Child Custody Determinations Can't "Discount the Role" of Working Parent in Favor of Stay-at-Home Parent

So concluded the Michigan Court of Appeals.

|The Volokh Conspiracy |

From Thursday's opinion in Bofysil v. Bofysil, by Michigan Court of Appeals Judge Elizabeth L. Gleicher joined by Judges Mark J. Cavanagh and Jane M. Beckering:

A recent Pew Research study reports that in 2016, 18% percent of parents in America stayed home to raise their children. Twenty-seven percent of mothers elected stay-at-home parenting. Livingston, Stay-At-Home Moms and Dads Account for About One-In-Five U.S. Parents, For one parent to stay home to raise the children, the other must go out into the world and generate an income to support the family. Does working outside the home compromise a parent's ability to forge and maintain a strong, healthy relationship with her children? What if both parents work outside the home? Is the child essentially without a parent truly committed to parenting and all that the job entails?

In this case, the trial court found that the young child had an established custodial environment only with defendant Sarah Bofysil, largely because Sarah "was the stay at home mom while the parties were together" and the child "is with her the majority of the time." 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. Accordingly, we affirm in part the judgment of divorce, but vacate the custody award and remand for further proceedings….

Before making a custody determination, the trial court must determine whether the child has an established custodial environment with one or both parents, which "is an intense factual inquiry." An established custodial environment is one "of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence." "An established custodial environment may exist with both parents where a child looks to both … for guidance, discipline, the necessities of life, and parental comfort."

Determining a child's established custodial environment is a pivotal step in a custody battle because it installs the burden of proof. If a proposed change would modify the child's established custodial environment, the proponent must demonstrate by clear and convincing evidence that the proposed change is in the child's best interests. If the proposed change would not modify the established custodial environment, the proponent need only demonstrate by a preponderance of the evidence that the proposed change is in the child's best interests. If a child has an established custodial environment with both parents, neither parent's custody may be disrupted absent clear and convincing evidence that the change is in the child's best interests.

Here, the court determined that AB had an established custodial environment exclusively with Sarah. Therefore, Sarah was only required to establish by a preponderance of the evidence that granting her sole physical custody was in AB's best interests, and Bridget had to prove by clear and convincing evidence that granting her sole physical custody would be best for her child. Left unsaid was that Bridget would have to prove by clear and convincing evidence that even shared custody would serve AB's best interests.

The evidence preponderates against the circuit court's established-custodial-environment finding. Both parties agreed that from AB's January 2016 birth until Sarah left the home with AB in the middle of June 2018, both parents shared in the care of AB. Although Bridget worked outside of the home, she arranged her schedule to maximize her time home during AB's waking hours. Even Sarah conceded the Bridget was usually the one to make lunch for the family and that the whole family often would be present when Bridget took on side jobs training dogs. AB clearly had a homelife in which both of her parents provided for her care and needs. Although AB may have looked to her parents to fulfill different needs and likely understood at some level their distinct household roles, both provided her with "security, stability, and permanence."

The circuit court apparently contemplated that its established-custodial-environment determination might not withstand appellate scrutiny. The court noted, "regardless of which standard applies, the Court finds that the evidence supporting the following custody determination is indeed clear and convincing." However, the court 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…. [J]ust as when determining AB's established custodial environment, the court's findings on many [of the best-interests-of-the-child] factors preponderated against evidence that Bridget was regularly and routinely involved in AB's daily care despite that she worked outside the home.

The court erroneously weighed factor (a) in Sarah's favor after finding that Sarah "has closer parental and emotional ties to [AB] than does [Bridget] by virtue of being able to spend significantly more time with her." The court similarly erred in weighing factor (b) in Sarah's favor based on its conclusion that Sarah "has been the primary caregiver and that her commitment to remain home with the child until she reaches school age, rather than place her in day care or the care of another, will enable her to be far better able to provide her with love, affection and guidance than [Bridget], who spends much of her days at work." The fact that the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child. Nor should that decision foreclose the result of a custodial disagreement if a relationship ends.

Despite treating Bridget as a less viable parent because she chose to work outside the home, the court declined to credit Bridget for her ability and willingness to earn an income and provide health insurance for her 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….

[We thus] cannot hold that the court acted within its discretion in awarding sole physical custody to Sarah with such limited parenting time to Bridget. Further proceedings with up-to-date information will be required to consider the custodial arrangement that best serves AB's best interests….

