If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SHEHNAZ ABDRABBOH, formerly known as UNPUBLISHED
SHEHNAZ ZEINEH, March 10, 2022
Plaintiff-Appellant,
v Nos. 356537; 358424
Clinton Circuit Court
WISAM ROBERT ZEINEH, Family Division
LC No. 2016-026965-DM
Defendant-Appellee.
Before: REDFORD, P.J., and SAWYER and MURRAY, JJ.
PER CURIAM.
In Docket No. 356537, plaintiff appeals by delayed application for leave to appeal the
circuit court’s order for plaintiff’s and defendant’s child to attend school in defendant’s school
district and modifying plaintiff’s parenting time.1 This Court consolidated that appeal with
Docket No. 358424, in which plaintiff appeals by delayed application for leave granted the court’s
order granting defendant sole legal custody of the child.2 For the reasons stated in this opinion,
we affirm the circuit court’s orders.
I. FACTUAL BACKGROUND
The parties married in 2014, had one child together, and divorced in 2017. The circuit
court awarded the parties joint legal and physical custody of the child with the parties having a
week-on week-off custody arrangement. The parties resided in different counties. In August 2020,
defendant enrolled the child in kindergarten in his local school district without plaintiff’s consent.
Because of the COVID-19 pandemic, the school conducted classes virtually via Zoom. Defendant
testified that before enrolling the child he attempted to have conversations with plaintiff about
1
Abdrabboh v Zeineh, unpublished order of the Court of Appeals entered May 5, 2021 (Docket
No. 356537).
2
Abdrabboh v Zeineh, unpublished order of the Court of Appeals entered November 1, 2021
(Docket No. 358424).
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where to enroll the child in school, including the option of enrolling him in a neutral district while
virtual school took place, but plaintiff refused to discuss the issue. Defendant considered virtual
schooling best for the child because he had safety concerns about the pandemic and the child’s
asthma. Plaintiff testified that she did not refuse to discuss the issue but instead preferred to have
the child enrolled in her local school district in a blended in-person and virtual format.
The child attended his first two days of school virtually with plaintiff’s assistance. At the
hearing on the school selection issue, plaintiff testified that she did not realize that he actually
attended regular school and thought that he participated in an experiment to see whether virtual
school would be feasible. Following an exchange of custody with defendant, plaintiff contacted
the child’s school and informed the administration that she did not consent to the child’s attending
school there. That prompted defendant to file an emergency ex parte motion seeking continuation
of the child’s school attendance which the circuit court granted without prejudice to either party.
The order maintained the parties’ week-on week-off custody arrangement with the child attending
school virtually.
While the school matter remained pending, defendant moved to modify the child’s custody
on the ground that plaintiff had unilaterally changed parenting exchanges, made derogatory
statements in the presence of the child, and returned the child with his school iPad cracked. In the
alternative to granting defendant sole legal and physical custody, he requested that the parties’
parenting-time order be modified to have the child reside with defendant during the school year
and plaintiff during the summer.
Following an evidentiary hearing at which the circuit court found that the child’s school
attendance in defendant’s district served the child’s best interests, the court entered an order on
December 29, 2020, that the child continue attending kindergarten there with the same parenting-
time arrangement until the beginning of the 2021-2022 school year when the child would reside
with defendant during the school year and reside with plaintiff during the summer, with each party
having three weekends per month while the child lived with the other parent. The court ordered
that the parties continue sharing joint legal and physical custody of the child.
In January 2021, defendant moved for sole legal custody on the grounds that plaintiff had
unilaterally contacted the child’s school and requested that the child stop participating in
standardized testing and had taken the child out of school for two days, that she failed to do
schoolwork with the child and turn in his homework assignments, and she had taken the child to a
medical appointment without informing defendant. The court held a hearing during which plaintiff
essentially admitted the truth of the allegations in defendant’s motion. The court, therefore,
entered a temporary order granting defendant legal custody and ordered that an evidentiary hearing
would be held on March 25, 2021.
The circuit court held a legal custody evidentiary hearing at the conclusion of which it
found that a proper cause or change of circumstances warranted revisiting its previous custody
order. Specifically, it found that plaintiff had made decisions that could significantly affect the
child’s education without communicating with defendant, had not followed a court order requiring
structured medical appointments, and she failed to properly handle the child’s prescription
medication. The court found by clear and convincing evidence that it served the child’s best
interests for defendant to have sole legal custody.
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II. STANDARDS OF REVIEW
Under the Child Custody Act, MCL 722.21 et seq., “all orders and judgments of the circuit
court shall be affirmed on appeal unless the trial judge made findings of fact against the great
weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major
issue.” MCL 722.28. The trial court’s factual findings are against the great weight of the evidence
only if the evidence clearly preponderates in the opposite direction. Pierron v Pierron, 486 Mich
81, 85; 782 NW2d 480 (2010). In the child custody context, a palpable abuse of discretion occurs
when the result so violates fact and logic that it evidences the court’s lack of judgment, passion,
or bias, rather than the exercise of reason. Shulick v Richards, 273 Mich App 320, 324-325; 729
NW2d 533 (2006).
