Background
Brooke Krueger and Trevor Curler are the unmarried parents of one minor child, KC. The parties lived together at Curler’s parents’ home for approximately the first three years of KC’s life, during which time Krueger worked and both parents provided care. After the couple separated in 2023 and Krueger moved out, they informally shared 50-50 custody — an arrangement that was never reduced to writing. In July 2024, Krueger filed a complaint for child support, which triggered Friend of the Court involvement to resolve custody, parenting time, and support.
A temporary parenting-time order gave Curler alternating weekends and brief midweek visits. Between December 2024 and March 2025, a referee held three evidentiary hearings. Curler sought sole custody; Krueger sought primary physical custody with joint legal custody. In April 2025, the referee found that an established custodial environment existed primarily with Krueger and to a lesser extent with Curler, applied the clear-and-convincing-evidence standard, and recommended primary physical custody to Krueger with joint legal custody and a structured parenting-time schedule for Curler. The trial court adopted that recommendation, and when neither party objected within the 21-day window, it became a final order in June 2025. Curler appealed by leave granted.
The Court’s Holding
The Court of Appeals affirmed on all issues. First, it held that while the trial court technically erred by admitting plaintiff’s bare testimony that KC had been formally diagnosed with autism — without supporting medical records or expert testimony — the error was harmless. Defendant himself had opened the door to that subject by eliciting related testimony from his own witness, and the autism finding was not outcome-determinative on the best-interest factor it affected (factor (c)), because the remaining evidence under that factor independently favored Krueger.
Second, the court rejected Curler’s challenge to the burden of proof. Because an established custodial environment existed with both parents, controlling Michigan precedent required the clear-and-convincing-evidence standard for any change that would reduce either parent’s custodial environment — not merely preponderance of the evidence as Curler argued. Third, as to the eight best-interest factors Curler challenged under MCL 722.23, the court found that Curler had forfeited those arguments by failing to object to the referee’s recommendations within the required 21-day period, and that even under plain-error review — and even if the issue had been preserved — none of the findings were against the great weight of the evidence.
Key Takeaways
- An established custodial environment with both parents triggers the clear-and-convincing-evidence standard for any modification that would reduce either parent’s parenting time, not merely a preponderance standard.
- Hearsay evidence admitted at a custody referee hearing is subject to harmless-error analysis; an evidentiary error will not warrant reversal unless it was outcome-determinative on the best-interest balancing.
- A party who fails to object to a referee’s custody recommendations within the 21-day statutory and court-rule deadline forfeits the right to challenge factual findings on appeal and is limited to plain-error review.
- Isolated video evidence of possible neglect, without proof of a pattern of harmful behavior, is insufficient to clearly preponderate against a best-interest finding that favors both parents.
Why It Matters
This decision reinforces that Michigan’s heightened clear-and-convincing standard is not reserved for cases where a custodial environment exists solely with one parent — it applies whenever changing the arrangement would disturb an environment established with either parent, including dual-home situations. Practitioners should advise clients that allowing a de facto custody arrangement to solidify, even informally, can significantly raise the evidentiary bar a challenging parent must clear.
The opinion also offers a practical reminder about preservation: failing to file a timely objection to a referee’s recommendations forecloses meaningful appellate review of factual findings. And on the evidentiary side, the court’s harmless-error treatment of the autism testimony illustrates that opening the door to a subject through one’s own witness — even to contest it — can undermine a later objection to the same subject and limit appellate relief even where the trial court did err.