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STATE OF MICHIGAN 

COURT OF APPEALS 

MEAGAN RACHEL EMMONS, formerly known 

as MEAGAN RACHEL VANCOURT, 

 Plaintiff-Appellant, 

UNPUBLISHED 

May 4, 2017 

v No. 335703 

Clinton Circuit Court 

JUSTIN ALLEN VANCOURT, LC No. 12-023474-DM 

 Defendant-Appellee. 

Before: O’BRIEN, P.J., and SERVITTO and STEPHENS, JJ. 

PER CURIAM. 

 Plaintiff appeals as of right the trial court’s order modifying the parties’ 2012 judgment 

of divorce regarding the parenting-time schedule. For the reasons stated in this opinion, we 

vacate and remand. 

I. BACKGROUND 

 On September 10, 2012, a consent judgment of divorce was entered, which provided that 

the parties have joint legal and physical custody of their then one-year-old daughter, TFV. The 

judgment provided that defendant would have parenting time for three hours in the evening on 

Tuesdays and Thursdays, and on alternating weekends from 8:00 a.m. on Saturday until 6:00 

p.m. on Sunday. On August 22, 2016, defendant moved to modify parenting time. Plaintiff 

argued that the motion was, in fact a motion for change of custody, not a request to modify 

parenting time, and that since there was no change of circumstances, it should be denied. 

 At a hearing on the motion, it was established that the parties verbally agreed in 2014 to a 

modified schedule. They agreed that defendant would have parenting time on Wednesday from 

4:00 p.m. until Thursday at 7:00 a.m. when TFV went to daycare and that defendant’s alternating 

weekend parenting-time schedule would begin at 4:00 p.m. on Fridays. According to defendant, 

the change occurred because both parents felt that TFV was having a hard time going back to 

plaintiff’s home so soon after getting to defendant’s home. Plaintiff testified that she agreed to 

change the schedule because TFV was very attached to defendant’s former girlfriend, Courtney, 

and the change would allow them more time to play together. Defendant acknowledged that 

TFV really appreciated and loved Courtney, whom he dated for two years. After they broke up, 
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defendant requested that plaintiff not let TFV see Courtney any longer. However, plaintiff 

continued to allow TFV to have contact with her. 

 Defendant testified that he worked 8 to 10 hours, from 5:00 or 6:00 a.m. until 2:30 or 

3:30 p.m., Monday through Friday. He explained that his home was five minutes away from 

plaintiff’s home and five minutes from his daughter’s elementary school, which she began to 

attend two weeks before the hearing. Both he and plaintiff used the same daycare facility. 

Defendant testified that when he has parenting time, his live-in girlfriend transported TFV to the 

daycare facility in the mornings. He claimed that his girlfriend had a very loving and supportive 

relationship with TFV. Defendant further claimed that the only time that TFV did not want to 

come to defendant’s home was when he had to pick her up directly from plaintiff’s care. He 

stated that plaintiff would exude a negative attitude, reassuring TFV that she only had to stay 

with defendant for one night. Plaintiff stated that she was only comforting TFV when she did 

not want to go to her father’s home, and that she encouraged her to go and have fun. 

 Plaintiff testified that defendant had never taken TFV to a medical appointment. 

Defendant testified that plaintiff scheduled the appointments during her parenting time. 

Defendant acknowledged that he used profanity in text messages to plaintiff, but denied using 

profanity in his household. Defendant also acknowledged that he was convicted in 2009 of 

“lewd and lascivious” behavior and was placed on probation, which he successfully completed. 

 Defendant thought it was in TFV’s best interests to have equal time in two stable 

households. Plaintiff thought it important for TFV to have a strong relationship with her father, 

but believed the existing schedule was appropriate. She did not believe that defendant should get 

more parenting time until he became more involved in TFV’s life. 

 The trial court found that TFV had an established custodial environment with both 

parties, noting that she was getting her material needs, guidance, discipline, and parental comfort 

from both parents. The court then stated that defendant was seeking to change the frequency and 

duration of parenting time, not the established custodial environment. The court found the 

following change of circumstances supported modification of the parenting time order: 

1) TFV was only one year old and breastfeeding when the consent judgment of divorce was 

entered; 

2) TFV could now walk and talk; 

3) TFV was just starting kindergarten; and 

4) Defendant had been trying to increase his parenting time consistently since 2014. 

 The court then applied the best interest factors, finding nearly all factors equal. It did 

however, find that the capacity and disposition of the parties to give guidance to the child 

slightly favored defendant because the court was concerned with plaintiff continuing to facilitate 

contact with defendant’s former girlfriend. The court also found that the “willingness and ability 

to facilitate and encourage a close and continuing parental relationship” factor favored 

defendant. The court was concerned with plaintiff’s comments to TFV before she was to spend 

time with defendant. The court also noted plaintiff’s unwillingness to consider more parenting 
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time for defendant. Finally, the court again noted that, at the time of the initial judgment, TFV 

was nursing, and highlighted defendant’s willingness to take less parenting time then with the 

expectation that he would be afforded more parenting time as the child got older. 