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  1. “The couple decided to have a child, using Bridget’s egg fertilized with a sperm donor and implanted in Sarah.”

    I’m thinking more in terms of child support obligations than parental rights, but they are similar and where do Sarah’s parental rights come from as the biological parents of that child are Bridget and the unknown man. Michigan law may speak to this, as may the contractual arrangements for the relevant medical procedures, but otherwise?

    The Mass SJC, in the gay marriage decision, explicitly stated that marital status is irrelevant in determining parentage of a child, that public policy is to look at the biological parentage (i.e. DNA). If that’s true in MI, absent a per-nuptial agreement that spoke to this (if that was even legal), I don’t see where Sarah’s parental rights are coming from in the first place.

    And this is an issue that is likely to rise with subrogate motherhood, aka “rent-a-womb”, if it hasn’t already. Biologically, it’s not Sarah’s child. Now I can be (and likely will be) called all kinds of names for saying that, but biologically it isn’t her child.

    1. Dr. Ed: Given that the Michigan court treated both as parents, why would you have any doubt that they are indeed parents under Michigan law?

      Biological connection is only one of many ways of establishing parentage. That’s been true for a long time as to adoption, but it’s also pretty well settled as to sperm or egg donation. Two close friends of mine, a man and a woman, wanted to have children, but the woman had fertility problems, so they used the man’s egg and a donated sperm, and the woman carried the child to term — there’s no doubt that both are the daughter’s legal parents. Pretty familiar at this point.

      1. Man’s egg?

          1. Now that gender is determined by personal declaration, some men can already ovulate, produce eggs, give birth, choose abortion, etc.

            No need for any medical advances, although that will happen also.

            1. Neither one is an egg really, they’re both cells. The egg-like parts like the placenta and bag develop later.

              1. Pretty sure we’re talking about egg cells, not men laying eggs.

        1. D’oh! What an embarrassing slip-up on my part — man’s sperm and a donated egg, of course; sorry ….

          1. Why would there need to be donated eggs? It appears two ouvaries were involved.

            1. If there were two women, doesn’t that make four ovaries?

          2. I thought it was some oblique reference to the Egg And Sperm guy that used to spam the comments section.

            1. Ha! Haven’t thought about him for a while.

      2. Prof. Volokh,

        Adoption is adoption — and I’ve seen one lesbian adopt the other’s children and hence gain full parental rights/responsiblities in that manner, but that’s a legal process with a paper trail. (She even had to be interviewed by the state child protective folk.)

        The example you give involves an anonymous egg donor while this involves a known egg donor who is also a party to the dispute. Different facts — although there *also* is an anonymous sperm donor involved here, and no mention of his paternal rights.

        My perspective is that of an observer, and more along the lines of child support than custody, but my understanding is that DNA trumps (pun *not* intended) everything else.

        In _Goodridge v. Dept. of Public Health_ , 798 N.E.2d 941 (the gay marriage decision), Margaret Marshall mentioned: “… the Commonwealth’s strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546 (2002)” That’s my understanding, at least in the Brave New People’s Republic of Taxachusetts.

        As to your friends, hopefully they will remain happily married and they’ll be no need to determine the child’s legal status. And as to the MI Court — it was just reversed on other grounds — and perhaps neither party raised this issue at trial.

        All I know is what I have been told, which is that DNA trumps everything except a probate court ruling, e.g. a termination of parental rights, an adoption, etc. And lesbian divorce *is* a very new field of law….

  2. I wonder what the science says is more “in the best interest of the child:” Having a parent home 24-7 vs being dumped into daycare.

    I find it hard to believe the latter is comparable, much less superior.

    1. Five years as a Section 8 Inspector — I can tell you about *lots* of children who genuinely would have been better off in a orphanage. A lot better off……

      Sarah’s living with her parents — that’s not inherently bad but it can become quite unhealthy for the child, and I saw a few red flags in mention of how she hadn’t “moved on.” Cynical view of one who has seen too much…

      Yes, I agree with you — the best environment for a 2-year-old is at home with a 2-parent family, but when an anti-big-government person such as myself wants to see the state build orphanages, you can kinda guess what I’ve seen…

      1. I can tell you about *lots* of children who genuinely would have been better off in a orphanage.

        I’m pretty convinced that at least 20% of the children in the US would be better off in a well run and well funded orphanage than left with their parents. Society would also be better off. It might save money after the first 20 years of such a change because the need for LEOs, incarceration, etc. would likely be substantially reduced and those savings might more than offset the cost of raising a kid in a well run and well funded orphanage. As well, the offspring of the “was better off in orphanage” kids would probably be less likely to end up availing themselves of either an orphanage or LEOs, incarceration, etc. as the generation-to-generation cycle of dysfunction is broken.

