Charlie Dalton Davis v. Elise Cathryn Schnuphase ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CHARLIE DALTON DAVIS, UNPUBLISHED
July 28, 2022
Plaintiff-Appellee,
v No. 359356
Lapeer Circuit Court
ELISE CATHRYN SCHNUPHASE, LC No. 21-054773-DC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
PER CURIAM.
In this custody action, defendant appeals as of right the trial court’s judgment awarding the
parties joint legal and physical custody of the minor child, and awarding them equal parenting
time. For the reasons set forth in this opinion, we affirm.1
I. BACKGROUND
This appeal involves a custody dispute between plaintiff and defendant over their infant
daughter. The child was less than two months old when plaintiff, the child’s father, filed this
action in July 2021. Plaintiff requested joint legal and physical custody of the child, and equal
parenting time.
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We reject plaintiff’s argument that this Court lacks jurisdiction to consider defendant’s challenge
to the trial court’s temporary parenting-time orders and the court’s discovery rulings. The trial
court’s November 2, 2021 judgment is not a “final order” under MCR 7.202(6)(a)(iii), as that rule
only applies to postjudgment custody orders. Instead, the judgment is the first order that fully
adjudicates the parties’ custody dispute. As such, it qualifies as a final order under MCR
7.202(6)(a)(i), and it is not subject to the limitation in MCR 7.203(A)(1) for appeals from an order
described in MCR 7.202(6)(a)(iii)-(v). Defendant is free to raise on appeal issues related to any
of the trial court’s prior orders. Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487
NW2d 807 (1992).
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The parties were never married. Defendant and the child initially lived with plaintiff and
his family, but shortly after the child’s birth, defendant and the child moved out of plaintiff’s
family’s home and moved into the home of defendant’s parents. Both parties continued to reside
with their own parents throughout the proceedings. While the matter was pending, the trial court
granted plaintiff’s motion for temporary parenting time. Defendant opposed the motion,
principally arguing that the child would not be safe in plaintiff’s care because of his unstable
mental health, he had difficulty controlling his anger, he refused to take his medication, and his
family owned an aggressively dangerous dog. Defendant requested that she be awarded sole
physical custody of the child and that plaintiff’s parenting time be supervised pending a
psychological evaluation and drug testing, and that plaintiff be ordered to attend parenting and
anger-management classes. The trial court awarded plaintiff temporary parenting time, initially
supervised but then unsupervised, pending an evidentiary hearing to determine issues of custody
and parenting time.
The custody hearing was scheduled for October 8, 2021. On September 17, 2021,
defendant filed a motion to adjourn the custody hearing so that she could conduct further discovery.
In particular, defendant requested an opportunity to conduct further discovery regarding plaintiff’s
mental health issues. In support of her motion, defendant relied on voluminous exhibits in the
form of text messages, Facebook and Instagram postings, which she maintained demonstrated
plaintiff’s difficulties controlling his anger, his depression, anxiety, suicidal thoughts, and his drug
use. Defendant also alleged that plaintiff recently purchased a large and aggressive snake, and
that plaintiff refused to restrain the snake and the family dog when the child was in his home,
which reflected his emotional immaturity and inability to make good choices in the child’s best
interests.
The trial court reviewed plaintiff’s responses to defendant’s first set of interrogatories and
determined that plaintiff sufficiently responded to defendant’s questions and requests. The court
denied plaintiff’s motion to adjourn the custody hearing and denied the motion for further
discovery, but ordered plaintiff to provide defendant with an unredacted copy of his medical
information from McLaren Oakland Family Medicine, which he did.
Following a two-day custody hearing in October 2021, the trial court awarded the parties
joint legal and physical custody of their child, and equal parenting time. On appeal, defendant
makes several challenges to the trial court’s judgment.
II. DISCOVERY OF PLAINTIFF’S MEDICAL INFORMATION
Defendant first raises a series of issues related to the trial court’s denial of her requests for
further discovery of plaintiff’s mental health information and refusal to adjourn the custody
hearing to permit the additional discovery.
A trial court’s decision to grant or deny discovery is reviewed for an abuse of discretion.
