From Thursday's opinion in Bofysil v. Bofysil, by Michigan Court of Appeals Judge Elizabeth L. Gleicher joined by Judges Mark J. Cavanagh and Jane M. Beckering:

This error influenced the applicable burden of proof and permeated the court's assessment of the child's best interests. Accordingly, we affirm in part the judgment of divorce, but vacate the custody award and remand for further proceedings….

In this case, the trial court found that the young child had an established custodial environment only with defendant Sarah Bofysil, largely because Sarah "was the stay at home mom while the parties were together" and the child "is with her the majority of the time." It was error to discount the role of the child's other parent, plaintiff Bridget Bofysil, simply because Bridget worked outside the home to support her family.

A recent Pew Research study reports that in 2016, 18% percent of parents in America stayed home to raise their children. Twenty-seven percent of mothers elected stay-at-home parenting. Livingston, Stay-At-Home Moms and Dads Account for About One-In-Five U.S. Parents, For one parent to stay home to raise the children, the other must go out into the world and generate an income to support the family. Does working outside the home compromise a parent's ability to forge and maintain a strong, healthy relationship with her children? What if both parents work outside the home? Is the child essentially without a parent truly committed to parenting and all that the job entails?

Before making a custody determination, the trial court must determine whether the child has an established custodial environment with one or both parents, which "is an intense factual inquiry." An established custodial environment is one "of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence." "An established custodial environment may exist with both parents where a child looks to both … for guidance, discipline, the necessities of life, and parental comfort."

Determining a child's established custodial environment is a pivotal step in a custody battle because it installs the burden of proof. If a proposed change would modify the child's established custodial environment, the proponent must demonstrate by clear and convincing evidence that the proposed change is in the child's best interests. If the proposed change would not modify the established custodial environment, the proponent need only demonstrate by a preponderance of the evidence that the proposed change is in the child's best interests. If a child has an established custodial environment with both parents, neither parent's custody may be disrupted absent clear and convincing evidence that the change is in the child's best interests.

Here, the court determined that AB had an established custodial environment exclusively with Sarah. Therefore, Sarah was only required to establish by a preponderance of the evidence that granting her sole physical custody was in AB's best interests, and Bridget had to prove by clear and convincing evidence that granting her sole physical custody would be best for her child. Left unsaid was that Bridget would have to prove by clear and convincing evidence that even shared custody would serve AB's best interests.

The evidence preponderates against the circuit court's established-custodial-environment finding. Both parties agreed that from AB's January 2016 birth until Sarah left the home with AB in the middle of June 2018, both parents shared in the care of AB. Although Bridget worked outside of the home, she arranged her schedule to maximize her time home during AB's waking hours. Even Sarah conceded the Bridget was usually the one to make lunch for the family and that the whole family often would be present when Bridget took on side jobs training dogs. AB clearly had a homelife in which both of her parents provided for her care and needs. Although AB may have looked to her parents to fulfill different needs and likely understood at some level their distinct household roles, both provided her with "security, stability, and permanence."

The circuit court apparently contemplated that its established-custodial-environment determination might not withstand appellate scrutiny. The court noted, "regardless of which standard applies, the Court finds that the evidence supporting the following custody determination is indeed clear and convincing." However, the court perpetuated its erroneous approach to the working parent throughout the judgment, faulting Bridget for her full-time employment outside the home by treating her as less than a full parent…. [J]ust as when determining AB's established custodial environment, the court's findings on many [of the best-interests-of-the-child] factors preponderated against evidence that Bridget was regularly and routinely involved in AB's daily care despite that she worked outside the home.

The court erroneously weighed factor (a) in Sarah's favor after finding that Sarah "has closer parental and emotional ties to [AB] than does [Bridget] by virtue of being able to spend significantly more time with her." The court similarly erred in weighing factor (b) in Sarah's favor based on its conclusion that Sarah "has been the primary caregiver and that her commitment to remain home with the child until she reaches school age, rather than place her in day care or the care of another, will enable her to be far better able to provide her with love, affection and guidance than [Bridget], who spends much of her days at work." The fact that the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child. Nor should that decision foreclose the result of a custodial disagreement if a relationship ends.

Despite treating Bridget as a less viable parent because she chose to work outside the home, the court declined to credit Bridget for her ability and willingness to earn an income and provide health insurance for her child. The court treated the parties equally under factor (c) after deeming child support and "the additional support [Sarah] receives from her family" as "more than sufficient to meet [AB's] material needs." We discern no rational reason to both punish and yet fail to credit a parent for financially supporting his or her family….

[We thus] cannot hold that the court acted within its discretion in awarding sole physical custody to Sarah with such limited parenting time to Bridget. Further proceedings with up-to-date information will be required to consider the custodial arrangement that best serves AB's best interests….