20241126_C370691_36_370691.Opn.Pdf ( 2024 )

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
KYLE EDWARD ARQUETTE, UNPUBLISHED
November 26, 2024
Plaintiff-Appellant, 10:38 AM
v No. 370691
Iosco Circuit Court
KATHRINE JOANNE CARR, Family Division
LC No. 23-003755-DC
Defendant-Appellee.
Before: YATES, P.J., and CAVANAGH and MARIANI, JJ.
PER CURIAM.
In this child-custody dispute, plaintiff appeals by right the trial court’s order awarding
defendant primary physical custody of the parties’ minor child, granting defendant’s motion to
change the child’s domicile, and establishing a parenting-time schedule.1 We affirm.
I. BACKGROUND
The parties are the biological parents of AJC, who was born in January 2015. The parties
briefly dated, but they ended their relationship shortly after defendant became pregnant with AJC.
Shortly thereafter, defendant moved from Michigan to Florida, where AJC was born. Following
AJC’s birth, the parties signed an affidavit of parentage (AOP) indicating that plaintiff was AJC’s
biological father. Approximately seven months after AJC was born, defendant returned to
Michigan with AJC to care for defendant’s ailing mother and, pursuant to plaintiff’s request,
explore the possibility of rekindling their relationship. The parties ultimately decided to remain
apart, and defendant maintained custody of AJC. After a few years had passed, however, the
parties were able to make arrangements without judicial involvement for plaintiff to visit AJC.
Although plaintiff exercised few to no overnights with AJC during the first few years of her life,
1
The order also referred the parties to the Friend of the Court for further investigation to establish
child support. Neither party challenges the award of child support on appeal.
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he slowly increased his overnights as the years passed and, by 2023, he exercised overnights every
weekend, every holiday, and every other week during the summer.
In June 2023, defendant received a job offer in Florida near her family and informed
plaintiff that she intended to accept the offer and move to Florida with AJC sometime that year.
Defendant provided plaintiff with a proposed parenting-time schedule that would alter the structure
of plaintiff’s parenting time but provide him with slightly more parenting time overall than he had
under the parties’ existing arrangement. Defendant also offered to cover all transportation costs
associated with getting AJC to and from Florida for plaintiff’s parenting time. Plaintiff repeatedly
refused defendant’s proposals and eventually, in July 2023, filed a motion seeking joint legal
custody, primary physical custody,2 an established parenting-time schedule, and child support.
Within a month, defendant filed a counter-complaint seeking joint legal custody, primary
physical custody, an established parenting-time schedule, child support, and permission to move
to Florida with AJC, 3 which plaintiff opposed. The parties agreed that there was no current court
order governing custody, parenting time, or child support and that the issues raised by both parties
were “very intertwined” because they all ultimately stemmed from defendant’s proposed move to
Florida with AJC. Defendant argued that the change-of-residence factors set forth in MCL
722.31(4) favored her proposed relocation, AJC had an established custodial environment only
with her, and the move would not change AJC’s established custodial environment. Plaintiff
argued that defendant could not show by a preponderance of the evidence that her requested move
satisfied the change-of-domicile factors, AJC had an established custodial environment with both
parties, the move would alter AJC’s established custodial environment, and defendant could not
show by clear and convincing evidence that the move was in AJC’s best interests.
The trial court conducted an evidentiary hearing in March 2024 to address all of the issues
raised, at which both parties testified, presented additional witnesses, and presented documentary
evidence.4 Shortly after the hearing, the trial court issued a written opinion detailing its findings
of fact and its conclusions regarding custody, parenting time, child support, and defendant’s
motion to change domicile. The trial court found that although plaintiff had “absented himself”
from AJC’s life when she was approximately nine months old, plaintiff and AJC had bonded
during recent years, and an established custodial environment existed with both parents. The trial
court noted, however, that the evidence clearly established that defendant had “had a primary role
in physically caring for and raising the child” and that plaintiff had “exercised more of a free time
role,” and it reviewed the best-interests factors set forth in MCL 722.23 under the preponderance-
of-the-evidence standard because defendant’s proposed custody arrangement and move to Florida
with AJC would not change these established custodial environments. After considering the best-
2
Plaintiff initially sought sole legal and physical custody of AJC but later acknowledged that he
and defendant agreed that they should have joint legal and physical custody of AJC.
3
Defendant later filed a separate motion to change domicile at the trial court’s direction.