We “review under the great-weight-of-the-evidence standard the trial court’s determination
whether a party demonstrated proper cause or a change of circumstances.” Pennington v
Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019) (citation omitted). “A finding of fact
is against the great weight of the evidence if the evidence clearly preponderates in the opposite
direction.” Id. (citation omitted). Further,
A trial court’s findings regarding the existence of an established custodial
environment and regarding each custody factor should be affirmed unless the
evidence clearly preponderates in the opposite direction. An abuse of discretion
standard applies to the trial court’s discretionary rulings such as custody decisions.
Questions of law are reviewed for clear legal error. A trial court commits clear
legal error when it incorrectly chooses, interprets, or applies the law. [Id. (quotation
marks, alteration, and citation omitted).]
III. ANALYSIS
A. EX PARTE ORDER
Plaintiff argues that defendant’s enrollment of the child in his school district without
plaintiff’s consent stripped the circuit court of decision-making authority. Plaintiff, however, does
not cite any legal authority to support her contention that one parent not agreeing to school
enrollment, standing alone, removes the court’s decision-making authority or results in the court
abusing its discretion if it orders the child to continue attending that school. A party abandons an
issue by failing to provide any authority to support its assertions. Caldwell v Chapman, 240 Mich
App 124, 132; 610 NW2d 264 (2000). “A party may not merely announce a position and leave it
to this Court to discover and rationalize the basis for the claim.” Id. at 132-133.
Regardless, there is no indication that the circuit court palpably abused its discretion by
ordering the child to continue attending kindergarten in defendant’s school district. The record
reflects that, because plaintiff complained to the school that she did not consent to the child’s
attendance, the school would not allow him to attend unless by court order. Because the child was
not enrolled in any other school, he could not attend any other school. Given the predicament and
considering the child’s best interests, the circuit court provided appropriate temporary relief until
the matter could be presented by the parties and determined by the court. The court’s ex parte
order provided for the child’s continued education and gave plaintiff notice and opportunity to
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object and be heard. Plaintiff was not prejudiced by the order because the child had just started
attending kindergarten and his virtual attendance did not affect plaintiff’s parenting time. The
court’s decision did not so palpably violate fact and logic that it demonstrated passion or bias.
Plaintiff argues that the court failed to acknowledge that the child’s enrollment was
obtained by defendant’s illegal action of enrolling the child in school without plaintiff’s consent.
The record does not support her assertion. Both defendant’s ex parte motion and plaintiff’s
response acknowledged that plaintiff had not consented to the enrollment of the child in
defendant’s school district. The circuit court also heard the parties’ respective arguments on the
subject at the hearing on the motion and gave due consideration to defendant’s alleged improper
conduct. The circuit court ordered that the child continue the enrollment without prejudice, and
when the court made its ultimate decision, it did not base it on the child’s already being enrolled
in defendant’s district.3
B. THE COURT’S SCHOOL DECISION
Plaintiff raises several arguments regarding the best-interest factors related to the child’s
school, contending that the circuit court’s findings were against the great weight of the evidence
when it found certain factors in favor of defendant instead of plaintiff. We disagree.
The best interests of the child must control the court’s child custody decision. MCL
722.25(1). It is the trial court’s duty to determine a child’s best interests if the parents cannot agree
on important matters, including the child’s education. Lombardo v Lombardo, 202 Mich App 151,
159; 507 NW2d 788 (1993). This Court generally defers to the trial court’s credibility
determinations and decisions regarding the weight of the best-interest factors. Kessler v Kessler,
295 Mich App 54, 64; 811 NW2d 39 (2011).
To determine the child’s best interests, the circuit court must consider the factors set forth
in MCL 722.23 which provides:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child
in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
3
We note that plaintiff testified at the evidentiary hearing that she intended to enroll the child in
her school district the week after defendant enrolled the child in defendant’s district, but she did
not complete the process because the child was already enrolled in school.
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(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
Respecting the first factor, when considering a child’s best interests, the circuit court must
consider “[t]he love, affection, and other emotional ties between the parties involved and the
child.” MCL 722.23(a). The record reflects that both plaintiff and defendant love the child and
the child also loves them and has a bond with both his parents. The circuit court found that this
factor favored neither party. The court did not err in this regard.
The court must also consider “[t]he capacity and disposition of the parties involved to give
the child love, affection, and guidance and to continue the education and raising of the child in his
or her religion or creed, if any.” MCL 722.23(b). Plaintiff argues that the circuit court should
have found that the parties’ capacity to provide the child with guidance favored plaintiff because
plaintiff’s struggle to be involved in the child’s schooling resulted from defendant’s unilateral
decision to enroll the child in school. The record, however, indicates that the parties’
communication on the subject of the child’s schooling had deteriorated before defendant enrolled
the child, and he had done so because of the parties’ communication and cooperation problems.
