Background
Michael and Kimberly Gordon divorced in November 2021 after a marriage that produced four children, three of whom are minor daughters now between ages 11 and 16. The judgment of divorce awarded the marital home to Michael and established a week-on/week-off parenting schedule. The parties briefly attempted reconciliation — Kimberly moved back into the marital home in May 2022 — but separated again in July 2024 when Kimberly began a new relationship and moved in with her significant other.
The July 2024 separation triggered a breakdown in co-parenting. Both parties filed competing motions for full physical custody, each leveling serious allegations against the other. The trial court denied both motions and referred the matter to a referee. Following mediation, the court entered a November 2024 Interim Order requiring reunification therapy with a licensed clinical social worker and establishing a specific parenting-time schedule for Kimberly, including every Saturday beginning December 7, 2024. Despite this order, Kimberly received only 23 total hours with the children between July 2024 and the March 2025 evidentiary hearing — spanning approximately 32 weeks — as the children repeatedly refused to go to her home and Michael failed to impose meaningful consequences or bring them back.
At the March 2025 referee hearing, evidence showed that Michael appeared at the children’s school on Kimberly’s parenting days and allowed the children to choose whether to attend her parenting time without consequence. Witnesses testified to no specific, articulable safety concern at Kimberly’s residence. The reunification therapist testified that the girls needed their mother, while noting that at least one child’s statements to her “sounded scripted.” Kimberly also alleged a physical altercation during an exchange and testified that Michael undermined her discipline of the children.
The Court’s Holding
The Michigan Court of Appeals affirmed the trial court’s June 25, 2025 order adopting the referee’s recommendation in full (with a minor reduction in the contempt fine from $1,000 to $100). The court upheld the award of primary physical custody to Kimberly, with joint legal custody continuing, and Michael’s parenting time reduced to every other weekend. The court found no findings of fact against the great weight of the evidence, no palpable abuse of discretion, and no clear legal error on any of Michael’s three claims.
On the established custodial environment question, the court held that the trial court correctly looked to the totality of the parties’ co-parenting history — not just the children’s physical placement at the time of the hearing — in finding that an established custodial environment existed with both parents. Under MCL 722.27(1)(c), an established custodial environment turns on whether a child naturally looks to the custodian for guidance, discipline, necessities, and comfort over an appreciable time; physical environment alone is not determinative. Because both parents shared that environment over years of co-parenting, the higher clear-and-convincing-evidence standard applied to the best-interest analysis, and Kimberly met it.
On the best-interests analysis, the court rejected Michael’s argument that the trial court improperly based its custody modification “almost exclusively” on parenting-time denials. The court distinguished between using a court-order violation as a freestanding basis for custody modification (impermissible) and using a parent’s underlying conduct and behaviors — showing up at school on Kimberly’s days, refusing to enforce consequences, allowing the children to choose whether to attend parenting time — as evidence bearing on statutory best-interest factors (b), (f), (j), (k), and (l) (permissible). On the in camera interview issue, the court found that plaintiff had not established any record evidence that the referee exceeded the permissible scope of a preference inquiry under MCL 722.23(i).
Key Takeaways
- A parent’s willful, sustained interference with the other parent’s court-ordered parenting time — even without a formal finding that the conduct itself compels a custody change — is highly probative evidence on multiple best-interest factors, including moral fitness (Factor f) and willingness to facilitate the child’s relationship with the other parent (Factor j).
- An established custodial environment is assessed by the totality of the parent-child relationship over an appreciable time, not solely by the child’s physical placement at the time of the hearing; a recent breakdown in contact engineered by one parent does not automatically eliminate the other parent’s established custodial environment.
- Where an established custodial environment exists with both parents, the court must apply the clear-and-convincing-evidence standard to a motion to change primary physical custody — and that standard can be met even over the objections of children who express a preference to remain with the other parent, particularly where there is evidence of scripted statements or parental manipulation.
- A parent who allows minor children to dictate compliance with court-ordered parenting time, without imposing meaningful consequences, risks being found in contempt and having custody modified against them, regardless of the children’s stated preferences.
Why It Matters
This decision reinforces Michigan’s strong appellate deference to trial court findings in custody disputes and illustrates the legal risk a custodial parent assumes when, even with apparent sympathy from the children, that parent passively or actively obstructs the other parent’s court-ordered time. The opinion makes clear that a pattern of allowing children to “choose” compliance with parenting orders — without consequence — can satisfy multiple best-interest factors weighing against that parent, even if no single act constitutes a technical violation of a specific court order.
The case also offers a useful reminder on the established custodial environment doctrine post-Sabatine: courts must look beyond the snapshot of where children are sleeping at the time of a hearing. A parent who manufactures physical possession through alienating conduct cannot leverage that possession to invoke the lower preponderance-of-the-evidence standard for custody modification — and doing so may instead trigger the more demanding clear-and-convincing standard that ultimately worked against Michael here.