4
Prior to the evidentiary hearing, the trial court noted on the record that it had to make an initial
custody determination before determining whether to grant defendant’s motion to change domicile
but that, given the relatedness of the issues, it believed that conducting a single evidentiary hearing
regarding both matters was the most efficient course of action.
-2-
interests factors, the trial court concluded that defendant had sufficiently established that
defendant’s primary physical custody of AJC was in AJC’s best interests. The court then
considered the change-of-residence factors set forth in MCL 722.31(4) and found that the factors
supported defendant’s motion to change domicile. Because it also found that the move to Florida
would not alter AJC’s established custodial environment with either parent, the court granted
defendant’s motion. Approximately two weeks later, the court issued an order that awarded joint
legal custody to both parties but primary physical custody to defendant, established a parenting-
time schedule that provided plaintiff “at least 93 overnights per year” and was in accordance with
“the 23rd Circuit Friend of the Court Guidelines,” and granted defendant’s motion to change
domicile. This appeal followed.
II. STANDARDS OF REVIEW
“In child-custody disputes, ‘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 the evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.’ ” Dailey v
Kloenhamer, 291 Mich App 660, 664; 811 NW2d 501 (2011), quoting MCL 722.28. This Court
applies “three standards of review in custody cases.” Stoudemire v Thomas, 344 Mich App 34,
42; 999 NW2d 43 (2022) (quotation marks and citation omitted). The trial court’s factual findings
are reviewed under the great-weight-of-the-evidence standard. Id. “A finding of fact is against
the great weight of the evidence if the evidence clearly preponderates in the opposite direction.”
Id. (quotation marks and citation omitted). “Questions of law are reviewed for clear legal error.
A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law.”
Id. (quotation marks and citation omitted). Discretionary rulings, including decisions regarding
custody or a change of domicile, are reviewed for an abuse of discretion. Id.; Moote v Moote, 329
Mich App 474, 477; 942 NW2d 660 (2019). “In child-custody cases specifically, an abuse of
discretion retains the historic standard under which the trial court’s decision must be palpably and
grossly violative of fact and logic.” Kuebler v Kuebler, ___ Mich App ___, ___; ___NW3d ___
(2023) (Docket No. 362488); slip op at 7 (quotation marks and citation omitted). Reviewing courts
should defer to the trial court’s superior ability to weigh evidence, assess credibility, and otherwise
evaluate a child’s best interests. Sabatine v Sabatine, ___ Mich ___, ___; ___ NW3d ___ (2024)
(Docket No. 165279); slip op at 5-6 (quotation marks and citation omitted). “[U]pon a finding of
error, appellate courts should remand to the trial court unless the error was harmless.” Fletcher v
Fletcher, 447 Mich 871, 882; 526 NW2d 889 (1994).
III. APPROPRIATE EVIDENTIARY STANDARDS
Plaintiff argues that the trial court committed clear legal error by failing to apply the clear-
and-convincing-evidence standard when making its custody and change-of-domicile
determinations. According to plaintiff, because the trial court found that an established custodial
environment existed with both parties, the court was required, as part of its custody and change-
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of-domicile determinations, to consider the best-interests factors set forth in MCL 722.23 under
this evidentiary standard.5 We disagree.
In making a custody determination, whether a proposed custody arrangement would alter
an established custodial environment dictates whether a trial court applies a clear-and-convincing-
evidence standard or a preponderance-of-the-evidence standard to its analysis of the best-interests
factors. As our Supreme Court has explained:
When considering an important decision affecting the welfare of the child, the trial
court must first determine whether the proposed change would modify the
established custodial environment of that child. In making this determination, it is
the child’s standpoint, rather than that of the parents, that is controlling. If the
proposed change would modify the established custodial environment of the child,
then the burden is on the parent proposing the change to establish, by clear and
convincing evidence, that the change is in the child’s best interests. Under such
circumstances, the trial court must consider all the best-interest factors because a
case in which the proposed change would modify the custodial environment is
essentially a change-of-custody case. On the other hand, if the proposed change
would not modify the established custodial environment of the child, the burden is
on the parent proposing the change to establish, by a preponderance of the evidence,
that the change is in the child’s best interests. [Sabatine, ___ Mich at ___; slip op
at 7 (quotation mark and citation omitted).]