II. STANDARD OF REVIEW 

 This Court must affirm all custody orders unless the trial court’s factual findings, 

including findings on the established custodial environment and the child custody factors, are 

against the great weight of evidence, or the court’s discretionary decisions, including its custody 

determination, amounts to a palpable abuse of discretion, or the court commits a clear legal error 

on a major issue. MCL 722.28; Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 

(2009), quoting Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations 

omitted). Under the great weight standard, a trial court’s findings “should be affirmed unless the 

evidence ‘clearly preponderates in the opposite direction.’ ” Fletcher v Fletcher, 447 Mich 871, 

879; 526 NW2d 889 (1994), quoting Murchie v Standard Oil Co, 355 Mich 550, 558; 94 NW2d 

799 (1959). Additionally, this Court should not interfere with a trial court’s credibility 

determinations. Shann v Shann, 293 Mich App 302, 305; 809 NW2d 435 (2011). With respect 

to custody and other discretionary dispositional rulings, Fletcher, 447 Mich at 880, an abuse of 

discretion exists when the result is “so palpably and grossly violative of fact and logic that it 

evidences not the exercise of will but perversity of will, not the exercise of judgment but 

defiance thereof, not the exercise of reason but rather of passion or bias.” Id. at 879-880. Clear 

legal error occurs “when the trial court errs in its choice, interpretation, or application of the 

existing law.” Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). 

III. ANALYSIS 

 “The term ‘[c]hild-custody determination’ means a judgment, decree, or other court order 

providing for legal custody, physical custody, or parenting time with respect to a child. Childcustody determination includes a permanent, temporary, initial, and modification order....” 

Shade v Wright, 291 Mich App 17, 22; 805 NW2d 1 (2010) quoting MCL 722.1102(c). A court 

may modify a custody order if there is proper cause or a change of circumstances indicating that 

modifying the order is in the child’s best interests. MCL 722.27(1)(c). Proper cause exists if 

there are “appropriate grounds that have or could have a significant effect on the child’s life to 

the extent that a reevaluation of the child’s custodial situation should be undertaken.” Vodvarka 

v Grasmeyer, 259 Mich App 499, 511; 675 NW2d 847 (2003). A change of circumstances 

warranting a custody change exists if, “since the entry of the last custody order, the conditions 

surrounding custody of the child, which have or could have a significant effect on the child’s 

well-being, have materially changed.” Id. at 513. 

 “The framework for evaluating ‘proper cause’ or ‘change of circumstances’ when a party 

requests to modify a parenting time order depends on whether an established custodial 

environment is affected and the type of modification requested.” 1 Kelly, Curtis & Roane, 

Michigan Family Law (7th ed) (ICLE, 2011), § 12.33, p 679. 

[T]he rationale for imposing more stringent constructions on the terms “proper 

cause” and “change of circumstances” with respect to custody determinations is 
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far less applicable with respect to parenting time determinations. With respect to 

child custody disputes, “[t]he goal of MCL 722.27 is to minimize unwarranted 

and disruptive changes of custody orders, except under the most compelling 

circumstances.” Corporan v Henton, 282 Mich App 599, 603, 766 NW2d 903 

(2009). “Providing a stable environment for children that is free of unwarranted 

custody changes . . . is a paramount purpose of the Child Custody Act . . . .” 

Vodvarka, 259 Mich App at 511. Therefore, in the context of a child custody 

dispute, the purpose of the proper cause or change of circumstances requirement 

is “to ‘erect a barrier against removal of a child from an established custodial 

environment and to minimize unwarranted and disruptive changes of custody 

orders.’ ” Id. at 509, quoting Heid v AAASulewski (After Remand), 209 Mich App 

587, 593-594, 532 NW2d 205 (1995). 

Such concerns do not exist, however, when a modification of parenting time does 

not alter the established custodial environment because determinations regarding 

child custody and parenting time serve different purposes. Whereas the primary 

concern in child custody determinations is the stability of the child’s environment 

and avoidance of unwarranted and disruptive custody changes, the focus of 

parenting time is to foster a strong relationship between the child and the child’s 

parents. See MCL 722.27a. [Id. at 28-29.] 

While declining to define the proper cause or chance of circumstances necessary to change 

parenting time, the Court stated that normal life changes should be considered. Id. at 30. As it 

related to the child in Shade, beginning high school and seeking to become more involved in 

social and extracurricular activities constituted a change of circumstances sufficient to modify 

parenting time. Id. at 30-31. 

