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STATE OF MICHIGAN 

COURT OF APPEALS 

KELLY RAYMOND, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 21, 2015 

v No. 318646 

Wayne Circuit Court 

Family Division 

KEVIN RAYMOND, LC No. 09-114999-DM 

 Defendant-Appellant. 

Before: TALBOT, C.J., and MURPHY and GLEICHER, JJ. 

PER CURIAM. 

 Three years after the finalization of the parties’ divorce, the circuit court granted plaintiffmother’s request to modify the 50/50 parenting-time schedule and reduce defendant-father’s time 

with their two children. The court failed to make threshold findings regarding the children’s 

established custodial environment and the impact of the new parenting-time schedule. The court 

stated grounds “warrant[ing]” modification, but failed to connect those findings to a propercause or best-interest analysis. We therefore remand to the circuit court to conduct a continued 

hearing based on up-to-date information, after which the court must make specific findings. 

I. BACKGROUND 

 The parties’ 2010 consent judgment of divorce provided, “[T]he parties will share 

parenting time on a 50/50 basis, on a rotating bi-weekly schedule.” The parents enjoyed 

parenting time on alternating weekends and had custody for part of each school week. In 

January 2013, plaintiff-mother sought court modification of this schedule and requested a 

reduction in defendant’s parenting time. She alleged that the couple’s preteen daughter was 

afraid of her father and suffered anxiety as a result of travelling between households. Plaintiffmother accused defendant of consuming alcohol during parenting time, often to excess, and 

driving while intoxicated with the children in the car. Plaintiff notified the court that defendant 

had been convicted of driving while intoxicated 13 years earlier. Plaintiff also raised concerns 

about incidents of erratic and volatile behavior on defendant’s part. 

 At the referee hearing on plaintiff’s motion, defendant admitted that he does “drink a 

couple beers here and there, but that’s normal and legal.” The referee ordered defendant to 

submit to an alcohol assessment with Lannie McRill, a substance abuse assessment professional. 
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Defendant complied. The referee imposed an alternating weekend parenting time schedule in the 

meantime. 

 During the assessment, defendant self-reported moderate alcohol consumption, admitted 

drinking to excess on occasion, and denied ever driving with the children while intoxicated. 

Defendant even conceded to more excessive alcohol use while going through the divorce 

process. McRill opined: “Based on the procedures in this evaluation and the data available an 

alcohol disorder was not identified, however, episodic periods of binge alcohol use is noted.” 

McRill recommended “[a]n extended period of alcohol monitoring . . . to further evaluate Mr. 

Raymond’s alcohol consumption during parenting time.” McRill described defendant’s “alcohol 

use profile” as “a frequent alcohol consumer, who enjoys imbibing, is prone to moderate his 

alcohol intake and on occasion willfully binge[] consumes alcohol.” McRill recommended that 

defendant refrain from all alcohol use during parenting time and submit to random alcohol 

testing for a 12-month period. 

 The referee continued the hearing after submission of McRill’s report. A letter from the 

daughter’s therapist was presented to the court, indicating that the child was “thriving” under the 

new parenting-time schedule. Plaintiff-mother accused defendant of drinking around the 

children on St. Patrick’s Day weekend and engaging in a shouting match with his girlfriend in 

front of the children on Easter Sunday. Defendant denied the new allegations and emphasized 

that the parties’ son expressed a desire to spend more time, not less, with his father. At the 

conclusion of the hearing, the referee recommended reducing defendant’s parenting time from 

the original award to three weekends a month and Wednesday afternoons, with equal parenting 

time over the summer and holidays. The referee’s written recommendation and order continued, 

“The balance of the present order remains the same including no alcohol.” 

 Plaintiff-mother objected to the referee’s recommendations, asserting that they provided 

too little protection against defendant using alcohol in the children’s presence and allowed too 

little weekend time for the children with their mother. Following a hearing, the circuit court 

ruled that a modification of parenting time was warranted because the mental health of the 

parties’ daughter had improved under the modified parenting-time schedule, it was inconvenient 

to the children to constantly travel between the two homes, and because defendant could put his 

children at risk with his drinking. The court reduced defendant’s parenting time, allowing him 

alternating weekends and Wednesdays with the children during the school year. The court also 

ordered defendant to refrain from alcohol use beginning 24 hours before parenting time and to 

participate in random alcohol screens for a year. 

 Defendant now appeals on delayed leave granted. Raymond v Raymond, unpublished 

order of the Court of Appeals, entered February 19, 2014 (Docket No. 318646). 

II. ANALYSIS 

 A circuit court’s parenting-time orders must be affirmed on appeal absent factual findings 

against the great weight of the evidence or the commission of “a palpable abuse of discretion or a 

clear legal error on a major issue.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). 