Thus, the mere fact that a trial court finds that an established custodial environment exists with
both parents does not automatically require the clear-and-convincing-evidence standard. See id.Rather, before applying this higher evidentiary burden, the court must conclude that the proposed
custody arrangement would alter one or both of those established custodial environments. See id.That same basic point holds true under the legal framework that governs a trial court’s
consideration of a motion for a change of domicile:
First, a trial court must determine whether the moving party has established by a
preponderance of the evidence that the factors enumerated in MCL 722.31(4)
support a motion for a change of domicile. Second, if the factors support a change
in domicile, then the trial court must then determine whether an established
custodial environment exists. Third, if an established custodial environment exists,
the trial court must then determine whether the change of domicile would modify
or alter that established custodial environment. Finally, if, and only if, the trial
court finds that a change of domicile would modify or alter the child’s established
custodial environment must the trial court determine whether the change in
domicile would be in the child’s best interests by considering whether the best-
interest factors in MCL 722.23 have been established by clear and convincing
evidence. [Safdar v Aziz, 342 Mich App 165, 179; 992 NW2d 913 (2022), quoting
5
Plaintiff does not challenge the trial court’s finding that an established custodial environment
existed with both parents.
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Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709 (2013) (quotation marks
and ellipsis omitted; emphasis added).]
The trial court in this case found that an established custodial environment existed with
both parents, with defendant consistently acting as AJC’s primary caregiver and plaintiff
“exercis[ing] more of a free time role” throughout AJC’s life. The court also found that AJC had
“clearly relied on [defendant] for the most part, [and] disturbing that primary custodial relationship
would likely cause harm to the child.” The court further found that awarding primary physical
custody to defendant and permitting defendant to move to Florida with AJC “would not change
the relationships that the child knows” and thus would not alter the child’s established custodial
environments. Based on this, the court concluded that the preponderance-of-the-evidence standard
governed its analysis of the best-interests factors in its custody determination, see Sabatine, ___
Mich at ___; slip op at 7, and did not reach those factors in its change-of-domicile analysis, see
Safdar, 342 Mich App at 179.
Plaintiff argues that the trial court should not have made its custody and change-of-
domicile determinations without analyzing the best-interests factors under a clear-and-convincing-
evidence standard. According to plaintiff, this failure amounted to clear legal error because it
contravened MCL 722.1006, which is part of the Acknowledgment of Parentage Act, MCL
722.1001 et seq. As noted, the parties in this case executed an AOP that identified plaintiff as
AJC’s biological father. Accordingly, pursuant to MCL 722.1006, defendant, as AJC’s mother,
“automatically received initial legal and physical custody of” AJC. Sims v Verbrugge, 322 Mich
App 205, 214; 911 NW2d 233 (2017).6 MCL 722.1006 further provides that the initial grant of
custody to the child’s mother is “without prejudice to the determination of either parent’s custodial
rights” and “shall not, by itself, affect the rights of either parent in a proceeding to seek a court
order for custody or parenting time.”
Focusing on the phrase “without prejudice,” plaintiff argues that his custody claim was
inherently prejudiced because defendant had “relegated [plaintiff] to the role of a weekend parent
as a function of her sole legal custody” and the trial court “deferr[ed] to the existing ‘free time
role’ [defendant’s] choices had relegated [plaintiff] to” when making its determination. In order
to render his claim “without prejudice,” plaintiff contends, the trial court should have required
defendant to meet the clear-and-convincing-evidence standard in her requests for custody and
change of domicile. Plaintiff, however, misconstrues the statute and its proper interaction with the
trial court’s analysis in this case. The purpose of MCL 722.1006, as signaled by the phrase
“without prejudice,” is to ensure “that the initial grant of custody [under the statute] creates no
impediment should either parent wish to seek a judicial determination of custodial rights.” Foster
v Wolkowitz, 486 Mich 356, 366; 785 NW2d 59 (2010). Plaintiff was in no way impeded from
seeking a judicial determination of custodial rights at any point and, as evidenced by his motion
seeking custody and parenting time, he eventually did, in fact, seek out such a determination. And
6
That grant of initial custody, however, was by operation of law and was not the equivalent of a
judicial grant of custody, so no judgment or order regarding custody was issued as a result (or, for
that matter, otherwise existed at the time that this case commenced). See Sims, 322 Mich App at
211-212.