Micheli v Mich Auto Ins Placement Facility, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket No. 356559); slip op at 3. A court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes. Id. “A trial court necessarily abuses its discretion
when it makes an error of law.” Id. (citation omitted). To the extent that defendant argues that the
trial court’s decisions regarding discovery violated her right to due process, this Court reviews
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such an issue de novo. In re Sangster, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 352147); slip op at 4, lv pending; Upper Peninsula Power Co v Village of L’Anse, 334 Mich
App 581, 591; 965 NW2d 658 (2020).
MCR 2.314 provides, in pertinent part:
(A) Scope of Rule.
(1) When a mental or physical condition of a party is in controversy,
medical information about the condition is subject to discovery under these rules to
the extent that
(a) the information is otherwise discoverable under MCR 2.302(B), and
(b) the party does not assert that the information is subject to a valid
privilege.
(2) Medical information subject to discovery includes, but is not limited to,
medical records in the possession or control of a physician, hospital, or other
custodian, and medical knowledge discoverable by deposition or interrogatories.
(3) For purposes of this rule, medical information about a mental or physical
condition of a party is within the control of the party, even if the information is not
in the party's immediate physical possession.
* * *
(C) Response by Party to Request for Medical Information.
(1) A party who is served with a request for production of medical
information under MCR 2.310 must either:
(a) make the information available for inspection and copying as requested;
(b) assert that the information is privileged;
(c) object to the request as permitted by MCR 2.310(C)(2); or
(d) furnish the requesting party with signed authorizations in the form
approved by the state court administrator sufficient in number to enable the
requesting party to obtain the information requested from persons, institutions,
hospitals, and other custodians in actual possession of the information requested.
(2) A party responding to a request for medical information as permitted by
subrule (C)(1)(d) must also inform the adverse party of the physical location of the
information requested.
MCR 2.311 addresses the physical and mental examination of parties, and provides, in
pertinent part:
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(A) Order for Examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or under the
legal control of a party, is in controversy, the court in which the action is pending
may order the party to submit to a physical or mental or blood examination by a
physician (or other appropriate professional) or to produce for examination the
person in the party’s custody or legal control. The order may be entered only on
motion for good cause with notice to the person to be examined and to all parties.
The order must specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made, and may provide
that the attorney for the person to be examined may be present at the examination.
The thrust of defendant’s arguments is that she was precluded from obtaining discovery of
plaintiff’s medical records. Defendant asserts that plaintiff failed to sign a medical authorization,
which prevented her from adequately investigating his mental health issues and circumvented her
from calling an expert witness regarding mental health issues, thereby undermining her right to
due process. The record does not support defendant’s assertions.
The record reflects that plaintiff did respond to defendant’s interrogatories and requests for
production of documents. In response to a request to name the medical professionals who plaintiff
treated with for his mental health issues, and the facilities he had visited, plaintiff disclosed that
he had seen Dr. Cohen at McLaren Oakland Family Medicine, and he provided Dr. Cohen’s contact
information. Plaintiff also disclosed when he first saw Dr. Cohen, that he was diagnosed with a
mood disorder, and that he was taking Cymbalta and Lamictal to treat his mood disorder. While
plaintiff did not also sign an attached medical authorization form to allow defendant to obtain his
medical records from Dr. Cohen, plaintiff had already disclosed the office note from Dr. Cohen in
which Dr. Cohen stated that plaintiff was diagnosed with a mood disorder, was doing well
otherwise, and was capable of parenting the child without limitations or restrictions. Moreover,
the trial court ordered—and plaintiff produced—an unredacted copy of his medical record from
McLaren Oakland Family Medicine. Thus, plaintiff’s failure to sign the medical authorization did
not prevent defendant from obtaining plaintiff’s medical records from Dr. Cohen. Further, as the
trial court found, it also did not prevent defendant from calling Dr. Cohen as a witness, or from
calling any other witness who could testify regarding mental health issues in support of defendant’s
case.
The record also does not support defendant’s suggestion that plaintiff intentionally
withheld information during discovery, either in response to defendant’s first set of interrogatories
or the two subpoenas that defendant issued. Plaintiff testified that he did not receive any mental
health therapy and only consulted with Dr. Cohen, who diagnosed his mood disorder and
prescribed medication. That information was provided to defendant.