The record reflects that, after the court’s order requiring the child to continue attending school in
defendant’s district, during his parenting time defendant took an active role with the child to assist
his education and he kept plaintiff informed about the child’s school activities. Defendant testified
that he provided plaintiff with reports about what the child learned in school because he believed
communication would foster the child’s learning environment. Defendant also testified that
plaintiff never told him how the child did or what school activities she completed with him.
Plaintiff affirmed that defendant provided a summary inconsistent with what was being done in
the child’s classes.
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The record indicates that the circuit court considered the evidence regarding the parties’
communication and cooperation problems that arose regarding the child’s school. The court also
considered the testimony that established that plaintiff had not reciprocated defendant’s updates
about the child’s schoolwork and activities. The record indicates that defendant acknowledged the
effect the parties’ disagreements had on the child. The court’s finding regarding updates about the
child’s school rested on its determination of the parties’ respective credibility. The record evidence
does not clearly preponderate against the court’s finding that defendant communicated more about
the child’s education than plaintiff. The record supports the circuit court’s finding that this factor
favored defendant.
Plaintiff argues further that her struggle resulted from defendant’s unilateral decision to
enroll the child in school. Plaintiff testified that she had issues submitting the child’s schoolwork
by uploading via an app because she did not have the child’s iPad. Defendant testified, however,
that plaintiff requested that defendant not send the iPad. Plaintiff did not provide contrary
testimony. Plaintiff testified that she spoke to a teacher about the assignments and had been offered
an alternative way to submit them on more than one occasion. She felt that it seemed like the
teacher did not really think it mattered. Plaintiff testified that she also asked for accommodations
with picking up assignments because it was not feasible for her to do so, and the child’s teacher
said that she would try to accommodate plaintiff by sending things via e-mail, but then she changed
her mind. Defendant agreed that the child’s school required picking up materials biweekly. He
told the child’s teacher that he would send materials and books to plaintiff overnight. Defendant
testified that he picked up the materials and intended to send them. Both plaintiff and defendant
testified that plaintiff told him not to do so.
The evidence does not clearly preponderate in favor of a finding that defendant’s decision
to enroll the child in defendant’s district resulted in plaintiff’s difficulty participating in the child’s
schooling. The evidence supports the circuit court’s finding that the parties’ capacity and
willingness to provide the child with education and guidance favored defendant. While plaintiff
may have been upset with the circuit court’s decision to temporarily order the child to continue
school in a district to which she had not consented, the court appropriately focused on the child
rather than on plaintiff when determining this best-interest factor. The record reflects that, after
the child started school, regardless of plaintiff’s preference, plaintiff did not provide guidance by
ensuring that the child’s assignments were completed and timely submitted, or by trying to
communicate about the child’s education. Plaintiff has failed to establish that the evidence clearly
preponderated against the court’s finding. The circuit court’s findings were not against the great
weight of the evidence.
Plaintiff next argues that the court’s finding regarding factor (c), MCL 722.23(c),
respecting the parties’ capacity and willingness to provide the child with care, was against the great
weight of the evidence because defendant’s reservations about in-person school during the
COVID-19 pandemic were merely a tactical ruse. The evidence does not clearly preponderate
against the court’s finding that defendant expressed appropriate concern about in-person school
during the COVID-19 pandemic. The record indicates that, as the conditions of the pandemic
appeared to be changing for the better by December 2020, defendant indicated that his reservations
about the child’s in-person school attendance might change depending upon CDC guidance and
the school’s decision which he intended to support.
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In October 2020, defendant testified that, when the COVID-19 pandemic started, he was
concerned about the child being in public. The child’s medical history included that he had
repeated upper respiratory infections and had been diagnosed with asthma, which was specifically
concerning to defendant given how the virus worked. Defendant testified that he “just wanted the
child to attend school and I thought that the online learning environment was the safest for that
considering everything going on.” Defendant had offered to plaintiff to mutually choose a neutral
online school so that the current parenting order could be maintained. According to defendant,
when plaintiff had discussed the child attending school in plaintiff’s district, he understood that
the school provided a hybrid virtual and in-person attendance. Defendant testified that he would
not oppose the child attending school in-person when the COVID-19 pandemic resolved.
Defendant testified that he received a survey from the school about whether to continue online
learning, and he had indicated that his preference was to maintain remote learning. Plaintiff
preferred not to do online schooling. Plaintiff did not testify about the child’s asthma or respiratory
conditions and the record does not indicate that she factored those things into her position
regarding school attendance.
In December 2020, defendant expressed his preference that the child attend school in-
person in January 2021 if the school safely operated within CDC guidelines. Defendant testified
that the school generally had not had problems with the COVID-19 pandemic. The record does
not support plaintiff’s contentions that he merely tactically posed reluctance to have the child
attend school in-person as a ruse to win the dispute.
When considering a child’s best interests, the trial court must consider “[t]he capacity and
disposition of the parties involved to provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this state in place of medical care, and
other material needs.” MCL 722.23(c). In this case, the circuit court found that this factor slightly
favored defendant. The record indicates that both parties were able to provide for the child’s food,
clothing, and needs while the child stayed with each parent. Although both parties were employed,
defendant historically had more stable employment. Plaintiff admitted that she had changed her
employment a number of times interspersed with periods of unemployment. The record indicates
that plaintiff had struggled financially and still owed defendant more than $4,000 in child support,
which defendant had not pursued because he could support the child with the income he earned.