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plaintiff fails to meaningfully explain why MCL 722.1006 should be read to require the court to
apply a clear-and-convincing-evidence standard when making that determination, regardless of
what the child’s caregiving realities at the time may be. A trial court is required to consider a
child’s relationship with each parent “at the time of [its] custody determination” to determine
whether an established custodial environment with one or both parents “exists at the time [it] is
rendering its decision.” Sabatine, ___ Mich at ___; slip op at 10. So the trial court did in this case
when assessing the existence of and any impact on AJC’s established custodial environments. We
do not read MCL 722.1006’s “without prejudice” language to be in conflict with this legal principle
or to require the trial court to effectively ignore it and the actual circumstances of AJC’s caregiving
relationships at the time of its determination, as plaintiff seems to suggest.7
Plaintiff further contends that the custody arrangement and move to Florida would alter
AJC’s custodial environment with him because it “would necessarily put an end to the weekly
weekend parenting time that [he] had exercised” for the few years preceding it. Given the
geographical distance between the parties following the move, this is undoubtedly true, and we do
not dispute that plaintiff’s parenting-time schedule would necessarily be altered as a result. The
touchstone of an established custodial environment, however, is the relationship between the
parent and child, not simply when or how often a parent exercises his or her parenting time. See
id. at ___, ___; slip op at 6, 13 (noting that “[a]n established custodial environment depends upon
a custodial relationship of a significant duration” and that “[a]lthough the ‘physical environment’
of the child[] is to be considered in determining a child’s established custodial environment, it is
not the only factor, and it is not alone dispositive”) (quotation marks and citation omitted; emphasis
added); MCL 722.27(1)(c) (providing, in relevant part, that the “permanency of the relationship”
between the child and a parent must be considered when determining whether an established
custodial environment exists) (emphasis added). Moreover, it is AJC’s standpoint as the child
rather than plaintiff’s standpoint as a parent that controls the trial court’s analysis in this matter.
See Sabatine, ___ Mich at ___; slip op at 7. See also id. at ___ n 6; slip op at 15 n 6 (noting that
“the Legislature has decided that the best interests of the child prevail over procedural fairness to
the parents”) (quotation marks and citation omitted). The trial court abided by these principles in
concluding that an award of primary physical custody to defendant and a grant of her motion to
change domicile would maintain AJC’s existing relationships with each party and not alter the
child’s established custodial environments. Plaintiff may disagree with that assessment, but he
has not shown a reversible error in it or in the trial court’s application of it to the legal frameworks
governing its custody and change-of-domicile determinations. See Stoudemire, 344 Mich App at
7
Nor do we find merit in plaintiff’s position to the extent it is premised on the assumption that,
but for the AOP, AJC’s established custodial environment with him and/or defendant would have
been so different that the custody arrangement and move to Florida would amount to a change in
such environment(s). As the trial court recognized, plaintiff acknowledged that he had not
previously sought any custody or parenting-time order—something the AOP did not prevent him
from doing—and he testified that he had not had any issue with the parties’ existing caregiving
arrangement and only “filed this matter because he and [defendant] could not agree on terms of
her moving to Florida and he didn’t want her to leave.” We see no error in the trial court’s
assessment in this regard.
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42. Accordingly, we do not see merit in plaintiff’s claim that the trial court committed clear legal
error by not applying the clear-and-convincing-evidence standard as part of those determinations.
IV. INITIAL CUSTODY AWARD
Plaintiff argues that several of the trial court’s best-interests findings were against the great
weight of the evidence and did not support its decision to award defendant primary physical
custody of AJC. We disagree.
“To determine a child’s best interests, the trial court is required to consider the 12 best-
interest factors found in MCL 722.23, applying the appropriate standard of proof.” Kuebler, ___
Mich App at ___; slip op at 17. Plaintiff does not challenge the trial court’s findings regarding
best-interests factors (a) (love, affection, and other emotional ties), (f) (moral fitness), (g) (mental
and physical health), (i) (child’s reasonable preference), (k) (domestic violence), or (l) (any other
factor relevant to the particular dispute), all of which the trial court found favored the parties
equally. See MCL 722.23(a), (f), (g), (i), (k), (l). Plaintiff argues that the trial court’s findings
under factors (b) (capacity and disposition to give child love, affection, and guidance), (c) (capacity
and disposition to provide food, clothing, medical or remedial care, and other material needs), (d)
(length of time in a stable, satisfactory environment), (e) (permanence of existing or proposed
custodial home or homes), (h) (home, school, and community record), and (j) (willingness and
ability to facilitate and encourage relationship between child and other parent) were all against the
great weight of the evidence.8 See MCL 722.23(b)-(e), (h), (j). We will address each challenged
factor in turn.
