Established custodial environment found where one parent had children 2 overnights/week

The Michigan Court of Appeals decided a case on April 19, 2007 and affirmed a lower court’s ruling that there was an established custodial environment with the plaintiff mother despite the fact that the children resided primarily with her over the three years preceding the ruling and spent about 2 overnights per week with their father.

The parties were married in 1997 and twins were born ot them in April 2002. It is undisputed that the mother spent the first two years as the children’s primary caregiver. Plaintiff mother filed for divorce, and a judgment was entered in August 2003 giving them temporary joint legal custody pending the outcome of an FOC investigation. Considerable delay then occurred.  

A bench trial on the issues of custody began in August 2005 and did not conclude until March 2006—nearly three years after the entry of judgment. Following the trial, the trial court found an established custodial environment with both parents and awarded them joint physical custody. Plaintiff Mother appealed, claiming that it was error for the trial court to find the ECE with both parents when the children had lived primarily with her for the past three years.

The court of appeals took a careful look at the evidence and found that the ECE did, factually, belong with both parties. According to the COA, “it appears that over an appreciable time, the children naturally looked to both parents for guidance, discipline, the necessities of life, and parental comfort. We cannot conclude that the evidence preponderates in the opposite direction.”

It’s worth taking a look at the opinion so that you can see the types of parent-child contact that courts will rely upon in finding that both parents have an ECE with the children. You can read Gibson v Gibson here.

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Technorati tags: Joint custody, child custody, established custodial environment
 

Comments

[Jeanne M. Hannah]

Marie, your question involves a complicated area of the law with which I have great familiarity. In fact, I not only write about it, but I teach it to other lawyers and judges. I would be happy to schedule a telephone conference / consultation with you. Please call my office. Jeanne M Hannah

[Marie Pinto]

My son has been living with me in Michigan for almost 6 mos and going to school. Can my exhusband keep him even if I dont have custody? He let him live here and go to school to see if he would do better here than in Az but now hes trying to keep him in Az because he changed his mind? The judge in AZ still have jurisdiction or can I file here. My 14 year old wants to stay here and wasnt doing well in Az thats why my ex sent him here.Hes been here since Dec 25, 2009 and I was told by lawyers that I have custodial jurisdiction becuase as of June 25 it will be 6 mos? I need to know if I need to file an emergency pedition so my ex wont keep him?

[j]

The county court system gets around the ECE by making it look on paper as though the parenting time will not be changed by the judges decision to grant the move. Had a lot of information that showed it would not be in the kids best interest to allow the move, but judge would not hear any of it.