Background
Joseph Haapala and Rachael Penegor divorced in January 2021 with joint legal and physical custody of their two minor children. Their judgment of divorce provided for parenting time “as the parties agree” or, if they could not agree, on a “week on week off Sunday through Sunday” basis.
After Haapala’s arrest on criminal sexual conduct charges, the trial court ordered supervised parenting time every other weekend. Following Haapala’s October 2022 plea of no contest to attempted fourth-degree criminal sexual conduct, the court held a February 2023 hearing on his motion to restore the original parenting time schedule. On April 27, 2023, the trial court entered an order granting Haapala parenting time with the children “every weekend”—increasing from 78 overnights to 156 annually. However, the parties continued to operate under an every-other-weekend schedule in practice.
On May 4, 2023, Haapala moved again to restore the original schedule. After a July 13, 2023 hearing, the trial court on July 28, 2023 reaffirmed its April 27 order. Penegor appealed, challenging the increase as an alteration of the established custodial environment without clear and convincing evidence of best interests.
The Court’s Holding
The Court of Appeals affirmed, holding that the trial court committed no legal error. The crucial distinction was that the July 28, 2023 order did not modify the April 27, 2023 order—it simply enforced and reaffirmed it. Under Michigan’s Child Custody Act, MCL 722.27(1)(c), the heightened “clear and convincing evidence” standard applies only when a trial court modifies a previous custody judgment or order so as to change an established custodial environment.
Because the trial court issued no modification between April and July 2023, merely reaffirming the April order, it was not required to consider whether a change in circumstances existed, whether proper cause was shown, whether an established custodial environment would be altered, or whether the change served the children’s best interests. The court rejected Penegor’s argument that the parties’ actual practice (following every-other-weekend parenting time) transformed the April order into a prior standard requiring modification analysis.
Key Takeaways
- Enforcement or reaffirmation of an existing custody order is procedurally distinct from modification, triggering different legal standards under MCL 722.27.
- The clear and convincing evidence standard for changes to an established custodial environment applies only to modifications of previous judgments or orders, not to enforcement of existing decrees.
- Parties’ actual practice in deviating from a court order does not alter the legal status of what the order itself provides.
- Trial courts have discretion to reaffirm prior parenting time orders without reopening the full best-interests analysis.
Why It Matters
This decision clarifies a critical procedural distinction in Michigan family law: the difference between enforcing a court’s prior ruling and modifying it. For litigants and practitioners, the holding means that when a trial court reaffirms an earlier order—even if the parties have not complied with it—the heightened scrutiny and evidence standards for modifications do not automatically trigger. This affects how practitioners frame parenting-time disputes and when they can invoke the established-custodial-environment analysis.
The opinion also addresses the practical reality that parties often operate under informal agreements that diverge from formal court orders. The court made clear that such informal departures do not convert an unenforced order into a de facto modified order requiring rigorous best-interests review before reinstatement. This protects the enforceability of written judgments against erosion through non-compliance.