Factor (b) addresses “[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.” MCL 722.23(b). In finding that this factor favored defendant, the trial
court noted that only defendant resided in AJC’s school district, had “taken care of the bulk of
work that goes with that,” and “indicated doing the things that [AJC] will need to be successful in
school.”9 We do not find that “the evidence clearly preponderates in the opposite direction” of the
court’s conclusion. See Stoudemire, 344 Mich App at 42. Plaintiff argues on appeal that defendant
did not involve him in parent-teacher conferences or AJC’s homework. Defendant testified,
however, that AJC had little to no homework prior to second grade and that, even now that AJC
was in second grade, she did not have any homework on weekends when she visited plaintiff.
Defendant further testified that plaintiff never asked her whether AJC had homework and that she
never did anything to prevent plaintiff from seeking out information about AJC’s school,
homework assignments, or parent-teacher conferences. Plaintiff testified that he made no effort to
do so in the three years that AJC had been in school because he and defendant had “been all right
until she wanted to move” and he otherwise trusted her ability to handle AJC’s school-related
8
Plaintiff also argues that the trial court’s findings under factors (b) and (h) were premised on
clear legal error, renewing his argument regarding MCL 722.1006’s “without prejudice” language.
For the reasons already discussed, we disagree with that line of argument.
9
There was no dispute during the proceedings that both parties were capable of providing AJC
with love, affection, and guidance.
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matters. Given the evidence presented, the court’s finding that defendant was more apt to provide
for AJC’s educational needs was not against the great weight of the evidence. See id.
Factor (c) addresses “[t]he capacity and disposition of the parties involved to provide the
child with food, clothing, medical care,” and other necessities, MCL 722.23(c), and the trial court
found that this factor favored defendant. The trial court found that both parties were “employed
and able to meet [AJC’s] needs,” noting that plaintiff had “the added income of his spouse” and
that defendant had “the added assistance of her family.” But the court also found that plaintiff’s
“testimony of buying clothes and toys [for AJC] didn’t seem to be more than gifts” and that
defendant had, “at times, been the only one caring for and supporting” AJC. Plaintiff argues on
appeal that he “has a substantially higher income” than defendant, thereby putting him in a better
financial position to provide for AJC than defendant, who, according to plaintiff, “has never been
able to financially or materially support AJC on her own” and “has minimal capacity to provide”
for AJC’s needs. The focus of the analysis under this factor, however, is the extent to which each
party has the “capacity and disposition to provide for the child[]’s material and medical needs,”
not “which party earns more money.” Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336(2008); see also Corporan v Henton, 282 Mich App 599, 606-607; 766 NW2d 903 (2009)
(explaining that “a parent with more modest economic resources is nonetheless entitled to equal
consideration in the child custody context, because if the parties are substantially different as to
economic circumstances, the trial court has ample power through its orders, if it be in the best
interests of the child or children, to equalize those circumstances”) (quotation marks, citation, and
alterations omitted).
In making its findings under factor (c), the trial court acknowledged that plaintiff was
financially better off than defendant, but it found that, despite this, defendant primarily provided
for AJC’s material and medical needs. The record supports this finding. Plaintiff testified that he
was the co-owner of a trucking company with a flexible schedule and a good income. Plaintiff’s
wife, with whom he lived, testified that she worked full-time and that she and plaintiff pooled their
income to support their household, which included AJC on weekends and plaintiff’s four other
children from other relationships. Several witnesses, including defendant, testified that defendant
maintained stable employment for six years as an assistant store manager, but she had received a
job offer in Florida that would substantially increase her income, provide flexible and remote work
opportunities, offer additional advancement opportunities in both her education and career, and
provide her and AJC with full medical, dental, and vision insurance. Testimony established that
although plaintiff occasionally took AJC to dental appointments and urgent care when required,
defendant handled nearly all of AJC’s medical needs. Testimony also established that although
plaintiff more recently began providing AJC with “toys and clothes,” defendant, either personally
or through the assistance of her family, had provided for nearly all of AJC’s material needs
throughout her life. Although there was evidence that both parents could provide for AJC’s needs,
there was also evidence that defendant had actually provided for AJC’s material and medical needs
for the bulk of AJC’s life. The trial court’s findings regarding this factor were not against the great
weight of the evidence. See Stoudemire, 344 Mich App at 42.
Factor (d) addresses “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity,” MCL 722.23(d), and it is “properly
addressed by considering the environments in which the child has lived in the past and the
desirability of maintaining the continuity of those environments,” Demski v Petlick, 309 Mich App
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404, 448-449; 873 NW2d 596 (2015). In finding that this factor favored the parties equally, the
trial court noted that defendant had “moved a few times in the past few years,” that plaintiff had
“recently had his home burn,” and that both parties were renting a home at the time of the hearing.
