Wealton v. Wealton

120 Mich. App. 406 (1982) 327 N.W.2d 493

WEALTON
v.
WEALTON

Docket No. 62560.

Michigan Court of Appeals.

Decided October 7, 1982.

Steward, Peterson & Sheridan (by Paul A. Peterson), for plaintiff.

Heitman & Summers (by Michael G. Summers), for defendant.

Before: D.F. WALSH, P.J., and ALLEN and T. GILLESPIE,^[*] JJ.

PER CURIAM.

The contesting parties in this custody suit were divorced on November 27, 1974. There were three minor children, Ronald, Scott, and Douglas, whose ages were 12, 11, and 10 respectively in 1981. Custody of the three children at the time of the divorce was awarded to the plaintiff mother. Both parents have remarried.

By stipulation, an order was entered on June 1, 1981, granting temporary custody of Douglas, the youngest son, to the defendant father for the summer of 1981.

The father, toward the end of the summer, filed a petition for a change of permanent custody of Douglas. Apparently, this was done at the request of Douglas, who, all admitted, desired to live with his father and stepmother.

A hearing was held on August 17, 1981. Testimony disclosed that the father had an unusual amount of extended visitation, perhaps one-third of the year with all of his sons. He testified that if Douglas were to live with him he could provide a separate room, and transportation and access to some activities that the mother could not provide. He had also promised Douglas a dog. There was testimony that Douglas related well to his stepmother and that at times he quarreled with his natural mother. The father did concede that Douglas received adequate care from his mother.

At the close of the defendant father's proofs, the trial court granted plaintiff's motion to dismiss the defendant's petition. The court, in arriving at its judgment, assumed without finding that the established custodial environment, as defined by the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., was with the mother and then applied the clear and convincing evidence rule. The court also reviewed 8 of the 11 specifically identified factors required by § 3 of the Child Custody Act of 1970, MCL 722.23; MSA 25.312(3), finding generally that the parties were equal except for the preference of Douglas to live with his father.

Prior to passage of the Child Custody Act of 1970, the criteria for determination of a child's best interests were largely subjective and dependent upon the philosophy of the hearing judge.

The passage of the Child Custody Act of 1970 was an effort by the Legislature to standardize the criteria for determining the best interests of the child. Baker v Baker, 411 Mich. 567, 576; 309 NW2d 532 (1981).

Michigan appellate courts have enforced this legislative intent by requiring trial courts to make specific findings on each of the 11 factors and arrive at custody decisions based on the sum total of these factors. Carnes v Sheldon, 109 Mich. App. 204, 218; 311 NW2d 747 (1981); Currey v Currey, 109 Mich. App. 111, 117; 310 NW2d 913 (1981); Speers v Speers, 108 Mich. App. 543, 545; 310 NW2d 455 (1981).

Once a decision on custody has been made, the trial court's authority to modify its previous order is limited to changing an "established custodial environment" only when it is presented with "clear and convincing evidence that it is in the best interest of the child". MCL 722.27(c); MSA 25.312(7)(c).

The first step in considering a change of custody petition is to determine whether an established custodial environment exists. It is only then that the court can determine what burden of proof must be applied. Baker v Baker, supra, p 579; DeGrow v DeGrow, 112 Mich. App. 260, 265; 315 NW2d 915 (1982).

In this case, the court did not make a finding as to the established custodial environment. The court cannot presume an established custodial environment by reference only to a custody order, but must look to the actual circumstances of each case, guided by the standardized criteria. In light of the fact that Douglas had spent perhaps more of the year 1981 with his father than with his mother, such a finding was necessary. The fact that a custody order is labeled "permanent" or "temporary" does not eliminate the requirement that the established custodial environment be determined. Blaskowski v Blaskowski, 115 Mich. App. 1; 320 NW2d 268 (1982); Berman v Berman, 84 Mich. App. 740, 747-748; 270 NW2d 680 (1978), lv den 404 Mich. 828 (1979).

Child custody cases are tedious and slow. The evidence tends to be cumulative and repetitive. The trial court does have discretion to discourage cumulation and repetition. The court must hear and evaluate all evidence presented in an inquisitorial proceeding and satisfy itself that it is deciding in the child's best interests. It must also leave a record to review. In re Custody of James B, 66 Mich. App. 133, 134; 238 NW2d 550 (1975).

This case requires a full hearing. The trial court did not make a finding as to whether there was an established custodial environment. It did not make a finding on each of the 11 mandatory best interests factors required by the Child Custody Act of 1970, as amended. A remand is necessary. Lesauskis v Lesauskis, 111 Mich. App. 811, 816; 314 NW2d 767 (1981).

Reversed and remanded for a new trial and a full hearing with instructions to develop a record as herein suggested.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.