Plaintiff also testified that she moved a few times since the divorce including one time after her
landlord issued a notice to quit. The court found that “there was some mention about the child’s
eyes and failing an eye exam and nothing was done by the mother to follow up on that.” The court
found that defendant asked a doctor to check the child’s vision at an appointment for a throat
problem. Defendant testified regarding his concerns about the child’s asthma diagnosis and about
protecting the child from exposure to COVID-19 in in-person classes. Plaintiff did not testify
about the child’s medical conditions. The record supports the court’s finding that this factor
favored defendant.
The evidence does not clearly preponderate in the opposite direction of the circuit court’s
finding regarding the parties’ capacity and disposition to provide the child with medical care.
Defendant expressed a concern about the child’s asthma and the COVID-19 pandemic, but plaintiff
did not mention the child had asthma. Further, the record indicates that defendant’s position about
in-person schooling at the end of December 2020, only changed after he had had an opportunity
to observe how the school district handled the COVID-19 pandemic. The record, therefore, does
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not support plaintiff’s contention that defendant used the pandemic as a means of gaining a
manipulative or tactical advantage.4
Plaintiff also argues that the trial court should have found that the stability of the parties’
home environments favored plaintiff because, while plaintiff moved more often, defendant was
involved in his fourth marriage. The court’s finding regarding the parties’ relative stability was
not against the great weight of the evidence.
When considering a child’s best interests, the trial court must consider “[t]he length of time
the child has lived in a stable, satisfactory environment, and the desirability of maintaining
continuity.” MCL 722.23(d). The court must also consider “[t]he permanence, as a family unit,
of the existing or proposed custodial home or homes.” MCL 722.23(e). Plaintiff’s argument treats
the two separate factors as a single factor. Regardless, the evidence did not clearly preponderate
against the circuit court’s findings that the stability of the parties’ environments slightly favored
defendant, and the continuity of their family units’ factor equally favored both parties.
Defendant testified he served as a paramedic supervisor and had been married since
January 2018, and lived at his current address since July 2018 with his wife and stepchildren.
Plaintiff testified that she worked as an independent contractor physician assistant for about a year.
She testified that she moved to her current address five months ago, before which she had lived a
short distance away, and before that, she had moved at least twice. Plaintiff’s two other children
lived in her household. Both plaintiff and defendant had extended families in the locales in which
they lived. The record supports the circuit court’s determinations regarding these two factors. The
circuit court considered factors (f) and (g) and found that neither favored either party.
Plaintiff argues that the trial court should have found that the school factor favored plaintiff
because she did not actually want to remove the child from school; she simply did not want the
child to attend school in defendant’s school district. When considering a child’s best interests, the
trial court must consider “[t]he home, school, and community record of the child.” MCL
722.23(h). “[G]enerally, the appellant bears the burden of furnishing the reviewing court with a
record that verifies the basis of any argument on which reversal or other claim for appellate relief
is predicated.” Petraszewsky v Keeth, 201 Mich App 535, 540; 506 NW2d 890 (1993).
The record indicates that the circuit court considered the relative merits of the parties’ two
school districts. The court noted the deficiencies plaintiff contended existed in the school at which
defendant enrolled the child. The court, however, did not agree with plaintiff’s desire that the
child stop attending school until the court made a final decision which the court found would have
resulted in the child potentially missing half a year of school. When asked on cross-examination
if she felt kindergarten attendance important, plaintiff did not respond directly until pressed and
4
The majority of plaintiff’s appellate arguments do not address the basis of the circuit court’s
decision. This Court need not consider an argument that does not address the basis of the trial
court’s decision. Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145
(2004). The circuit court’s findings regarding this factor concerned not only the child’s asthma,
but also plaintiff’s lack of financial support and her failure to follow up on the concerns about the
child’s eyes. The record supports the circuit court’s decision.
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then agreed but stated that “kids can do without it but it’s nice that they can.” Defendant testified
that he considered kindergarten very important and felt his local school district’s smaller, close-
knit school community provided a better place for the child to learn.
Respecting this factor, the court observed that the school had asked plaintiff to stop
attending the child’s classes during defendant’s parenting time because she tried to get the
teacher’s attention. The record indicates that plaintiff did not do anything to assist the child with
the subjects for which he needed help and she had not followed up on the child’s vision and
headache issues. Defendant testified that he attended parent-teacher conferences. He stated that
the child had done better in school since his baseline assessment that indicated some areas of
concern. Defendant testified that he kept plaintiff advised of the child’s activities and schoolwork.
The court found that this factor favored defendant. The record supports the circuit court’s decision
in this regard.
Plaintiff next argues that plaintiff’s school district offered superior schools to defendant’s
district and that the circuit court merely opted to maintain the status quo. Again, the record does
not support plaintiff’s argument.