        Unfortunately, there are several problems with implementing this. First, and most troublesome, is that it would be necessary to get kids into these orphanages at a very young age and it’s unlikely that many parents would volunteer to give up their kids – so government would have to step in and take them away and, even with a strong judicial review process, that just ain’t gonna be acceptable to the vast majority of people. Second, the “well run” part is hard to imagine sustaining – esp. since this would have to be largely government run and funded and that’s just incompatible with government processes/mentality. Third, public unions would take it over and, well, we know how that would end up…

    2. “I wonder what the science says is more “in the best interest of the child:” Having a parent home 24-7 vs being dumped into daycare.”

      I don’t see how that matters. In a divorce situation, where one parent was “stay at home”, given custody, even with child support payments, it’s highly unlikely that the former “stay at home” parent, now a single parent wouldn’t be forced to seek employment outside the home.

      1. I was dealing with women who had never married, often having four children by as many different men. As far as child support, they’d take the child around to every guy whom they had slept with, claim it was his, and offer to tell the state they didn’t know his name if he were to give them a monthly cash payment instead.

        Let’s say a court would have awarded her $100/month in child support. She’d tell him that the court will order him to pay $200/month, but she’ll offer him the bargain of only having to pay $150/month — in cash, to her. And they’d do this to multiple guys.

        The other thing to remember here is that cash doesn’t show up as her income. For example, Section 8 Housing is her paying 30% (gross) of her income, with HUD paying the rest, with WIC & EBT on a sliding scale based on her income. So she really wouldn’t personally get much of that $100 — while she’s getting all of that $150.

        And then what she does is let the drug dealer move in with her. As everything is in her name, it takes the cops a month or more to figure out where he’s moved to, another few weeks to build a case against him, at which point she screams “domestic violence” and becomes the victim. She’s held totally harmless for the drug dealing that she personally benefited from (and gets to keep the proceeds). And then she does it again with a different drug dealer.

        Now this is not true everywhere, but in Massachusetts, a single woman with a 2-year-old child would be getting the purchasing equivalent of a $70,000/year gross income — she wouldn’t see that much money, but in terms of what she got, she’d have to be earning that much to match it. Just sayin…

        1. It’s been a few days since I’ve seen Ed make up anecdotes to support his positions. I’ve been missing them. Welcome back.

          1. You do understand that I can’t (or won’t) name names, don’t you?
            And as to the $70K figure — that’s research from the CATO Institute.

            And bear in mind I am not even discussing the time that the 9MM bullet going into the adjacent unit was deemed OK. Again, a true story — somewhere, I have pictures of the holes in the plasterboard….

            1. Yes, we very much understand that you can’t name names.

    3. If we’re going to hold it against one parent that they’re a bread winner and thus wouldn’t be around as much to care for a child, then why wouldn’t we hold it against another parent that they aren’t a bread winner and thus (perhaps) wouldn’t have the economic resources needed to take care of the child? (And if they would become a bread winner after the separation, aren’t they then in a similar position as the other parent in that they wouldn’t be around as much to care for the child?)

      Part of the reason we don’t is because we’re going to force the bread winner parent, to the extent they don’t have custody, to provide economic resources to help take care of the child. So what they don’t bring to the parenting relationship is held against them, but what the other parent doesn’t bring to the parenting relationship (economic resources) isn’t held against that other parent.

      That brings me to my main (rhetorical) question. Why don’t we require a parent who isn’t a bread winner to provide caretaking services, even when they don’t have custody, just like we require a parent who is a bread winner to provide economic resources? We do the latter because, ostensibly, it’s in the best interests of the child. Wouldn’t the former also be in the best interests of the child? That is, it would be if we think having a parent around to take care of a child (rather than working) is a good thing such that we’d hold it against a parent that they wouldn’t be.

      If we’re going to hold one kind of deficiency against a parent (e.g., working such that they wouldn’t be around as much), we should hold the other kind of deficiency against the other parent (e.g., not working to create needed economic resources) rather than overlooking that deficiency because we’re just going to force the other parent to cover it.

