s physical environment’ in determining whether an” ECE exists. Further, “the trial court applied the correct legal standard even if it had found the [ECE] was with plaintiff.” Because it found an ECE “with both parties, it applied the clear-and-convincing standard to defendant’s motion for a change in custody as instructed” in Sabatine. Next, the court disagreed with plaintiff’s assertion “the trial court committed clear legal error by deciding to modify child custody ‘based almost exclusively’ on plaintiff’s ‘parenting time denials.’” Although visitation and contempt disputes “‘are not a proper basis for changing custody,’” the court found “no clear error in the trial court’s reference to plaintiff’s behavior and actions toward defendant with respect to the parenting time as applied to the factors that” it ultimately determined favored her – (b), (f), (j), (k), and (l). It “cited plaintiff’s interference with defendant’s parenting time as directly implicating Factors (f) and (j). Neither finding is against the great weight of the evidence.” As to (b), it “affirmed the referee’s finding that plaintiff ‘lacks the disposition to give appropriate guidance regarding the children’s ongoing contact’ with defendant[,]” citing his actions. “The bottom line is that the trial court’s analysis of Factors (b), (f), (j), (k), and (l), was not limited to plaintiff’s violation of the court orders or his denial of parenting time, but properly considered specific behaviors and actions by [him] that implicated each” factor.