The circuit court acknowledged that plaintiff’s district’s schools ranked higher than
defendant’s district’s schools. The court, however, appropriately recognized that it had to make
its decision based upon the child’s best interests and not merely the schools’ respective rankings.
The evidence established that the child progressed satisfactorily and that the child’s teacher treated
the child appropriately and kindly. The record indicates that the circuit court reviewed a recording
of one of the child’s classes during which the child struggled with a word and the teacher responded
appropriately by permitting the child to ask a question and thanked him for his question. Defendant
testified that, at parent-teacher conferences, the school provided him with a baseline assessment
that caused him concern, but the teacher explained that the school would work to help the child
improve. The school provided a progress report that indicated the child progressing. The court’s
findings were not against the great weight of the evidence and the record does not support
plaintiff’s argument that the court’s decision ignored school rankings and only sought to maintain
the status quo.
Factor (i), MCL 722.23(i), concerns the reasonable preference of the child. The record
indicates that the circuit court spoke with the child and he expressed no preference. The court,
therefore, found that the factor favored neither party.
Respecting factor (j), MCL 722.23(j), plaintiff argues that the parties’ ability to facilitate a
relationship with the other parent should have favored her because defendant violated the parties’
joint legal custody arrangement by enrolling the child in school. The record indicates that the
circuit court considered this fact when making its decision, but this was only one fact among many.
When considering a child’s best interests, the trial court must consider “[t]he willingness
and ability of each of the parties to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent or the child and the parents.” MCL 722.23(j).
In this case, the circuit court found that this factor favored neither party because both parties had
been willing to facilitate and encourage a relationship between the child and the other parent. The
record supports the court’s decision.
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The record indicates that the circuit court considered that plaintiff had not consented to the
child’s enrollment in kindergarten in defendant’s school district. Both parents thought that the
child should be enrolled in school but their efforts to discuss the matter resulted in an unresolved
dispute over which school. Neither party sought help from the court to decide the issue. The
record does not indicate that either parent attempted to alienate the child from the other parent,
seriously interfered in the other’s parenting time, or otherwise acted to harm the other’s parental
relationship with the child. The evidence does not clearly preponderate against the court’s finding
that the factor did not favor either party.
Plaintiff has failed to establish that the circuit court erred in any of its best-interest factors
decisions related to the child’s education. Plaintiff has not shown that the court’s findings were
not supported by the great weight of the evidence or that the child’s attendance of school in
defendant’s district did not serve the child’s best interests.
Plaintiff argues that the circuit court erred as part of its school decision by changing her
parenting time to accommodate the child’s school attendance because she contends that not enough
evidence supported the school decision and the parenting-time decision will make her merely a
weekend and summer parent. The record indicates that the court determined the child’s best
interests for all aspects of its decisions. The court applied the principles established in Pierron,
486 Mich 81, and Lombardo, 202 Mich App 151. The court found that a preponderance of the
evidence established changes in the parties’ relationship and interactions which impacted the child
in a number of ways including the school issue which required the court to revisit the last custody
order and consider whether it should be modified. The court assessed the current pandemic related
situation which necessitated virtual school attendance but recognized that in-person classes likely
would resume sometime during the school year or in the following year. The circuit court
acknowledged the current equal parenting time but recognized that the child’s in-person school
attendance would require a change in the current custodial environment which would impact
parenting time to accommodate the school and the child’s education. The court applied the clear
and convincing evidence standard and concluded that the record evidence established the necessity
to modify parenting time to enable the child’s education. The court, however, declined to change
the legal custody of the child. Given the evidence presented in this case, we are not convinced that
the circuit court erred in this regard. The court’s findings were supported by substantial
uncontroverted evidence.
C. LEGAL CUSTODY
1. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Plaintiff argues that the circuit court granted the parties joint legal custody and shortly
thereafter changed the child’s custody to sole legal custody without significant changes occurring
since the previous custody order. The record, however, reveals that the circuit court conducted an
evidentiary hearing in March 2021 at which it heard testimony from plaintiff, defendant, and
another witness, and received evidence pertaining to the legal custody issue. Analysis of the
evidence supports the court’s decision. The evidence does not clearly preponderate in the opposite
direction of the court’s finding that, following entry of its December 2020 order regarding the
child’s school, the parties’ communication and cooperation regarding the child’s school and
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medical issues significantly deteriorated sufficient to warrant revisiting the child’s legal custody
issue.
When deciding whether joint custody is within the best interests of the child, the court must
consider the best-interest factors and “[w]hether the parents will be able to cooperate and generally
agree concerning important decisions affecting the welfare of the child.” MCL 722.26a(1)(b).
Decision-making authority about the important decisions affecting the child is an aspect of
custody. MCL 722.26a(7)(b). “[L]egal custody is understood to mean decision-making authority
as to important decisions affecting the child’s welfare.” Grange Ins Co of Mich v Lawrence, 494
Mich 475, 511; 835 NW2d 363 (2013).