      1. Good point — but the Feminists would scream….

      2. Childcare is a particular action.

        Requiring a portion of one’s resources from a job they chose is one thin; requiring a particular job be done is a bit…13th Amendment.

        1. Yeah, I (generally) don’t think we should force non-custodial parents to provide childcare. Among other reasons, it would often be impractical and would to some degree defeat the purpose when it comes to their not having custody to begin with.

          The point of my meandering was summed up in the last paragraph. I’ll oversimplify the consideration as concerning two kinds of parenting deficiencies: (1) not being around as much because you work to generate economic resources and (2) not generating economic resources because you don’t work and are thus around more. We shouldn’t hold the first kind of deficiency against a parent seeking custody to a greater degree than we would hold the second kind of deficiency against them. The reality that we often force a parent with the first kind of deficiency to cover the second kind of deficiency in another parent (and don’t often do the reverse) shouldn’t be a reason to, in custody considerations, penalize the first kind of deficiency relative to the second kind.

          1. OK. Yeah, that’s completely fair.

  3. The other interesting question is what was Sarah’s former occupation., and what her pre-childbirth earnings were.

    Both could have been YUPPIE Millennials who were doing relatively well when they married in 2012 and never really anticipated the impact of losing Sarah’s income. A lot of mothers don’t want to go back to work and the problem often is that they have a better paying job (with better benefits) than their husbands do.

    It will be interesting to see how that shakes out in the economic collapse that is emerging as the result of the Wuhan Gulagization…

  4. It’s fascinating that men have been complaining about this for decades, but in order to get a court to consider the issue the case had to involve both parents being women.

    1. Yes, i noticed this — and that two of the judges were female.

    2. Excellent point, Pete,
      This is the first case where a court has had to address the rights of a working parent vs the non-working (out of the home, that is) parent. True, you have to ignore the tens of thousands of cases of heterosexual couples where courts HAVE addressed exactly this issue over the past many decades in order for your premise to be true. In my one courtroom, here in LA, I have had literally 200 cases where that issue was in play. It’s actually very very very common.

      But we live in a mostly fact-free world now. So, what the heck…why not make your claim? Can’t hurt.

      1. Many courts have considered this issue and regularly come down on the side of the stay at home parent.

        The point stands that this hasn’t happened when a man was the working parent.

      2. My point wasn’t that the issue of working vs. non working parent wadn’t addressed. The issue is that is generally addressed by ignoring the contribution of the working parent (generally male).

        1. Well, not in Dependency Court. Well, not in my particular courtroom of Los Angeles Dep. Ct, to be more specific (and accurate). Not for decades. Obviously, different judges will come into the building with their own biases. And I don’t doubt that the working father has not gotten a fair shake much of the time. But I really object–in a legal blog–to the declarations of always and never . . . since they are (almost!) never correct.

          1. I’ve never been to Los Angeles (nor particularly wanted to), I’ve never been west of Chicago (and even that took some convincing to go) — but as to the three states that I do know something about, Pete S is quite accurate….

            1. Ed,
              You’d hate LA. Almost no one here swallows bleach or injects it into their body when they’re feeling ill.

              1. Actually — hopefully — you ALL drink bleach.

                What is it that you think the water company uses to purify your drinking water and to remove all the bad viri, bacteria, and other stuff that would get you sick were you to drink water containing it? Why do you think you aren’t dealing with daily outbreaks of cholera, dysentery, and other waterborne diseases?

                You drink bleach….

                It’s called “chlorination” and involves adding relatively small amounts of either bleach or a mixture of bleach and something else — and letting the water settle. In some water districts (e.g. MA), they also add small amounts of Drano (sodium hydroxide) to raise the pH because there still are a lot of the old lead-lined iron pipes being used for carrying the water. (Boston is *still* finding old wooden pipes.) Like LA, we rely on an open reservoir , the rain picks up CO2 from the air and hence becomes slightly acidic, and without the Draino, the acidic water would be leaching water out of the lines.

                As an aside, *not* adding Draino was one of the several mistakes they made in Flint, Michigan. But I digress.

                And yes, you drink bleach…

  5. After reading this opinion, anyone smart enough to be a judge (not a really high standard) should be able to write an appeal-proof decision awarding custody to either parent.

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