Despite defendant’s argument to the contrary, the record does not support defendant’s
assertion that her right to due process was in any way undermined by the trial court’s decisions to
deny (1) defendant’s motion to adjourn the custody hearing, (2) defendant’s oral motion to compel
discovery, or (3) defendant’s oral motion for clarification of these rulings. Defendant had ample
time throughout the proceedings to seek discovery regarding plaintiff’s medical information. She
was also afforded a great deal of latitude to question plaintiff and members of his family about
plaintiff’s mental health treatment. Plaintiff never asserted privilege to any requested information,
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he acknowledged having been diagnosed with a mood disorder for which he was prescribed
medication, and he stated that he only sought treatment from Dr. Cohen, who provided an opinion
regarding plaintiff’s ability to parent the child. Under these circumstances, we are not persuaded
that defendant’s due process right was undermined in any manner.
III. PARENTING TIME AND CUSTODY
Defendant also argues that the trial court erred by awarding plaintiff temporary parenting
time without first holding an evidentiary hearing to consider the existence of an established
custodial environment, and without considering the necessary statutory factors. Defendant also
challenges the trial court’s factual findings with respect to several of the best-interest factors in
MCL 722.23, its determination that the child did not have an established custodial environment
with either parent, and its decision to award the parties joint legal and physical custody of the child,
with equal parenting time. We find no error warranting reversal.
A. STANDARDS OF REVIEW
MCL 722.28 provides:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.
Therefore, in a child-custody action, this Court applies three different standards of review.
The trial court’s findings of fact are reviewed under the great-weight-of-the-evidence standard.
Merecki v Merecki, 336 Mich App 639, 644; 971 NW2d 659 (2021). “A finding of fact is against
the great weight of the evidence if the evidence clearly preponderates in the opposite direction.”
Id. at 645 (citation omitted). This Court defers to a trial court’s determination of credibility.
Demski v Petlick, 309 Mich App 404, 445; 873 NW2d 596 (2015). The trial court’s ultimate
custody determination is reviewed for an abuse of discretion. Merecki, 336 Mich App at 645. A
court abuses its discretion in a custody action when the result “ ‘is so palpably and grossly violative
of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of
passion or bias.’ ” Id., quoting Butler v Simmons-Butler, 308 Mich App 195, 201; 863 NW2d 677
(2014). Any questions of law are viewed for clear legal error, which occurs if the trial court
incorrectly chooses, interprets, or applies the law. Merecki, 336 Mich App at 645.
Likewise, with respect to parenting-time decisions,
[o]rders concerning parenting time must be affirmed on appeal unless the trial
court’s findings were against the great weight of the evidence, the court committed
a palpable abuse of discretion, or the court made a clear legal error on a major issue.
[Luna v Regnier, 326 Mich App 173, 179; 930 NW2d 410 (2018), quoting Shade v
Wright, 291 Mich App 17, 20-21; 805 NW2d 1 (2010) (quotation marks and citation
omitted).]
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Consistent with these deferential standards, a trial court’s findings regarding the existence of an
established custodial environment should be affirmed unless the evidence clearly preponderates in
the opposite direction. Pennington v Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019).
Defendant’s unpreserved issue regarding the trial court’s authority to enter temporary
parenting-time orders after the parties signed and filed an acknowledgment of parentage (AOP) is
reviewed for plain error affecting substantial rights. Rivette v Rose-Molina, 278 Mich App 327,
328; 750 NW2d 603 (2008). As explained in Rivette:
“ ‘To avoid forfeiture under the plain-error rule, three requirements must be met:
(1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and
(3) the plain error affected substantial rights.’ ” [Id. at 328-329, quoting Kern v
Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2008), quoting People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).]
B. TRIAL COURT’S AUTHORITY TO ENTER TEMPORARY PARENTING TIME
ORDERS
Initially, defendant claims that because the parties executed an AOP, she had sole physical
and legal custody of the child by operation of law. MCL 722.1006, which is part of the
Acknowledgment of Parentage Act (APA), MCL 722.1001 et seq., addresses the impact of an AOP
on a child’s custody, stating:
After a mother and father sign an acknowledgment of parentage, the mother
has initial custody of the minor child, without prejudice to the determination of
either parent’s custodial rights, until otherwise determined by the court or otherwise
agreed upon by the parties in writing and acknowledged by the court. This grant
of initial custody to the mother shall not, by itself, affect the rights of either parent
in a proceeding to seek a court order for custody or parenting time.
