Established Custodial Environment and Burdens of Proof

An established custodial environment (ECE) is a legal concept in Michigan defining a period of significant duration where a child receives care, discipline, and guidance from a parent. The child relies on this specific environment for security, stability, and basic needs. It exists if a child naturally looks to a custodian for guidance.

Key Aspects and Factors of an Established Custodial Environment:

• Time and Stability: The environment must have lasted for an "appreciable" period, demonstrating a stable, long-term relationship rather than a temporary arrangement.

• Child's Perspective: It is based on where the child feels secure and turns to for needs, rather than just the parent's desires.

• Parental Role: The custodian provides for the child’s physical needs, discipline, and emotional comfort.

• Evidence: Courts consider the child's age, physical environment, and the permanency of the relationship.

• Both Parents: An ECE can exist with one parent, or both, as long as the child feels secure in both settings.

• Legal Significance: If an ECE exists, a higher burden of proof—"clear and convincing evidence"—is required to change the custody arrangement, which protects the child's stability.

As noted above, if there is an established custodial environment, then the court will not change custody unless there is clear and convincing evidence that it is in the best interests of the child to do that.

“The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. 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)

If there is no established custodial environment the burden of proof is a “preponderance of the evidence,”. That means that something is more likely than not.

Clear and convincing evidence means evidence that does more than just merely persuades you that a change in custody is probably best. To be clear and convincing, the evidence must be strong enough to cause you to have a clear and firm belief that a change in custody is warranted. This means if the judge is  equally persuaded by both sides, that the change in custody request will likely not be granted by the Court.

The burden of proof in child custody cases is very complex.  Establishing what that burden is and presenting enough evidence to meet the standard in accordance with the Michigan Rules of Evidence is not something that should be attempted without an attorney.  In fact, even attorneys hire attorneys to represent them in these types of cases because it’s difficult to have good judgment when your emotions are intense.   

We serve clients all over the State of Michigan, including the counties of Arenac, Bay, Clare, Genesee, Gladwin, Huron, Iosco, Isabella, Midland, Ogemaw, Oscoda, Roscommon, Saginaw and Tuscola.

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