If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KELLY VAN ASSCHE,

Plaintiff-Appellant,

UNPUBLISHED

November 10, 2022

V No. 361568

Wexford Circuit Court

DEREK TATE, LC No. 2021-029870-DC

Defendant-Appellee.

Before: SAWYER, P.J., and MARKEY and SWARTZLE JJ.

PER CURIAM.

Plaintiff and defendant have two children together. Plaintiff wanted to move to Virginia 

and bring the children with her. So, she petitioned for primary physical, and sole legal, custody of 

the children. The trial court denied her motion. We affirm. 

The parties were never married, and they separated before the birth of the younger child. 

Plaintiff filed a petition to be awarded sole legal and primary physical custody of the older child, 

along with child support, and an “[o]rder that Plaintiff may move with the minor child to Virginia.” 

Defendant opposed plaintiff’s motion, requested joint legal and physical custody, and filed a 

counterclaim to establish parenting time and child support. Defendant’s paternity of both children 

is not in dispute.

After a Friend of Court referee recommended that plaintiff be awarded primary physical 

custody, the trial court held a de novo hearing and found that the older child had an established 

custodial environment with both parties while they lived together. As a consequence of their 

separation, however, that environment had been destroyed such that no established custodial 

environment existed with either parent. The trial court awarded the parties joint legal and physical 

custody of the children, and it denied plaintiff’s request to relocate out of state.

Plaintiff now appeals, challenging the trial court’s findings regarding the custodial 

environment of the older child and the best-interest factors for both children. As an initial matter, 

however, this Court notes that plaintiff withdrew her appeal regarding the trial court’s decision 

concerning domicile because “the parties reached a partial settlement providing that both parties 
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and the minor children will all relocate to Virginia” which “renders the portion of Appellant’s 

appeal and Appellee’s response related to the Trial Court’s decision denying the relocation moot.”

“A trial court’s findings regarding the existence of an established custodial environment 

and regarding each custody factor should be affirmed unless the evidence clearly preponderates in 

the opposite direction.” Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 

(2003) (cleaned up). “The movant...has the burden of proving by a preponderance of the evidence 

that either proper cause or a change of circumstances exists before the trial court can consider 

whether an established custodial environment exists (thus establishing the burden of proof) and 

conduct a review of the best interest factors.” Id. at 509. 

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. 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).]

The trial court acknowledged that the Friend of Court referee had found that the older child 

had an established custodial environment exclusively with plaintiff, but when the trial court 

considered the parties’ separation, and plaintiff’s relocation with that child from the family home 

to an apartment, the trial court found that the established custodial environment had been destroyed 

for both parents. The testimony was sufficient to demonstrate that the older child did not have a 

custodial environment with either parent because the change in circumstance left the child in an 

apartment with the expectation that she would be moving out of state.

Plaintiff argues that the trial court erred by stating that there was a custodial environment 

with defendant. This argument is misplaced because it does not address that the trial court, in fact, 

found that there was not a custodial environment with defendant. “Issues insufficiently briefed are 

deemed abandoned on appeal.” People v Van Tubbergen, 249 Mich App 354, 365; 642 NW2d 

368 (2002). Because the trial court found that the older child did not have an established custodial 

environment with either parent, plaintiff’s argument that the trial court erred by finding otherwise 

warrants no further consideration.

Next, plaintiff argues that the trial court erred when it found that she had not met her burden 

to demonstrate that the best-interest factors support her request for sole, legal custody or primary 

physical custody of the children. Specifically, plaintiff argues that defendant should not have had 

an advantage concerning MCL 722.23(d) and that the parties were not equal regarding MCL 

722.23(e).

In this case, after discussing the various factors, the trial court summarized its findings as 

follows: “[T]here is no advantage for either parent regarding Factors (a), (b), (e), (g), (h), (i), (k), 

or (l). Factor (c) and (f) slightly favored Plaintiff and Factor (b) [sic, (d)] slightly favors Defendant, 

while Factor (j) more significantly favors the Defendant.” 

Factor (d) concerns the “length of time the child has lived in a stable, satisfactory 

environment, and the desirability of maintaining continuity.” MCL 722.23(d). After finding that 
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the parties’ income and housing were similar, the trial court gave defendant the “slight advantage”

because he remained in the family home where the older child had lived. 

Plaintiff argues that the trial court placed too much emphasis on defendant’s remaining in 

the family home because defendant testified that he was seeking new employment in several cities 

and he had arranged for housing in Virginia. Plaintiff ignores, however, that defendant was 

arranging for housing in Virginia because plaintiff planned to move there. Nevertheless, at the 

time of the hearing defendant remained in the family home, which was a source of stability for the 

older child. The trial court’s finding a slight advantage to Factor (d) to defendant is not against 

the great weight of the evidence.

Factor (e) concerns the “permanence, as a family unit, of the existing or proposed custodial 

home or homes.” MCL 722.23(e). Plaintiff argues that moving to Virginia would present a more 

permanent family unit because the children would be closer to her extended family. The trial court 

correctly concluded that any move would provide a new situation that did not promise greater 

permanence than defendant’s current housing. Thus, the trial court’s finding that Factor (e) did 

not favor either party was not against the great weight of the evidence. 

Defendant argues that plaintiff ignored that Factor (j) was heavily in his favor. Plaintiff 

replied to argue that Factor (j) did not “more than slightly” favor defendant.

Factor (j) concerns “the moral fitness of the parties involved.” MCL 722.23(j). The trial 

court found that plaintiff either interfered, or did not cooperate, with defendant in creating 

scheduled parenting time. Further, plaintiff’s actions did not demonstrate a willingness to work 

with defendant in fostering a closer relationship with the children. Even though the trial court’s 

finding that defendant was not offered any overnight visits with the children was without 

evidentiary support, there was evidence to conclude that plaintiff had withheld defendant’s access 

to the children. For these reasons, it was not against the great weight of the evidence for the trial 

court to find that Factor (j) was in defendant’s favor.

Affirmed.

/s/ David H. Sawyer

/s/ Jane E. Markey

/s/ Brock A. Swartzle