Although defendant correctly observes that she initially was entitled to custody of the child
after the AOP was signed, the AOP itself was not the equivalent of a judicial grant of custody and
it did not affect plaintiff’s right to file an action for custody or parenting time. Indeed, in Foster v
Wolkowitz, 486 Mich 356, 366; 785 NW2d 59 (2010), the Court recognized that “nothing in the
plain language of the [APA] equates the execution of an AOP to a judicial determination regarding
custody; rather, the statutory language [of MCL 722.1006] leads to the opposite conclusion.”
Equating an AOP to a judicial determination of custody would be prejudicial to the father because
the Child Custody Act, MCL 722.1 et seq., does not allow the trial court to modify an existing
order that would disrupt a child’s established custodial environment unless the modification is
shown by clear and convincing evidence to be in the best interests of the child. Foster, 486 Mich
at 366 n 19. Any conclusion that an AOP amounts to a judicial determination of custody would
be inconsistent with the statutory directive in MCL 722.1006, because it would subject the father
to a heightened evidentiary standard applicable when a party seeks to modify or amend an initial
grant of custody. Id. Therefore, the filing of the AOP did not affect plaintiff’s evidentiary burden
in pursuing custody or parenting time of the child. See Sims v Verbugge, 322 Mich App 205, 215;
911 NW2d 233 (2017) (recognizing that the plaintiff’s legal custody of the child acquired by way
of an AOP “was granted by operation of law, [and was] not a judicial determination”).
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We acknowledge that a trial court is required to conduct a hearing and consider the best-
interest factors in MCL 722.23 when a modification of parenting time will result in a change of
custody, even on a temporary basis. Yachcik v Yachcik, 319 Mich App 24, 51; 900 NW2d 113
(2017). However, the trial court was not modifying any custody determination because the filing
of an AOP did not amount to a judicial determination of the child’s custody. Defendant’s reliance
on Shade, 291 Mich App at 26, is misplaced. In Shade, this Court explained that if a modification
in parenting time will not disrupt a child’s established custodial environment, the standards set
forth in Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), to determine the
existence of proper cause or a change of circumstances, are not applicable. Shade, 291 Mich App
at 26-27. Here, the trial court’s decision to award temporary parenting time to plaintiff, first
supervised and later unsupervised, did not result in an alteration of the child’s custody or disruption
of her established custodial environment. This is particularly true given the child’s young age and
that defendant had primary physical custody pending trial. See also MCR 722.27(1)(e).
C. ESTABLISHED CUSTODIAL ENVIRONMENT
With respect to defendant’s argument that the trial court erred by finding that the child did
not have an established custodial environment with either party, MCL 722.27(1)(c) provides, in
pertinent part:
The court shall not modify or amend its previous judgments or orders or issue a
new order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of the
child. 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. The age of the child, the
physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered.
Defendant argues that the child had an established custodial environment only with her
because the child had lived with her since birth, she took the child to medical appointments, she
bathed, fed, and comforted the child, and the child was more bonded with her.
In determining that the child did not have an established custodial environment with either
party, the trial court considered that the child was still an infant (two months old at the time this
case was filed), the short duration of time that she lived with both of her parents, as well as the fact
that the child’s relationship with plaintiff was interfered with when defendant would not allow him
to have parenting time for a short period after the parties separated until the trial court entered its
order on July 21, 2021. Considering the child’s young age and the alterations in the child’s
custodial environment during the relatively short period between her birth and the trial court’s
custody determination, the trial court did not clearly err by finding that there was not an appreciable
time in which the child looked to either party for guidance, discipline, the necessities of life, and
parental comfort. MCL 722.27(1)(c).
D. THE BEST-INTEREST FACTORS OF MCL 722.23
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Defendant next challenges several of the trial court’s best-interest findings under MCL
722.23.