To minimize unwarranted and disruptive changes in children’s custody, a circuit court may
only modify children’s custody if the moving party first establishes a proper cause or a change of
circumstances. Corporan v Henton, 282 Mich App 599, 603; 766 NW2d 903 (2009). The
existence of proper cause or a change of circumstances is a threshold consideration that the trial
court must resolve before revisiting a custody order. Id. The purpose of this framework is to
“erect a barrier against removal of a child from an established custodial environment and to
minimize unwarranted and disruptive changes of custody orders.” Vodvarka v Grasmeyer, 259
Mich App 499, 509; 675 NW2d 847 (2003) (quotation marks and citation omitted). The movant
“has the burden of proving by a preponderance of the evidence that either proper cause or a change
of circumstances exists . . . .” Id.
A proper cause to modify a child’s custody exists if there are “one or more appropriate
grounds that have or could have a significant effect on the child’s life to the extent that a
reevaluation of the child’s custodial situation should be undertaken.” Id. at 511. The best-interest
factors must guide the court’s determination whether proper cause exists warranting revisiting
custody orders. Id. at 512. A change of circumstances warrants modifying a child’s custodial
environment if, “since the entry of the last custody order, the conditions surrounding custody of
the child, which have or could have a significant effect on the child’s well-being, have materially
changed.” Id. at 513.
In this case, the circuit court found a number of material changes that had or could have a
significant effect on the child’s well-being. The court’s greatest concern related to the child’s
school issues. The court found that plaintiff admitted that after the court’s school decision she
contacted the school without consulting defendant and withdrew the child from standardized
testing that had already started. Plaintiff also admitted that she sent a letter to the school without
consulting defendant in which she chastised the school for having the child participate in activities
citing religious grounds. Plaintiff, however, admitted that the school activities actually were not
religious and did not diminish other religions. She admitted having similar celebrations in her own
home, not to the exclusion of other customs or religions. The circuit court also found that evidence
established that plaintiff failed to complete school work with the child because she did not make
the effort to get the information from the school. The record evidence supports the court’s
determination that plaintiff’s unilateral actions impacted the child’s schooling and interfered with
the school’s ability to assess his progress.
The evidence does not clearly preponderate against the court’s finding that issues regarding
the child’s school had materially changed. The previous issues regarding the child’s schooling
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included that plaintiff failed to help the child complete assignments, plaintiff’s issues with
obtaining accommodations to pick up class materials, and plaintiff being asked to stop attending
the child’s classes because she caused distractions. At that time, plaintiff had not interfered with
the child’s standardized testing, but expressed concern regarding the child’s test scores.
Additionally, the child’s baseline assessment showed deficiencies with letter recognition, number
recognition, and sounds. The court found that, if the child could not be tested and assessed, the
school would be prevented from determining whether he improved or might need student services.
Plaintiff admitted during her testimony that, after the first week of January 2021, she unilaterally
contacted the child’s school and informed it that she did not authorize the child to take part in
standardized testing. She testified that she did so because she believed the school’s method of
standardized testing lacked integrity. Plaintiff admitted that she did not contact or communicate
with defendant before directing the school to exclude the child from the testing. Defendant
testified that he learned after the fact about plaintiff’s directive to the school that the child be
excluded from standardized testing. He did not agree with that decision. The evidence presented
at the March 2021 hearing established that the parties were unable to cooperate and agree about
important decisions such as standardized testing and other aspects of the child’s education. The
child’s school record relates to the best-interest factors. See MCL 722.23(h).
The record also indicates that, before 2021, plaintiff never expressed any concern about
school activities on religious grounds. During the March 2021 hearing, plaintiff admitted that she
sent the school a letter that expressed concern about the school discussing things about Christmas.
When asked for an explanation, she admitted that the school activities were not of a religious
nature, that “there’s nothing wrong with talking about Christmas,” and that she put up seasonal
decorations in her own home. The record indicates that, before communicating with the school in
this regard, she had not discussed the issue with defendant nor consulted him. She also did not
communicate with defendant before withdrawing the child from school for two days. The court’s
finding that the issues related to the child’s education had the potential to substantially impact the
child’s life, was not against the great weight of the evidence.
At the March 2021 hearing, evidence also established that plaintiff failed to inform
defendant about the child’s medical issues and appointments. Plaintiff attempted to excuse her
failure to inform defendant about an appointment on the ground that she had been angry.
Defendant did not receive information about a significant eye appointment during which the
child’s eyes were dilated until long after the appointment. The court’s existing order required that
plaintiff promptly inform defendant of all such medical issues. Evidence established that, on
February 20, 2021, plaintiff refilled the child’s prescription medication and the pharmacy provided
the child a 90-day supply but plaintiff gave defendant a different bottle with a 30-day supply,
retaining the rest at her home despite the fact that the child would be in defendant’s physical
custody. The label on the medication plaintiff gave defendant made it unclear whether the
medication had expired. Plaintiff never spoke with defendant about it. Defendant testified that
the breakdown in communication between the parties became a safety issue for the child.5
5
Plaintiff testified that she had refilled the child’s medication. When asked whether she had given
defendant all of the child’s medications during his parenting time, plaintiff testified that she did
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The circuit court properly found that a preponderance of the evidence established that
issues regarding the well-being of the child necessitated revisiting the child’s custody. The
evidence did not clearly preponderate against the court’s finding that the issue about
communication regarding the child’s education, medical concerns, and prescription medication
had the potential to significantly impact the child.