The trial court also noted that plaintiff was “unfaithful” to defendant when AJC was an infant, but
“[h]e ha[d] since married and [was] raising his other children with his wife.” We disagree with
plaintiff that the court’s finding regarding this factor was against the great weight of the evidence.
Defendant testified that she had moved four times since 2015 but that she had remained in the
Tawas area that entire time and, as a result, AJC’s schooling remained consistent. Plaintiff testified
that he had lived in the same home in Pinconning since 2016, but he, his wife, and his other children
had been residing in a rental home since his house burned down in December 2022. Plaintiff
testified that he intended to move back into his home after he finished rebuilding it, and defendant
testified that she intended to move to Florida and obtain a permanent home there. And, as the trial
court recognized, AJC had consistently lived with defendant given that defendant had been her
primary—and during many of her formative years, her only—caregiver, whereas plaintiff did not
involve himself in AJC’s life consistently until the few years preceding the custody hearing, during
which AJC spent weekends, holidays, and alternating weeks during summer and school breaks
with plaintiff. Beyond the number of defendant’s moves, plaintiff raises no real concern regarding
the satisfactory nature of AJC’s living environment with defendant, and the record reveals no
concerns regarding the suitability of that environment or obvious reasons that maintaining
continuity would not be desirable in this instance. Indeed, plaintiff testified he took no issue with
AJC’s living arrangements “until [defendant] wanted to move.” Accordingly, the trial court’s
finding that this factor favored both parties equally was not against the great weight of the
evidence. See Stoudemire, 344 Mich App at 42.
Factor (e) considers the “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 favored the parties equally
because both parties “seem[ed] stable in their housing and [were] able to provide a nurturing space
for [AJC].” In making its finding, the court noted that defendant had “been in a few homes, but
has been committed to raising [AJC],” that plaintiff “seem[ed] steady in his marriage relationship”
and AJC “gets along well with his entire family,” and that AJC had a strong bond with both parties.
Plaintiff relies on the same argument as he did for factor (d) and argues that defendant had moved
several times since 2015 and was therefore unable to provide a permanent custodial home for AJC.
The critical consideration under factor (e), however, is the permanence of the custodial or family
unit, so the fact that defendant physically moved is not material to this factor. See Brown v Brown,
332 Mich App 1, 21; 955 NW2d 515 (2020). In any event, the trial court’s finding regarding this
factor was not against the great weight of the evidence. Defendant testified that she was not in a
relationship. Plaintiff and his wife both testified that they had been married and lived together for
several years, they were raising plaintiff’s four other children together in their home, and AJC had
a good relationship with everybody in the household. Both parties indicated that their own family
unit was unlikely to change anytime soon. And, contrary to plaintiff’s argument on appeal, nothing
in the record suggests that awarding primary physical custody to defendant would have affected
AJC’s relationships with her siblings or with plaintiff. The trial court’s finding under this factor
was not against the great weight of the evidence. See Stoudemire, 344 Mich App at 42.
Factor (h) addresses “[t]he home, school, and community record of the child.” MCL
722.23(h). The trial court focused on AJC’s school and home record as there was no real
distinction between the parties regarding her community record. The court found that this factor
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favored defendant because AJC’s “entire school career” had been in Tawas, where she had always
lived with defendant, who had always been her primary caregiver. The court acknowledged that
defendant’s requested change of domicile would disrupt AJC’s home, school, and community but
noted that awarding primary physical custody to plaintiff “would too” because plaintiff resided in
Pinconning and intended to remain there and because plaintiff had never been AJC’s primary
caregiver. The court also noted that the parties had “never lived close enough for exactly split or
shared custody for a school aged child.” Plaintiff challenges the trial court’s finding on the same
grounds that he challenges the court’s finding under factor (b), but for the reasons already
discussed, those findings were not against the great weight of the evidence. For the same reasons,
the trial court’s finding under this factor was also not against the great weight of the evidence. See
Stoudemire, 344 Mich App at 42.
