By Kelly Caplan
BridgeTower Media Newswires
DETROIT — The role of a parent who works outside the home to support the family should not be overlooked when deciding a child’s established custodial environment, the Court of Appeals has ruled in a published opinion. When the trial court decided the minor child only had an established custodial environment with the stay-at-home defendant, the plaintiff asked the trial court to allow her to present additional evidence.
The Court of Appeals agreed, vacating the custody award, and remanding for further proceedings.
“It was error to discount the role of the child’s other parent, plaintiff Bridget Bofysil, simply because Bridget worked outside the home to support her family. This error influenced the applicable burden of proof and permeated the court’s assessment of the child’s best interests.”
The case, Bofysil v. Bofysil (MiLW 07-102499, 9 pages), was authored by Judge Elizabeth L. Gleicher, and joined Judges Mark J. Cavanagh and Jane M. Beckering.
Plaintiff’s counsel Liisa R. Speaker, of the Speaker Law Firm in Lansing, hopes this ruling will help other working parents have a chance to share in their children’s lives.
“We weren’t expecting a published opinion from this case, but now that the Court of Appeals did, we believe it will be very helpful to families in divorce litigation,” she said. “So often the parents make decisions about who is going to work outside the home and who is going to stay home. The parent who is carrying the weight of earning income to support the family should not be penalized.”
Speaker added that it felt as if the trial court did not give her client a fair shake.
“She was penalized for working because, in the court’s view, she did not spend as much time with the parties’ daughter, but at the same time gave no credit to the working parent for being the sole breadwinner of the family,” she added. “That provided indicia to us — and apparently to the Court of Appeals — that the trial court was not fairly analyzing the facts.”
Bridget and Sarah were married in 2014, and decided to have a child, using Bridget’s egg fertilized with a sperm donor and implanted in Sarah.
They agreed Sarah would stay home to raise their child while Bridget would continue to work as a canine officer with the Eastern Michigan University Police Department.
Sarah stopped working in December 2015, and the couple’s daughter, AB, was born in January 2016. Bridget filed for divorce in June 2018.
Sarah took AB and moved in with her parents near Muskegon. After the marital home sold, Bridget moved to a metro Detroit suburb, claiming she could not move closer to Sarah’s new home because she continued to work in Ypsilanti.
Bridget testified that, after their separation, Sarah kept AB from her for a month, and would allow Bridget to take AB only when Bridget was off work. Following a conciliation meeting, the Friend of the Court gave the parties a parenting-time schedule.
Ultimately, Sarah was awarded sole legal and physical custody of AB, and Bridget was given “reasonable rights parenting time.”
The Jackson County Circuit Court held Sarah to a “preponderance of the evidence” standard and said AB’s established custodial environment was with Sarah alone. Bridget, however, was required to prove by “clear and convincing evidence” that she should have physical custody of AB.
When it considered best-interest factors, the trial court weighed most in favor of Sarah, and conveyed a clear preference for Sarah as the stay-at-home caretaker.
The trial court denied Bridget’s motion for reconsideration.
The trial court “apparently contemplated that its established-custodial-environment determination” might not hold up to appellate scrutiny, the panel began.
It also “perpetuated its erroneous approach to the working parent throughout the judgment, faulting Bridget for her full-time employment outside the home by treating her as less than a full parent.”
A parent doesn’t love a child more if she stays at home to raise that child rather than working outside the home to financially support the family, the panel said, adding that working outside the home should not “foreclose the result of a custodial disagreement” if the parents’ relationship ends.
Because of her work outside the home, the trial court treated Bridget as a less viable parent, and did not credit her for earning an income and providing health insurance for her minor child.
“The court treated the parties equally under factor (c) after deeming child support and ‘the additional support [Sarah] receives from her family’ as ‘more than sufficient to meet [AB’s] material needs.’ We discern no rational reason to both punish and yet fail to credit a parent for financially supporting his or her family,” the appeals court stated.
The trial court focused heavily on plaintiff’s new romantic relationship when conducting its best-interest analysis.
“In focusing on this factor, the court repeatedly emphasized that Bridget was not yet divorced and her new girlfriend was married, although separated,” the panel said. “The court described this relationship as ‘illicit,’ expressed that it took ‘a very dim view of extra-marital relationships’ because they ‘show[] a lack of candor and fidelity,’ and implied that Sarah therefore had a superior moral character.”
But statutorily, infidelity can’t be used to measure a parent’s “moral fitness” unless that conduct interferes with the person’s ability to parent the child.
“[T]he circuit court treated the parties disparately,” the panel explained. “The evidence established that Sarah was married when she began her romantic relationship with Bridget. Surely that ‘illicit relationship’ equally ‘shows a lack of candor and fidelity’ on Sarah’s part.”
The panel concluded that further proceedings are required to serve the minor child’s best interests.
“Given the circuit court’s improper reliance on Bridget’s relationship with a married woman and its bias against Bridget’s role as a working parent, we cannot hold that the court acted within its discretion in awarding sole physical custody to Sarah with such limited parenting time to Bridget,” the panel said.
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