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Where a plaintiff has filed an appeal challenging an order granting the defendant sole legal custody of the parties’ youngest child, a remand is necessary for articulation of the trial court’s findings on the burden of proof.
“Plaintiff appeals by right the order granting defendant sole legal custody of the parties’ youngest child, AP, arguing that the trial court erred when it failed to (1) make a finding regarding whether the change in legal custody altered the child’s existing custodial environment, and (2) articulate what burden of proof applied to its custody determination. We affirm the trial court’s findings under the contested best-interest factors and under MCL 722.26a(1)(b), but remand for articulation of its findings on the burden of proof, and whether it was satisfied. …
“Plaintiff first argues that the trial court legally erred when it failed to articulate whether granting defendant sole legal custody of AP would modify his established custodial environment, and failed to articulate the applicable burden of proof for its decision. …
“It is true that the trial court did not articulate whether granting defendant sole legal custody would constitute a change in the child’s custodial environment, or which burden of proof it applied to its custody decision. And failing to do so constitutes error. … Yet, as described below, the trial court’s findings of fact were not clearly erroneous, and its conclusion that joint legal custody was not warranted under MCL 722.26a(1) was overwhelmingly supported by the record. …
“Nevertheless, despite there being no clearly erroneous finding of fact, our Court has been steadfast that the failure to articulate the burden of proof being applied is reversible error. … On remand, the court should articulate whether the proposed change to sole legal custody changed AP’s established custodial environment, and if so, whether it had granted defendant sole legal custody based upon clear and convincing evidence. …
“The trial court’s findings of fact under the contested best-interest factors are affirmed, as are the trial court’s findings under MCL 722.26a(1)(b). We remand for the trial court to state on the record whether the proposed change to sole legal custody for defendant would alter AP’s established custodial environment, and if so, whether its conclusion to award sole legal custody to defendant was based upon clear and convincing evidence.”
