The first step in deciding any child custody dispute is to determine if an established custodial environment exists.[1] The Child Custody Act requires restraint from issuing an initial or modified order that changes it unless the change is by clear and convincing evidence in the child’s best interests. A custody order does not establish a custodial environment.[2] Instead, the family court must look to the underlying facts to determine whether, and where, it exists.[3]
1. Common Law Definition
An established custodial environment is a physical and a psychological environmentthat develops over an appreciable time, a significant duration.[4] That is, the environment is not simply a physical environment dictated by the amount of time a child spends with a particular party – rather, it is “an environment in the psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence.”[5]
2. Finding With Both Parents / Modifications
To determine whether an established custodial environment exists, we must examine the circumstances surrounding the care of the children.[6] These are the daily care giving tasks – feeding, clothing, bathing, tutoring, entertaining, teaching, etc. – and the quantity of quality time between them. Using this analysis, the family court may very well find both parents have an established custodial environment with their child.[7]
A modification that does not then require their child to look to one parent alone does not destroy the environment with both. [8]
[1] Stringer v Vincent, 161 Mich App 429; 411 NW2d 474 (1987)
[2] Bowers v Bowers, 198 Mich App 320; 497 N2d 602 (1993).
[3] Id.
[4] Baker v Baker, 411 Mich 567; 309 NW2d 532 (1981).
[5] Id.
[6] Schwiesow v Schwiesow, 159 Mich App 548; 406 NW2d 878 (1987).
[7] Breas v Breas, 149 Mich App 103; 385 NW2d 743 (1986).
[8] Id.