The first step in considering a requested modification to a parenting-time order is to determine 

the children’s established custodial environment. Id. at 85-86. Where the proposed parenting 
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time adjustment would alter the established custodial environment, the proponent must present 

clear and convincing evidence that the change is in the child’s best interests. Id. at 86. If no 

change in the established custodial environment arises, the moving party need only prove by a 

preponderance of the evidence that the altered parenting-time schedule promotes the child’s 

interests. Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010). And any alteration of the 

established custodial environment must be justified by a showing of “proper cause or a change in 

circumstances” warranting such change. Dailey v Kloenhamer, 291 Mich App 660, 666-667; 

811 NW2d 501 (2011). 

A. ESTABLISHED CUSTODIAL ENVIRONMENT 

 The circuit court made no finding regarding the children’s established custodial 

environment. 

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).] 

This Court has described an established custodial environment as 

one of significant duration in which a parent provides care, discipline, love, 

guidance, and attention that is appropriate to the age and individual needs of the 

child. It is both a physical and a psychological environment that fosters a 

relationship between custodian and child and is marked by security, stability, and 

permanence. [Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008).] 

Importantly, “[a]n established custodial environment may exist with both parents where a child 

looks to both the mother and the father for guidance, discipline, the necessities of life, and 

parental comfort.” Id. at 707. 

 The parents shared equal parenting time with the children before the January 2013 

modification motion. Therefore, it is likely that the children looked to both parents “for 

guidance, discipline, the necessities of life, and parental comfort.” On remand, the circuit court 

must make this determination on the record, however. 

 The court also made no determination regarding the impact of the parenting-time change 

on the children’s established custodial environment. Obviously the amount of time shared 

between father and children has been reduced. Yet, the overall impact is not as black-and-white 

on the record. It is possible that the modification “will not change whom the child naturally 

looks to for guidance, discipline, the necessities of life, and parental comfort,” leaving the 

established custodial environment intact. Rains v Rains, 301 Mich App 313, 340; 836 NW2d 

709 (2013) (quotation marks and citation omitted). The proper evidentiary standard hangs on 

this determination. If there is no change in the established custodial environment, plaintiffmother bears a much lower burden of proof regarding the children’s best interests. See Shade, 

291 Mich App at 23. On remand, the circuit court must address the effect of the chosen 
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parenting-time modification on the children’s established custodial environment and instruct the 

parties regarding their burdens. 

B. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES 

 Regardless of the court’s failure to address the impact of the parenting-time modification 

on the children’s established custodial environment, it did cite grounds that could support proper 

cause to effectuate a change. Specifically, the court found: 

 [A]fter review of [the McRill] report and also the other evidence provided 

to the Court, the Court finds that a modification of the parenting time was 

warranted and is warranted. That there are . . . special circumstances regarding 

the [daughter], she is . . . receiving counseling and she has improved since there 

has been less back and forth parenting time. 

 Also . . . in looking at the reasonableness of abuse and neglect of the child 

during parenting time, Court finds that there is enough evidence that there is some 

– the – the drinking of the defendant could put the children at risk, to his inability 

to . . . control his drinking . . . so the court finds that it is warranted to adopt 

Lannie McRill’s recommendation. 

 And the Court’s [sic] also considering the inconvenience and burden of 

the children of going back and forth to [sic] much . . . between the parties. 

 The burden of proving proper cause or a change in circumstances is also affected by 

whether the parenting-time modification would alter the children’s established custodial 

environment. “[I]n a case where a modification of parenting time does not alter the established 

custodial environment,” “normal life changes” may present “a change of circumstances sufficient 

to modify parenting time.” Shade, 291 Mich App at 30-31. “Normal life changes” include 

things as simple as a growing child’s increased social or extracurricular activity schedule. Id. at 

29. If, on the other hand, the circuit court determines that the altered parenting-time schedule 

does change the children’s established custodial environment, the more stringent review 

applicable to child custody cases applies. Id. at 28-29. Under those circumstances, “proper 

cause means one or more 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). 

[T]o establish “proper cause” necessary to revisit a custody order, a movant must 

prove by a preponderance of the evidence the existence of an appropriate ground 

for legal action to be taken by the trial court. The appropriate ground(s) should be 

relevant to at least one of the twelve statutory best interest factors, and must be of 

such magnitude to have a significant effect on the child’s well-being. [Id. at 512.] 

To show a change in circumstances, “a movant must prove that, 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. 
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 The circuit court has already provided the foundation for this analysis. On remand, the 

circuit court should affirmatively state the applicable standard of review and place its factual 

conclusions into the appropriate legal context. 