Child-custody disputes are to be resolved by determining a child’s best interests through a
weighing of the statutory best-interest factors outlined in MCL 722.23(a)-(l). Demski, 309 Mich
App at 446. The trial court found that best-interest factors (f) and (g) favored defendant, that factor
(l) slightly favored defendant, that factor (j) favored plaintiff, and that factor (i) was not applicable
because the child was too young to express a preference. The court weighed the remaining
statutory factors equally in favor of both parties. On appeal, defendant challenges the trial court’s
findings regarding factors (b), (c), (e), and (j).
The trial court held that factor (b), “[t]he capacity and disposition of the parties involved
to give the child love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any,” equally favored both parties, finding that both parties
have “the capacity and disposition to give the child love, affection.” The trial court observed that
although plaintiff “has not had as much opportunity” to spend time with the child, it found that the
child was thriving and having parenting time with plaintiff. The court also found that defendant
was Christian, but noted that the child was only an infant and that plaintiff had testified that he
would not interfere with the child being raised in the Christian faith.
Defendant challenges the trial court’s findings with regard to Factor (b) by questioning
plaintiff’s ability “to make good choices” for the child, and contends that the evidence showed that
defendant was more mature than plaintiff, that defendant is in good mental and physical health,
and that there were no moral issues regarding her ability to parent the child. Defendant asserts
that, conversely, the evidence showed that plaintiff is more immature, has a mood disorder, has
low self-esteem and has had suicidal thoughts, uses drugs, is unable to hold a job, did not
financially support the child until ordered by the court, and has significant anger issues. Although
we may have agreed with defendant had we been sitting as the trial court, under the more
deferential appellate standard, we conclude that the evidence did not clearly preponderate against
the trial court’s finding that plaintiff had the capacity and disposition to give the child love,
affection, and guidance.
We acknowledge that evidence was presented that plaintiff was diagnosed with a mood
disorder, had struggled with anger issues, had experienced suicidal thoughts, and had made several
questionable postings on Facebook and Instagram. On one occasion, plaintiff displayed a firearm
to another person in an apparent incident of road rage. However, the evidence did not suggest that
plaintiff posed a threat of real and serious harm to the child. Plaintiff described the child as “the
greatest baby” and expressed his excitement about her first tooth coming in. Plaintiff wanted more
time to bond with the child and he requested equal parenting time with her so that he and his family
could do so. Plaintiff also recounted that when the child spends time with him and his family, they
hung out as a family watching television, playing, and changing diapers.
Plaintiff was amenable to raising the child in the Christian faith as defendant wished. In
spite of challenges with his own upbringing, plaintiff was excited when the child was born, and he
looked forward to being a constant and stable presence in her life. Plaintiff also testified that he
and the child shared a very close bond, the child knew him as her father, and he explained that the
child brings him a sense of peace and calmness when he is with her. Plaintiff’s sister, Charlotte,
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also described plaintiff as a good father, and his brother Randal similarly testified that plaintiff had
found the joy of his life when the child was born. In sum, the evidence supports the trial court’s
conclusion that plaintiff was capable of and had the disposition to give the child love, affection,
and guidance. The evidence does not clearly preponderate against the trial court’s finding that this
factor equally favored both parties.
Factor (c) considers “[t]he capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and permitted under the
laws of this state in place of medical care, and other material needs.” MCL 722.23(c). The trial
court found that both parties were able to provide for the child. The court observed that defendant
was “furthering her education in cosmetology,” and while she was earning less than plaintiff at the
time of trial, she would obtain her licensure within the next year and had the ability to provide for
the child. Similarly, plaintiff was earning approximately $27,000 annually, and therefore, the trial
court concluded that “both parties have the financial ability to care for the child.”
Defendant criticizes the trial court for not acknowledging that (1) defendant has been the
child’s “sole provider,” (2) plaintiff’s unwillingness to pay child support without a court order,
and (3) plaintiff’s inability to hold down a secure job. The evidence did show that since the parties
separated in June 2021, defendant had financially supported the child, while plaintiff had not paid
any child support because a court order requiring payment of child support was not in place.