The evidence established a proper cause to revisit custody because it confirmed issues that
directly affected the child’s well-being related to MCL 722.23(b). Under Vodvarka, the court is
only required to find a proper cause or a change of circumstances. See Vodvarka, 259 Mich App
at 510. A change of circumstances requires examining the circumstances that occur between one
custody order and another. Id. at 514. However, “[t]he same is not necessarily true for proving
proper cause, though in most cases it will hold true.” Id. at 515. The issue of proper cause is more
concerned with the significance of the events. Id.
At the March 2021 legal custody hearing, both parties testified about scheduled, referred,
and missed medical appointments. Medical appointment issues were discussed at the previous
custody hearing, including plaintiff’s belief that the child required additional appointments.
Defendant testified that plaintiff repeatedly made unnecessary appointments with medical
providers; and as the child got older, he observed the more it affected the child’s development and
did not serve the child’s best interests.
Although there may not have been clear and convincing evidence to support changing the
child’s legal custody in December 2020, a preponderance of the evidence established that
circumstances changed significantly in January and February 2021 warranting revisiting the legal
custody order. The evidence did not clearly preponderate against the court’s finding that issues
arose regarding plaintiff’s disruptions in the child’s schooling, plaintiff’s handling of the child’s
medications, and plaintiff’s making medical appointments without including defendant in the
decision, all of which had the potential to significantly impact the child’s well-being.
Plaintiff argues for the first time on appeal that her lack of counsel affected the trial court’s
legal custody decision and resulted in the court being biased against her. We disagree.
A party abandons its assertions when it fails to include the issue in his or her statement of
questions presented and fails to provide any authority to support its assertions. Caldwell, 240 Mich
App at 132. “A party may not merely announce a position and leave it to this Court to discover
and rationalize the basis for the claim.” Id. at 132-133. Plaintiff’s statement of questions presented
does not refer to a lack of counsel or judicial bias. Plaintiff does not include any discussion of
legal authority or expand on this argument beyond stating that the trial court could be easily swayed
by defendant’s arguments and that the disparity was clearly evident in the outcome. Plaintiff,
not think of that. When asked why plaintiff did not give defendant the actual bottle of prescription
medication, plaintiff testified that she did not know. She agreed that a bottle was old and that she
was not sure what happened regarding the number of tablets. She testified that the prescription
issue did not really matter and expressed the opinion that it was not a big deal.
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however, abandoned these issues by failing to state them as issues presented and by merely
announcing these positions without support.
Regardless, the record reflects that plaintiff had the opportunity to obtain counsel before
the scheduled March 2021 evidentiary hearing. The record indicates that, before starting the
hearing, the circuit court appropriately inquired and determined that plaintiff chose to proceed
without the assistance of retained counsel. Plaintiff did not object to proceeding.
Further, the record reflects that the circuit court appropriately accommodated plaintiff to
enable her to present her case, interrogate witnesses, and argue her position. The record indicates
that plaintiff knowingly and voluntarily waived the issue of legal representation and she abandoned
the claim of judicial bias. The mere fact that a court has ruled against a litigant does not establish
judicial bias. See In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009). The
record in this case contains no indication that plaintiff’s self-represented status affected the
integrity of the proceedings or influenced the court’s decisions. Accordingly, we find no merit to
plaintiff’s contentions in this regard.
2. BEST INTERESTS
Plaintiff argues that the trial court failed to examine the role that defendant’s unilateral
decision to enroll the child in defendant’s district had on the parties’ coparenting relationship, and
that the trial court failed to give plaintiff the benefit of the doubt when she merely wanted the child
to attend a better school. Plaintiff also argues that this Court should be skeptical of defendant’s
motives to enroll the child in school in the first place. These arguments do not address the basis
of the trial court’s legal custody decision or establish that its findings were against the great weight
of the evidence. This Court need not consider arguments that do not address the basis of the trial
court’s decision. Derderian, 263 Mich App at 381.
In this case, the record indicates that, after finding that a preponderance of the evidence
established proper cause and a change of circumstances warranting revisiting the legal custody of
the child, the circuit court analyzed the applicable best-interest factors to determine whether a
change in legal custody served the child’s best interests. The record reflects that the court
considered defendant’s unilateral school enrollment decision, plaintiff’s school preference, and the
parties’ willingness to facilitate relationships with each other and be involved in the child’s
education. The court based its legal custody decision on plaintiff’s undisputed unilateral conduct
of withdrawing the child from standardized testing, failure to properly assist the child’s completion
of school work, unannounced removal of the child from school for two days, and failure to involve
defendant in importation medical decisions.