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
or the child and the parents.” MCL 722.23(j). The trial court found that this factor favored the
parties equally, stating, “The parties have worked together to make the long distances work for the
child. The parties got along way before needing the help of the Court. I don’t see any sign that
either party would withhold the child from the other parent.” The record supports the trial court’s
findings under this factor. Both parties testified that they had successfully established and
effectuated a consistent parenting-time schedule despite the fact that the parties were no longer in
a relationship and lived approximately one hour away from each other. Defendant testified that
she always encouraged AJC to have a nurturing relationship with plaintiff because she believed
that it was important for AJC to have her father in her life. Defendant also testified that she sent
AJC to plaintiff’s house for parenting time even when AJC insisted that she did not want to go and
that, on one occasion when AJC did not want to go to parenting time, she required AJC to call
plaintiff to tell him that. Although plaintiff testified that defendant frequently denied him
previously planned parenting time by changing plans “last minute” or refusing to send AJC to his
house, defendant denied ever doing so, and we defer to the trial court’s superior ability to assess
witness credibility. See Sabatine, ___ Mich at ___; slip op at 5-6. Defendant also testified that
she did not enroll AJC in any weekend extracurricular activities despite AJC’s desire to participate
in them, because it would interfere with plaintiff’s parenting time. Plaintiff also made clear
throughout his testimony that he trusted defendant’s parenting, had no issues with their custody
and parenting-time arrangement until defendant indicated that she wanted to move to Florida with
AJC, and only moved to establish custody and parenting time to keep defendant from leaving the
state. The record is clear that the parties have the willingness and ability to facilitate a close and
continuing parent-child relationship between AJC and the other party, and the trial court’s finding
regarding this factor was not against the great weight of the evidence. See Stoudemire, 344 Mich
App at 42.
In sum, the trial court’s findings under best-interests factors (b), (c), (d), (e), (h), and (j)
were not against the great weight of the evidence. The trial court therefore did not abuse its
discretion by awarding primary physical custody of AJC to defendant.
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V. CHANGE OF DOMICILE
Plaintiff argues that some, but not all, of the trial court’s findings under the change-of-
domicile factors were against the great weight of the evidence and did not support its decision to
grant defendant’s motion to change domicile. We disagree.
MCL 722.31 governs requests to change a child’s legal residence. MCL 722.31(1)
identifies the general rule and provides that “a parent of a child whose custody is governed by
court order shall not change a legal residence of the child to a location that is more than 100 miles
from the child’s legal residence at the time of the commencement of the action in which the order
is issued.” As discussed, a trial court’s first step when deciding a motion to change domicile is to
“determine whether the moving party has established by a preponderance of the evidence that the
factors enumerated in MCL 722.31(4) support” the motion. Safdar, 342 Mich App at 179. MCL
722.31(4), in turn, sets forth five factors that a trial court must consider:
(4) Before permitting a legal residence change otherwise restricted by
[MCL 722.31(1)], the court shall consider each of the following factors, with the
child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental relationship
between the child and each parent; and whether each parent is likely to comply with
the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
Of these factors, plaintiff only challenges the trial court’s findings regarding (b) and (c),
arguing that the court’s findings as to both were against the great weight of the evidence. We will
address each factor in turn.
Regarding factor (b), the trial court found that defendant had not been motivated to move
to Florida by a desire to frustrate or defeat the existing parenting-time schedule, noting that the
parties had successfully effectuated plaintiff’s parenting time without a court order “for the first
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nine years of [AJC’s] life,” that defendant had offered to “keep the [parenting-time] intact and . . .
pay for the travel,” and that plaintiff, by his own admission, had only filed for a custody and
parenting-time determination “so [defendant] wouldn’t be able to move.” In arguing that these
findings were against the great weight of the evidence, plaintiff relies on the same argument
presented for best-interests factor (j), MCL 722.23(j). As already discussed, the trial court’s
findings in that regard were not against the great weight of the evidence and, for the same reasons,
we conclude that the evidence does not clearly preponderate in the opposite direction of the trial
court’s findings with regard to change-of-domicile factor (b). See Stoudemire, 344 Mich App at
42. We also note that, as previously mentioned, there was significant evidence indicating that
defendant fostered AJC’s relationship with plaintiff and only sought to move to Florida with AJC
after she had received a job offer that would substantially improve her and AJC’s quality of life.
Additionally, defendant had suggested a new parenting-time schedule that included slightly more
parenting-time days for plaintiff than the existing custody arrangement had included, albeit
reorganized into fewer—but longer—periods of time. Defendant had also offered to pay for all
travel expenses associated with AJC’s trips to and from Florida for plaintiff’s parenting time. And,
by plaintiff’s own admission, he did not believe that defendant was trying to hurt his relationship
with AJC by moving to Florida. In light of this evidence, the trial court’s finding under this factor
was not against the great weight of the evidence. See id.