Plaintiff also testified that he was terminated from his job at a car wash 18 months before trial,
was fired from a pizza establishment in 2016, and left his employment at Southern Trucking
Equipment after a year. At the time of trial, however, plaintiff was working at Natural Way and
earning approximately $27,000 annually, and he had received a promotion. Plaintiff also paid for
the child’s medical insurance. Plaintiff admitted that he was not paying child support at the time
of trial, stating that he had not been ordered to do so. But considering his current employment and
the medical insurance he had been providing for the child, the trial court’s finding that plaintiff
had the capacity and disposition to provide the child with food, clothing, and medical care was not
against the great weight of the evidence.
Factor (d) considers “the length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). The trial court
acknowledged that both parties were living with their parents “in stable, satisfactory, good
environments, good homes,” and that the child had resided in both homes. Accordingly, the trial
court weighed factor (d) equally between the parties. Addressing related factor (e), “[t]he
permanence, as a family unit, of the existing or proposed custodial home or homes[,]” MCL
722.23(e), the trial court found that this factor did not favor either party because both parties had
“maturity issues,” but because they both were residing in “good stable homes” with their parents,
they both had “backup there,” which the court determined was important.
In challenging the trial court’s finding regarding Factor (e), defendant complains that the
trial court did not adequately consider the “permanency” of the parties’ family homes, but only
considered the “acceptability” of their homes. As an initial matter, the trial court ordered that both
parents were to remain living in their respective parents’ home for at least one calendar year, and
informed the parties that if they were to leave their parents’ homes, the court may consider that a
change of circumstances, or proper cause to revisit its custody and parenting-time determinations.
It is clear that the trial court carefully balanced the child’s need for permanence in her family unit
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with the reality that both parties were very young, and that as they grow, mature, and form new
relationships, the child’s custodial homes may be altered. Thus, we disagree with defendant’s
assertion that the trial court, like the court in Fletcher v Fletcher, 447 Mich 871, 884; 526 NW2d
889 (1994), improperly focused on the “acceptability” of the parties’ homes, as opposed to their
permanence. Whereas in Fletcher, the trial court focused on whether either parent “would offer
acceptable custodial homes,” the court in the present case, to the extent that it noted that both
parties lived in “good stable homes,” did so only in the context of explaining that the facts
supporting its findings under factor (e) were similar to the facts supporting its findings under factor
(d). The court also emphasized the significance of each party having “backup” in caring for the
child, which it ruled “will be part of my order, that they have that backup in place and continue to
keep that backup in place.”
Factor (j) addresses “[t]he willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and the other
parent[,]” but precludes the court from considering negatively for the purposes of this factor “any
reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic
violence by the child’s other parent.” MCL 722.23(j).
Defendant argues that the trial court’s findings regarding factor (j) are “overwhelmingly
contrary to the great weight of the evidence.” The thrust of her argument is that she presented
ample evidence demonstrating that plaintiff had struggled with mental health and anger issues, he
used drugs, he beat his own dog, and he once displayed a firearm during an altercation with another
driver. As defendant acknowledges, MCL 722.23(j) expressly provides that “[a] court may not
consider negatively for the purposes of this factor any reasonable action taken by a parent to protect
a child or that parent from sexual assault or domestic violence by the child’s other parent.” At
trial, defendant explained that she initially limited plaintiff’s access to the child after the parties
separated because of her concerns about plaintiff’s drug use, emotional and verbal abuse, anger
issues, and how he spoke about himself with self-hate and references to suicide posted on social
media. And significant evidence was presented regarding the angry manner in which plaintiff
would speak in his text-message exchanges with defendant, the questionable statements that he
posted on social media, and that he once displayed a firearm at another driver. Therefore, to the
extent that the trial court faulted defendant for taking the child away from plaintiff, and not
working with him as the two began to co-parent the child, the trial court’s consideration of this
factor contravened MCL 722.23(j), which precluded the court from considering negatively
defendant’s reasonable action to protect herself and he child from the threat of domestic violence.
Accordingly, we are persuaded that the trial court erred by weighing factor (j) in favor of plaintiff.
In sum, while the trial court erred in its consideration of factor (j), we are not otherwise
persuaded by defendant’s other challenges to the trial court’s findings regarding the best-interest
factors, or her argument that the trial court abused its discretion by awarding the parties joint legal
and physical custody of the child and equal parenting time.
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Affirmed.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
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