ESTABLISHED CUSTODIAL ENVIRONMENT vs. PARENTAL PRESUMPTION
in Third Party Disputes
by Raymond Pater

Where there is a battle between the parents and a third party, most think that the parents should win.  The statute provides:

MCL 722.25  (1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.

It would seem that the parent wins in the absence of clear and convincing evidence to the contrary.   But although there is a presumption in favor of a parent, there is also a presumption in favor of an established custodial environment.

“MCL 722.27  The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”

Previously, Courts ruled that the presumption in favor of the parents was overcome by the presumption in favor of the established custodial environment and that burden of persuasion was on the parent challenging the established custodial environment in the home of the third party.

But those series of cases were overruled by the holding that  in a custody dispute between a parent and a third party with whom there is an established custodial environment, Michigan’s statutory parental presumption, MCL 722.25(1), must be given priority over the established custodial environment presumption, MCL 722.27(1)(c), and the third person must prove by clear and convincing evidence that all relevant factors, taken together, demonstrate that the child’s best interests require placement with the third person.   That burden changes if the parent is not fit or has neglected or abandoned the child, when the the parental preference does not apply.

A party is best represented in a custody case by an attorney that knows the law and works to aggressively protect your legal interest.

If retained as your attorneys, feel free to call us with your questions at 616.396.8883.  As your attorneys, we will try to keep you informed by providing you with copies of all correspondence and legal documents associated with your case whether they are received by this office or are produced by this office to be sent to the opposing party.  We will try to assist you during what may be a difficult time.