Regarding factor (c), the trial court found that defendant’s proposed long-distance
parenting-time schedule would adequately preserve and foster the parental relationships with AJC
and acknowledged that, although the structure of plaintiff’s parenting time would change because
of the distance between plaintiff and AJC following the move, the overall amount of his parenting
time would increase slightly. Plaintiff argues that this finding was against the great weight of the
evidence because the trial court failed to account for the “burdensome impact” of the increased
geographic distance between the parties. Plaintiff argues that because the distance between the
parties would increase from approximately 50 miles to 1,370 miles, he will no longer enjoy the
weekend parenting time that he had enjoyed under the parties’ previous arrangement. “Implicit in
factor (c),” however, “is an acknowledgement that weekly visitation is not practicable when
parents are separated by state borders,” and because equality between the old and the new visitation
plan “is not possible” following a change of domicile, “[t]he new visitation plan only need provide
a realistic opportunity to preserve and foster the parental relationship previously enjoyed by the
nonrelocating parent.” McKimmy v Melling, 291 Mich App 577, 583; 805 NW2d 615 (2011)
(quotation marks and citation omitted). As noted, the trial court acknowledged that the distance
between the parties would require a reconfiguration of plaintiff’s parenting-time schedule, but it
nonetheless found that this reconfiguration “would not change the relationships that [AJC] knows.”
Plaintiff contends that the new visitation plan would “destroy” AJC’s bond with him, but he fails
to explain why this reconfiguration (which would provide him with more overall parenting time
than he previously enjoyed) would necessarily do so, let alone why “the evidence clearly
preponderates in the opposite direction” of the trial court’s assessment. Stoudemire, 344 Mich
App at 42 (quotation marks and citation omitted). The trial court found that the new parenting-
time plan provided a realistic opportunity to preserve and foster the parental relationship
previously enjoyed by plaintiff, the nonrelocating parent, and “[t]his Court has previously opined
that perhaps extended periods of visitation will foster, not hinder, a closer parent-child
relationship.” McKimmy, 291 Mich App at 583 (quotation marks, citation, and alteration omitted).
Plaintiff’s argument also fails to consider “the use of modern technology,” such as phone and video
calls, which can alleviate “[t]he separation between a parent and a child.” Id. We therefore cannot
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conclude that the trial court’s finding under this factor was against the great weight of the evidence.
See Stoudemire, 344 Mich App at 42.
In sum, the trial court’s findings under change-of-domicile factors (b) and (c) were not
against the great weight of the evidence, and we find no merit in plaintiff’s claims of error to that
effect.
VI. PARENTING TIME
Lastly, plaintiff argues that the trial court committed clear legal error by failing to award
specific parenting time. We disagree.
Pursuant to MCL 722.27a(8), “[p]arenting time shall be granted in specific terms if
requested by either party at any time.” A party’s motion for specific parenting time may be in
writing or made orally at a hearing or trial. Pickering v Pickering, 268 Mich App 1, 6-7; 706
NW2d 835 (2005). Neither party in this case ever requested, either orally or in writing, that the
trial court impose a specific parenting-time schedule. Although defendant provided the court with
a proposed parenting-time schedule after the move to Florida, the record makes clear that
defendant provided the proposed schedule to plaintiff before the parties initiated these proceedings
and only offered it as evidence at the custody hearing to demonstrate her willingness and ability
to foster AJC’s parental relationship with plaintiff even after the move to Florida.
Regardless, the trial court ordered a sufficiently specific parenting-time schedule. A
parenting-time schedule is “specific” if it is “explicitly set forth,” “particular,” or “definite.” Id.
at 6 (quotation marks, citation, and alteration omitted). “ ‘Reasonable and liberal parenting time’
is plainly not a grant of parenting time in ‘specific’ terms.” Id. The court ordered that plaintiff
receive “at least 93 overnights per year” and that the parties’ parenting-time schedule adhere to the
“the 23rd Circuit Friend of the Court Guidelines.” The parenting-time schedule established by
these guidelines alternates holidays and major school breaks between the parties, evenly splits
yearly summer breaks between the parties, and makes defendant, as the custodial parent,
responsible for all of the transportation costs associated with parenting time. We fail to see how
this award of parenting time lacks the requisite specificity, and reject plaintiff’s claim of error to
that effect.
Affirmed.
/s/ Christopher P. Yates
/s/ Mark J. Cavanagh
/s/ Philip P. Mariani
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