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In Schubring v Schubring, 190 Mich. App. 468; 476 N.W.2d 434 (1991), the circuit court denied the noncustodial parent's motion to change custody, made when the custodial parent planned to move out of state, apparently because the children's "established custodial environment" was with the custodial parent.
Summary of this case from Harper v. HarperOpinion
Docket No. 133028.
Decided July 23, 1991, at 9:40 A.M.
Chartrand Badgley (by Robert L. Badgley), for Michele Schubring.
Peres, Lindsay Allen (by Douglas J. Lindsay), for Leonard Schubring.
Before: WEAVER, P.J., and MacKENZIE and GRIBBS, JJ.
Plaintiff mother appeals as of right from an order denying her motion to change custody of the parties' two minor children, Samantha Dawn, born January 31, 1979, and Courtney Ryan, born April 5, 1982. We reverse.
The parties were divorced in 1986. They were awarded joint legal custody, with physical custody being granted to defendant father. During the school year, plaintiff has had visitation every other week from Thursday through Monday at her home in Holly, about ten miles from defendant's home in Clarkston. During summer recess, the parties have shared custody on an alternating two-week schedule. Plaintiff has also frequently visited with the children at other, unscheduled times, including taking the girls to gymnastics classes on Saturday mornings when the girls were not visiting with her.
Both of the parties have remarried. Defendant and his current wife have another child, and the girls get along with their stepmother and enjoy their brother. The girls also get along well with plaintiff's current husband.
In February 1990, defendant decided to reenter the Air Force and was assigned to Homestead Air Force Base in Florida. Defendant then moved to change the children's domicile, and plaintiff responded with her motion to change physical custody. Following a hearing, a friend of the court referee recommended that physical custody of the children be changed so that plaintiff would have custody of the children during the school year and defendant would have custody during vacations. After reviewing the transcript of the hearing, the trial court declined to adopt this recommendation, and denied plaintiff's motion for change of custody.
Under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., a custody award may be modified on a showing of proper cause or change of circumstances which establishes that modification is in the best interests of the child. MCL 722.27; MSA 25.312(7). It is well settled that in determining the best interests of a child, a trial court must consider each of the factors contained in § 3 of the act, MCL 722.23; MSA 25.312(3), and state a conclusion on each. Arndt v Kasem, 135 Mich. App. 252, 255; 353 N.W.2d 497 (1984); Wilkins v Wilkins, 149 Mich. App. 779, 785; 386 N.W.2d 677 (1986). The failure to make such specific findings is error requiring reversal. Arndt, supra. The findings of fact should be reviewed by this Court under the clearly erroneous standard. See Beason v Beason, 435 Mich. 791, 798; 460 N.W.2d 207 (1990).
Before Beason, child custody decisions were considered de novo by this Court, and the evidence was examined apart from the trial court's findings of fact. See Outcalt v Outcalt, 40 Mich. App. 392; 198 N.W.2d 779 (1972). Because child custody decisions are fundamentally dispositional in nature, we are of the opinion that this de novo standard of review remains the appropriate standard for reviewing such decisions after Beason. Compare Burkey v Burkey (On Rehearing), 189 Mich. App. 72, 78-79; 471 N.W.2d 631 (1991). We therefore continue to "[exercise] independent judgment in passing upon the evidence" in child custody cases. Outcalt, supra, p 394.
Our de novo review in this case leads us to conclude that the trial court abused its discretion in determining that the best interests of the children dictated that they remain in defendant's custody and move to Florida. MCL 722.28; MSA 25.312(8). We are convinced that it was established by a preponderance of the evidence that a change in circumstances has occurred such that a change in custody is in the best interests of these children.
The trial court's conclusion that there was no custodial environment within the meaning of MCL 722.27(1)(c); MSA 25.312(7)(1)(c) is not challenged in this appeal. Thus, the appropriate standard of proof is the preponderance of the evidence rather than clear and convincing evidence.
The record shows that the children are thriving in their present environment. Their teachers indicated to the friend of the court field investigator that the girls are doing well in school. They are involved in a number of social activities and extracurricular educational activities. They are well adjusted and comfortable in both school and social settings. If they resided with plaintiff, they would be able to continue to live in the same community. Plaintiff has made arrangements for them to attend the same schools and will move if necessary to assure ongoing attendance in Clarkston schools. The girls would be able to participate in the same extracurricular activities, and maintain their present social relationships. A change in custody would preserve the highly successful status quo as much as possible under the circumstances. It would also provide these girls continuity and significantly more stability than the move to a military base in Florida that would result if custody were continued with defendant. Under these circumstances, we are convinced that the trial court abused its discretion in failing to change custody to plaintiff during the school year.
Reversed.