Plaintiff argues that defendant was less willing than plaintiff to facilitate a close parent-
child relationship with the child by refusing to consider how defendant’s unilateral school decision
affected plaintiff’s emotional state. As previously discussed, the circuit court took that into
consideration when making its school decision before the motion to change the child’s legal
custody. Plaintiff’s argument does not address the court’s grounds for its legal custody decision.
She does not explain how the court’s findings were against the great weight of the evidence or
should have been supplemented with evidence that was available at the legal custody hearing. We
conclude that these arguments do not address the basis of the trial court’s decision.
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Regardless, the evidence did not clearly preponderate against the trial court’s findings
following the parties’ legal custody hearing. When considering a child’s best interests, the trial
court must consider “[t]he willingness and ability of each of the parties to facilitate and encourage
a close and continuing parent-child relationship between the child and the other parent or the child
and the parents.” MCL 722.23(j). Again, the best-interest factors focus on the child, MCL
722.25(1), not on the parents.
In this case, the circuit court found that the parents’ ability to facilitate a relationship with
the other parent slightly favored defendant. The court was “concerned about the impact the
Plaintiff’s emotional fallout has on the child and his ability—his relationship with his dad.”
Evidence established that plaintiff failed to timely arrive to exchange the child, and on at least one
occasion plaintiff followed defendant out of a store after exchanging the child saying that the truth
would set the child free. Defendant testified that following time with plaintiff, the child worried
that defendant would keep him from his mother. Defendant testified that, during a parenting
exchange, the child asked why defendant would not let him see his mother anymore. Defendant
also testified that the child had called him a liar for no apparent reason. Defendant explained that
he informed the child that he understood that the child loved plaintiff and that defendant did not
want to keep him from plaintiff. Plaintiff did not offer contrary testimony about the parenting
exchanges. The evidence did not clearly preponderate against the trial court’s finding that
defendant was slightly favored regarding this factor because of his ability and willingness to
facilitate a relationship with plaintiff.
The record reflects that the circuit court appropriately considered the applicable best-
interest factors. Evidence established that plaintiff’s undisputed conduct indicated that she would
not work together, communicate, or cooperate with defendant to make decisions in the child’s best
interests. The court found that the evidence established that plaintiff acted unilaterally regarding
the child’s schooling, his medications, and medical appointments, all of which impacted him
significantly. The court found that plaintiff’s conduct called into question her ability to make
sound judgments and indicated that she made decisions because of her emotional state and not in
the child’s best interests. Plaintiff’s testimony focused on herself and not on the child. The court
found that the evidence established that defendant had communicated with plaintiff regarding
school issues and medical information and records. His conduct indicated that he focused on the
child and not himself.
The circuit court also considered the ability of the parties to provide the child food,
clothing, and medical care. The court found that the evidence established that they both could
provide adequately for the child’s material needs, but the evidence raised concerns about medical
care. Specifically, the court found that plaintiff failed to share with defendant medical information
including appointments, contrary to the court’s previous order that all referrals for medical care
were to be made by the child’s pediatrician. The court noted that it had entered that order in 2019
because plaintiff had involved so many doctors that it provided the child no cohesive medical care.
The court found that plaintiff failed to follow the order which deprived defendant of the
information until he found out via his insurance. The court also found that plaintiff admitted that
she could have provided defendant the medical appointment information but simply did not do it.
The court, therefore, found that factor (c) favored defendant. The record supports the court’s
decision in this regard.
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The record indicates that the circuit court determined that factors (d) and (e) favored neither
party because both parents provided the child a satisfactory stable and safe environment, and
permanency of a family unit. The court found that evidence did not indicate any moral fitness
issue or mental or physical health issue that impacted either party’s ability to parent the child, and
therefore, factors (f) and (g) also favored neither party. Respecting factor (h), the circuit court
found that the same facts pertinent to factor (b) applied and that the factor favored defendant. The
court did not consider factor (i) relevant to its decision because it reasoned that the child’s young
age would not enable him to express a preference about what parent had the best ability to make
decisions about his well-being. The court also did not consider factor (k) relevant because no
evidence established domestic violence directed against or witnessed by the child. The record
supports the court’s decisions regarding these factors.
Respecting factor (j) concerning the parties’ willingness and ability to encourage a close
and continuing parent-child relationship, the circuit court found that evidence indicated that
plaintiff’s “emotional fallout” impacted the child, noting the evidence of conduct during exchanges
that caused the child to question defendant regarding keeping him from having contact with
plaintiff. The court noted at least one positive aspect of the situation in that the evidence indicated
that the child willingly spoke openly with defendant about his concerns. The court found factor
(j) favored defendant slightly. The record supports the court’s decision in this regard.
The circuit court also considered factor (l) which concerns other factors relevant to the
child custody dispute. The court expressed concern that plaintiff deliberately failed to follow the
court’s orders particularly respecting issues of her unilateral decisions regarding the child’s
schooling. The court found that plaintiff admitted almost all of the facts pertaining to the reasons
for reviewing legal custody. The record supports the court’s findings.
Affirmed.
/s/ James Robert Redford
/s/ David H. Sawyer
/s/ Christopher M. Murray
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