Established Custodial Environments: What Are They and Why Do They Matter?
Michigan's 'established custodial environment' concept is important to Michigan residents with minor children who are facing a divorce, or who have already concluded their divorce.
Once an initial custody determination is made by a Michigan court, any subsequent modifications to legal and/or physical custody determinations, that would modify the established custodial environment of the minor child, must be proven by clear and convincing evidence to be in the best interests of the child. Those modifications that would not modify the established custodial environment of the minor child require only a preponderance of the evidence that the proposed change is in the best interests of the child.
So what is an 'established custodial environment'?
"The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. " MCL 722.27 (1)(c).
An established custodial environment can exist between one, or both, parents and their child(ren) after a divorce. The existence or lack thereof is fact-sensitive, and is not easy to establish by simply looking at the custody order or parenting time schedule.
What does 'clear and convincing evidence' mean?
'clear and convincing evidence' means that the party with the burden of proof must prove that fact at issue is substantially more likely than not that it is true. This a higher evidentiary standard than 'preponderance of the evidence', but a lower standard than 'beyond a reasonable doubt.'
Why does this issue matter so much if I am just starting a divorce proceeding?
Because the outcome of the initial divorce proceeding is what may be later modified. If you do not receive the custody outcome you desired during your divorce, the evidentiary burden to modify it later may be high, although not insurmountable. It is the "close cases," where there may, or may not, be enough evidence to support a modification to custody where parents can feel trapped by those initial custody orders.