 “If a change in parenting time results in a change in the established custodial 

environment, then the Vodvarka framework is appropriate.” Shade, 291 Mich App at 27. Thus, 

which kind of proper cause and change of circumstances applies in this case turns on whether the 

trial court’s order altered the child’s established custodial environment. An established custodial 

environment can exist in more than one home. Rittershaus v Rittershaus, 273 Mich App 462, 

471; 730 NW2d 262 (2007). An established custodial environment is 

a custodial relationship of a significant duration in which [the child is] provided 

the parental care, discipline, love, guidance and attention appropriate to his age 

and individual needs; an environment in both the physical and psychological 

sense in which the relationship between the custodian and the child is marked by 

qualities of security, stability and permanence. [Baker, 411 Mich at 579-580.] 

An established custodial environment exists 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. 

The age of the child, the physical environment, and the inclination of the 

custodian and the child as to permanency of the relationship shall also be 

considered. [MCL 722.27(1)(c).] 
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Whether a custody order exists or which party has previously been granted custody is irrelevant 

to determining whether there is an established custodial environment. Hayes v Hayes, 209 Mich 

App 385, 388; 532 NW2d 190 (1995). “When a modification would change the established 

custodial environment of a child, the moving party must show by clear and convincing evidence 

that it is in the child’s best interest.” Shade, 291 Mich App at 23. 

 The trial court determined that the child had an established custodial environment with 

both parents. The parties had agreed to alter the original custody arrangement, such that 

defendant’s two evening sessions were combined into one overnight and his alternating weekend 

visitations included Friday evening. Both felt that this was in TFV’s best interests because she 

did not like leaving her father’s care so quickly during the evening sessions. Defendant testified 

that when the child was in his care, she would come to him for guidance and parental comfort. 

Defendant was employed, enabling him to provide basic necessities for the child. Moreover, the 

parties lived in close proximity to one another as well as TFV’s school and daycare facility, 

making her day-to-day schedule similar in each household. Given this evidence, it appears that 

each parent provided a secure, stable, and permanent environment for TFV. Since the evidence 

did not “clearly preponderate” in favor of an alternative conclusion, Fletcher, 447 Mich at 879, 

the determination that an established custodial environment existed with both parents was not 

against the great weight of the evidence, MCL 722.28. 

 The trial court’s order modifying parenting time significantly changed the amount of time 

TFV spent with each parent. The parties’ agreed-to-modification of parenting time in 2014 left 

plaintiff with 265 overnights and defendant with 100 overnights. The January 2017 child 

support order that followed the court’s modification of parenting time indicated plaintiff and 

defendant had an equal number of 182.5 overnights. In this case, even where the parties shared 

joint physical custody, a reduction from 265 overnights to 182.5 overnights would likely affect 

the custodial environment of plaintiff. That is a loss of 82.5 days or approximately 11 weeks of 

parenting time. In Lieberman v Orr, ___ Mich App ___, ___; ___NW2d ___ (2017) slip op at 

10 n 8, the Court reasoned that “In no world can a change from 225 overnights to 140 overnights 

be considered simply a change of parenting time and not a change in physical custody where the 

parties do not share joint physical custody. And if they do share joint physical custody, a 

reduction from 225 overnights to 140 overnights (85 days), would likely affect the established 

custodial environment[.]” Even in a case where the parties have joint physical custody and there 

is an established custodial environment with both parents, changes that “substantially reduce the 

time a parent spends with a child, [] would potentially cause a change in the established custodial 

environment.” Rains v Rains, 301 Mich App 313, 324; 836 NW2d 709 (2013). “Parenting time 

is the time a child spends with each parent.” Lieberman, ___ Mich App at ___; slip op at 7. An 

established custodial environment is one “of a significant duration,” Baker, 411 Mich at 579-580, 

that develops “over an appreciable time,” MCL 722.27(1)(c). A substantial reduction in the days 

spent between parent and child will naturally affect the established custodial environment. 

 Because the trial court’s parenting time order amounted to a change affecting the 

custodial environment, it committed clear legal error in its selection and application of the law 

from Shade v Wright. Instead, the court was required to conduct a parenting-time analysis using 

the proper threshold under Vodvarka. Lieberman, ___ Mich App at ___; slip op at 13-14. 

Accordingly, the parenting time order is vacated. If the court, on remand, finds by a 

preponderance of the evidence that defendant met the standards for “proper cause” or “change of 
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circumstances” under Vodvarka, defendant is then required prove by clear and convincing 

evidence that the parenting time modification is in the best interests of TFV. 

 Vacated and remanded. We do not retain jurisdiction. 

/s/ Colleen A. O'Brien 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens