Background
Joseph Haapala and Rachael Penegor divorced in January 2021, with a judgment granting them joint legal and physical custody of their two minor children. Their parenting time schedule was initially “as the parties agree,” defaulting to week-on/week-off if they could not agree. Following Haapala’s arrest on criminal sexual conduct charges, the trial court ordered supervised parenting time for Haapala every other weekend.
In October 2022, Haapala pleaded no contest to attempted fourth-degree criminal sexual conduct. He then moved to restore the original week-on/week-off parenting schedule. At a February 2023 hearing, the trial court ordered that Haapala would have parenting time with the children every weekend, formalizing this in an April 27, 2023 order. Despite this order, the parties continued to follow an every-other-weekend schedule in practice. When Haapala moved again in May 2023 to restore the original schedule, the court held a July 13, 2023 hearing and reaffirmed its April 27, 2023 order on July 28, 2023. Penegor appealed, arguing the court impermissibly increased Haapala’s parenting time from 78 to 156 overnights annually.
The Court’s Holding
The Michigan Court of Appeals affirmed the trial court’s order. The court held that because the July 28, 2023 order did not modify the April 27, 2023 order but rather enforced it, the trial court was not required to satisfy the procedural requirements of MCL 722.27(1)(c). That statute limits modifications of custody orders to situations where there is either a change in circumstances or proper cause, and requires clear and convincing evidence of best interest before changing an established custodial environment.
The court rejected Penegor’s argument that the parties’ agreement to follow an every-other-weekend schedule—different from the April order—had created a new established custodial environment that the court then modified by reaffirming the April order. The court noted that the Child Custody Act concerns itself with changes to “previous judgments or orders,” not with unenforced agreements between parties. Since the trial court was simply enforcing what it had previously ordered rather than issuing a new modification, statutory protections for established custodial environments did not apply.
Key Takeaways
- When a trial court enforces (rather than modifies) a previous custody or parenting time order, it need not demonstrate change in circumstances, proper cause, or clear and convincing evidence of best interest under MCL 722.27(1)(c).
- Parties’ informal agreement to deviate from a court order does not create a new “established custodial environment” that would require statutory protections to modify.
- The distinction between enforcing and modifying an order is legally significant in child custody matters and determines which statutory standards apply.
Why It Matters
This decision clarifies an important procedural issue in Michigan family law: courts have discretion in ordering custody and parenting time, but that discretion is limited once an order is in place. By distinguishing between enforcement and modification, the court preserved judicial authority to enforce orders even when parties have reached informal alternative arrangements. This protects the trial court’s ability to ensure compliance with its orders without having to relitigate the underlying custody factors each time enforcement is sought.
The decision may have broader implications for post-divorce disputes involving criminal convictions. Haapala’s plea to criminal sexual conduct initially restricted his parenting time, but the court’s decision to restore more liberal access was ultimately enforceable without requiring the custodial parent to meet the heightened burden of proving changed circumstances or best interest. The ruling thus clarifies how trial courts may grant expanded parenting time following criminal convictions while maintaining their ability to enforce such orders against resistance.