Child custody; Parenting time; Physical custody; Modification; Proper cause; Findings on the statutory best-interest factors (MCL 722.23); Pierron v Pierron; Failure to address all the factors; Change in the established custodial environment (ECE)

While the court concluded that the trial court’s finding of proper cause to revisit the prior custody and parenting time order was not against the great weight of the evidence, it held that failing to consider and weigh all the MCL 722.23 factors was clear legal error. Thus, it vacated the order modifying the parties’ parenting time and awarding defendant-father primary physical custody, and remanded. He sought modification on the basis that plaintiff-mother had allegedly failed to comply with a prior order related to her live-in boyfriend’s (H) contact with the children. In challenging the trial court’s proper cause finding, plaintiff characterized the allegations against H “as baseless and unsubstantiated, but” the court found that she “mischaracterized the reports. The CPS report notes that CPS would not pursue further investigation based upon its opinion that [H’s] alleged conduct did not rise to the level of sexual abuse, not because the CPS investigator found the children’s statements lacked veracity. The report’s notes indicate that the CPS investigator and a law enforcement officer characterized [H’s] behavior as ‘grooming,’ and he might have been testing the older child to see what he could get away with around her.” The court concluded that, overall, the record before it reflected “that the children were subjected to unwanted touching by [H] repeatedly and consistently while the prior order was in effect. The children having their bodily autonomy and boundaries repeatedly disregarded by an unrelated adult while at plaintiff’s residence directly bears on their mental well-being and calls into question whether it is a ‘stable, satisfactory environment’ under MCL 722.23(d).” But the court noted that because the trial court found that defendant’s motion would result in a change of the children’s ECE, it “was required to consider all of the best-interest factors.” Nonetheless, it “specifically declined to assess factors (g), (j), and (k) after determining that they were ‘otherwise irrelevant’ to” its ruling. A “trial court is only permitted to state that a factor is irrelevant if the motion would not change the” ECE.