C. BEST INTERESTS OF THE CHILDREN 

 Although the standard of review may vary depending on whether the parenting-time 

change will affect the children’s established custodial environment, one thing remains constant: 

the circuit court must consider whether the change is in the children’s best interests. MCL 

722.27a governs the award of parenting time. It mandates that parenting time “be granted in 

accordance with the best interests of the child.” MCL 722.27a(1) (emphasis added). In this 

regard, the parents enjoy a presumption that it is in the child’s best interests “to have a strong 

relationship with both of his or her parents.” Id. As long as this presumption is not disproved, 

the court must award parenting time “in a frequency, duration, and type reasonably calculated to 

promote a strong relationship between the child and the parent granted parenting time.” Id. In 

fact, “[a] child has a right to parenting time with a parent unless it is shown on the record by 

clear and convincing evidence that it would endanger the child’s physical, mental, or emotional 

health.” MCL 722.27a(3). 

 When considering a party’s parenting time request, the court “may consider” various 

factors outlined in MCL 722.27a(6): 

 (a) The existence of any special circumstances or needs of the child. 

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 (c) The reasonable likelihood of abuse or neglect of the child during parenting 

time. 

 (d) The reasonable likelihood of abuse of a parent resulting from the exercise 

of parenting time. 

 (e) The inconvenience to, and burdensome impact or effect on, the child of 

traveling for purposes of parenting time. 

 (f) Whether a parent can reasonably be expected to exercise parenting time in 

accordance with the court order. 

 (g) Whether a parent has frequently failed to exercise reasonable parenting 

time. 

 (h) The threatened or actual detention of the child with the intent to retain or 

conceal the child from the other parent or from a third person who has legal 

custody. . . . 

 (i) Any other relevant factors. 
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The best-interest factors of the Child Custody Act are also relevant in rendering a parenting time 

judgment. Shade, 291 Mich App at 31. Although the best interests of the child are the 

foundation for a parenting-time decision, the court need not consider each factor in MCL 722.23 

before ruling. Rather, the court may limit its MCL 722.23 best interest review to “findings on 

only the contested issues.” Shade, 291 Mich App at 31-32.1

 As quoted above, the circuit court did state certain circumstances that would be relevant 

to a best-interests analysis and found these “warranted” a parenting-time modification. 

Specifically, the court cited the daughter’s anxiety and need for counseling, “the inconvenience 

and burden of the children of going back and forth to much,” and evidence that defendant’s 

drinking may put the children at risk. Again, however, the circuit court failed to tie this 

information to any of the best-interest factors of either MCL 722.27a or MCL 722.23. 

 In completing its best-interest analysis, the circuit court should carefully consider 

defendant-father’s contention that McRill found no evidence of alcoholism in his report. And 

there is no evidence that defendant ever became intoxicated in the children’s presence. “This 

leads to the inescapable conclusion that father lost almost half of his parenting time because the 

children saw him drink, but not abuse, alcohol,” defendant argues. On the current record, this 

statement holds water; it appears that the circuit court reduced defendant’s parenting time and 

 

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 Of likely relevance to this matter, MCL 722.23 describes as factors to be considered under a 

best-interests analysis: 

(a) The love, affection, and other emotional ties existing between the parties 

involved and the child. 

(b) The capacity and disposition of the parties involved to give the child love, 

affection, and guidance and to continue the education and raising of the child in 

his or her religion or creed, if any. 

* * * 

(d) The length of time the child has lived in a stable, satisfactory environment, 

and the desirability of maintaining continuity. 

* * * 

(f) The moral fitness of the parties involved. 

(g) The mental and physical health of the parties involved. 

(h) The home, school, and community record of the child. 

(i) The reasonable preference of the child, if the court considers the child to be of 

sufficient age to express preference . . . . 
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imposed stringent limitations on his conduct during parenting time based on defendant’s legal 

conduct. Conduct that has no impact on the parent-child relationship or a parent’s ability to 

exercise appropriate judgment generally lacks relevance to a parenting-time decision. 

Nevertheless, alcohol use causing any impairment that carries over into parenting time is subject 

to restriction to serve the children’s best interests. The circuit court is in the best position to 

judge the credibility of the witnesses and we therefore decline to invalidate its current 

assessment. See Fletcher v Fletcher, 447 Mich 871, 889-890; 526 NW2d 889 (1994). However, 

if evidence that defendant’s alcohol use affects the children remains thin or nonexistant at the 

continued hearing, the circuit court should reconsider its order in this regard. 

 In relation to all issues on remand, we note that “the trial court ‘should consider up-todate information’ and ‘any other changes in circumstances arising since the trial court’s original 

custody order.’ ” Kessler v Kessler, 295 Mich App 54, 62-63; 811 NW2d 39 (2011), quoting 

Fletcher, 447 Mich at 889. The best interests of a child are always evolving and cannot be 

considered as if suspended at the time of the last hearing. 

 We remand for further proceedings consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Michael J. Talbot 

/s/ William B. Murphy 

/s/ Elizabeth L. Gleicher