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November 2, 2004
v No. 254392
Tuscola Circuit Court

LC No. 99-017986-DP


Plaintiff appeals by leave granted from an order that granted the parties joint legal
custody, and defendant sole physical custody, of their son, Chance Wellington Jaster LaPratt.
We affirm.
Plaintiff first argues that the trial court erred in finding that no established custodial
environment existed with plaintiff, which resulted in plaintiff bearing the burden to show by
clear and convincing evidence instead of by a preponderance of the evidence that a change in the
established custodial environment was in Chance?s best interests. We disagree.
This Court reviews a trial court?s findings of fact under a great weight of the evidence
standard. MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 877-879; 526 NW2d 889 (1994). A
trial court?s findings regarding the existence of an established custodial environment should be
affirmed unless the evidence clearly preponderates in the opposite direction. Phillips v Jordan,
241 Mich App 17, 20; 614 NW2d 183 (2000). In reviewing the trial court?s findings, this Court
should defer to the trial court?s determination of credibility. Mogle v Scriver, 241 Mich App
192, 201; 614 NW2d 696 (2000).
supra at 197. A custodial environment is established if

considered. [MCL 722.27(1)(c).] An established custodial environment is one of significant duration, one both physical and
psychological, in which the relationship between the custodian and the child is marked by
security, stability, and permanence. Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532
(1981); Mogle, supra.
The evidence in this case showed that both parties had been actively involved in their
child?s life since he was born. Chance resided with defendant since his birth, and plaintiff
regularly exercised his visitation and parenting rights and sought to be involved in Chance?s
daily care even before proceedings began. During the times that the parties resided together,
they shared responsibility for Chance?s care, and during the times Chance was in either party?s
sole care, they were individually and solely responsible for meeting his needs and providing his
day-to-day care. Further, both parties presented a substantial amount of evidence that Chance
looked to them for comfort, discipline, and guidance during the time that Chance was in their
However, Chance?s primary residence throughout his entire life had been with defendant.
Moreover, although Chance had regularly been in plaintiff?s care for short periods of time, the
amount of extended time that Chance had spent with plaintiff was limited. By the time Chance
was approximately eighteen months old, he had only spent three nights outside of defendant?s
care. Chance lived virtually exclusively with defendant during the first eighteen months of his
life, with the exception of the two short periods of time when the parties lived together in 1999.
Since June 2001, when he was approximately 2½ years old, Chance had spent three or four
consecutive days every other week in plaintiff?s care, but had spent the longer periods between
these visits in defendant?s care. Further, although plaintiff had enjoyed more extensive custody
of Chance during the summer since 2001, this extended visitation time only amounted to three
weeks total in addition to his regular parenting time, and only two of those weeks were
consecutive. Under these circumstances, we conclude that the trial court did not err in finding
that Chance had an established custodial environment with only defendant because the evidence
did not clearly preponderate in plaintiff?s direction. Mogle, supra.
Plaintiff?s argument that the court?s alleged error in failing to find that an established
custodial environment also existed with him resulted in the imposition of a higher burden of
proof is based on a false premise. If a custodial environment is found with both parties, the party
moving for a change in the custodial relationship must prove by clear and convincing evidence
that a change in custody in the best interest of the child. Foskett v Foskett, 247 Mich App 1, 6;
634 NW2d 363 (2001). It is only ?if the court finds that no established custodial environment
exists [with either party that] . . . the court may change custody if the party bearing the burden
proves by a preponderance of the evidence that the change? is in the best interest of the child. Id.
at 6-7. Therefore, the trial court also did not err in requiring plaintiff to meet the clear and
convincing evidence standard in order to obtain a change in Chance?s established custodial
environment. MCL 722. 27(1)(c).

Defendant next argues that the trial court abused its discretion when it granted sole
physical custody to defendant, because this award was not supported by the trial court?s own
findings of fact concerning the best interest factors. Again, we disagree.
?Above all, custody disputes are to be resolved in the child?s best interests,? Eldred v
Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001), as measured by the factors set forth in
MCL 722.23, id. However, a court need not give equal weight to all of the factors, but may
instead consider the relative weight of the factors as appropriate to the circumstances. McCain v
McCain, 229 Mich App 123, 130-131; 580 NW2d 485 (1998). To whom custody is granted is a
discretionary ruling. Fletcher, supra at 880. This Court reviews discretionary rulings under a
palpable abuse of discretion standard. Id. at 879. An abuse of discretion occurs when the result
is ?so palpably and grossly violative of fact and logic that it evidences not the exercise of will but
but rather of passion or bias.? Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810
(1959); see also Fletcher, supra at 879-880.
The trial court found the parties mostly equal under the majority of the ?best interest
factors.? MCL 722.23. Plaintiff was favored regarding the parties? physical and mental health
and regarding the parties? willingness and ability to facilitate a close and continuing relationship
between Chance and the other parent. However, the court concluded that defendant was favored
regarding the length of time Chance had lived in a stable, satisfactory environment and the
desirability of maintaining continuity. Ultimately, the court found that in light of the factor
favoring defendant and despite the factors in favor of plaintiff, plaintiff had not carried his
burden of proof under the clear and convincing evidence standard to justify a change in custody.
A trial court need not give equal weight to all of the factors, but may instead consider the relative
weight of the factors under the particular circumstances. McCain, supra at 130-131.
Under these circumstances, we find that the trial court?s grant of sole physical custody to
defendant was not so palpably and grossly violative of fact and logic that it evidences a
perversity of will, a defiance of judgment, or an exercise of passion or bias. Spalding, supra at
384-385. Accordingly, the trial court did not abuse its discretion when it awarded sole physical
custody of Chance to defendant.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Donald S. Owens

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