In Pierron v. Pierron, 2010 Mich. LEXIS 884 (May 11, 2010), the issue was whether a proposed change of school by a mother that is sixty miles from the children’s present school would modify the established custodial environment of the children as defined in MCL 722.27(c). The established custodial environment is the environment that over a substantial amount of time a child naturally looks to for “guidance, discipline, comfort, and the necessities of life.” In 2000, a divorce judgment granted the plaintiff-father and defendant-mother joint legal custody and established the children’s primary residence with the mother. Until 2007, plaintiff, defendant and their children resided in Grosse Pointe Woods. In 2007, the defendant-mother relocated to Howell and attempted to enroll the children in the Howell schools, approximately sixty miles from Grosse Pointe Woods and plaintiff objected.

After a six-day evidentiary hearing, the trial court ruled the defendant’s proposed change of schools would interfere with the plaintiff’s parenting time and would thereby modify the children’s established custodial environment. However, the Court of Appeals reversed the trial court’s order and held the established custodial environment would not be modified. The case was remanded to the trial court to reexamine the issue of changing schools and establish whether the defendant demonstrated by a “preponderance of evidence” that the change was in the children’s best interest. Plaintiff appealed to the Michigan Supreme Court, which affirmed the judgment of the Court of Appeals.

The Court’s Analysis. The Child Custody Act provides that when parents share joint legal custody, the parents share decision-making authority as to the important decisions that affect the welfare of the child. MCL 722.26a(7)(b). Therefore, the court must first consider whether defendant’s proposed school change would modify the established custodial environment. The Michigan Supreme Court agreed with the Court of Appeal’s conclusion that the proposed change would not alter the established custodial environment because it would only require minor adjustments to plaintiff’s parenting time. The Court determined that plaintiff’s weekend parenting time would not be affected because the children did not visit overnight on weeknights during the school year. The sixty-mile distance was not so inconvenient to prevent the plaintiff from occasional midweek visits.

Without a change in the established custodial environment, the heightened evidentiary burden of “clear and convincing evidence” does not apply to the proposed change. The defendant was required to prove by a preponderance of evidence that the change of school would be in the best interests of the children and the court must consider the best interest factors in MCL 722.23. Where there is no change in the established custodial environment, although the trial court must determine whether each of the factors apply, if a particular factor is irrelevant to the issue, such as a proposed school change, the may simply indicate the factor is irrelevant. However, if the proposed change would alter the established custodial environment then it is a change in custody and the court must consider all the best interest factors.

Partial Concurrence and Dissent. Justice Corrigan, concurring in part and dissenting in part, agreed with the majority that all twelve best interest factors may not be relevant to the specific decision and the trial court must at least consider the applicability of all factors. However, the dissent would support the trial court’s finding that the proposed change of school would modify the established custodial environment. The dissent argued that the Court of Appeals erred in its conclusion that the trial court’s finding was against the great weight of the evidence. Instead, the trial court’s factual findings were overturned despite evidence that clearly preponderated in the opposite direction.

Justice Corrigan maintained that the defendant’s move to Howell would deprive both parents of involvement in their children’s “education and discipline” thereby resulting in a single-family household with defendant. Here, plaintiff played an active role in the children’s education and moving them to Howell would be contrary to the terms of the judgment of divorce granting equal decision-making to both parents. The plaintiff was more than just a “weekend parent” and moving the children sixty miles away would modify the established custodial environment and prevent plaintiff’s ability to provide guidance for the children. Furthermore, the record included instances where the defendant exhibited a lack of interest and care for the children’s education. As a result, the dissent argues that the evidence did not clearly preponderate against the trial court’s finding and the Court of Appeals erred in its application of the “great weight” standard.