holding that “on remand, the court should consider up-to-date information, including the children’s current and reasonable preferences, as well as the fact that the children have been living with the plaintiff during the appeal and any other changes in circumstances arising since the trial court’s original custody order.”
How later courts described this case
- holding that “on remand, the court should consider up-to-date information, including the children’s current and reasonable preferences, as well as the fact that the children have been living with the plaintiff during the appeal and any other changes in circumstances arising since the trial court’s original custody order.”
- explaining that the “great weight of the evidence standard applies to all findings of fact” and that a trial court’s finding on best-interest factors “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
- holding that “[b]ecause of its limited probative value and the significant potential for prejudicially ascribing disproportionate weight to that fact, extramarital conduct, in and of itself, may not be relevant to factor f”
- stating that “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.”
Written by the judges who cited it.
The opinion
Griffin, J.
(concurring in part and dissenting in part). Although I agree with the bulk of the lead opinion, I write separately to express my disagreement with its conclusion that extramarital conduct may not be probative of moral fitness under the Child Custody Act. 1 .
The child custody statute endeavors to gauge parental fitness through consideration of ten specific factors, all of which must be considered. 2 Collectively, they determine "parental fitness.” Factor f requires lower courts to consider "the moral fitness of the parties involved.” Despite this affirmative command, the lead opinion today concludes:
We hold that in making that finding, questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.
Extramarital relations are not necessarily a reliable indicator of how one will function within the parent-child relationship. While such conduct certainly has a bearing on one’s spousal fitness, it need not be probative of how one will interact with or raise a child. Because of its limited probative value and the significant potential for prejudicially ascribing disproportionate weight to that *901 fact, extramarital conduct, in and of itself, may not be relevant to factor f.[ 3 ]
The holding of the lead opinion with respect to factor f amounts to a usurpation of legislative authority. Inclusion of factor f in the Child Custody Act reflects a decision by the Legislature that moral fitness is relevant to the "best interests of the child” determination. Since extramarital conduct is probative of moral fitness, such conduct merits consideration in custody decisions.
While the statute divides parental fitness into various aspects, there is no similar subdivision of moral fitness into what is relevant to parental fitness and what is not. All actions bearing on one’s moral fitness necessarily become relevant to one’s parental fitness by virtue of factor f. While disagreement may exist over the nexus between moral fitness and parental fitness, 4 arguments of this type are more appropriately addressed to the Legislature.
I do not suggest that extramarital conduct should be dispositive. As expressed by the Court of Appeals in Feldman v Feldman, 55 Mich App 147, 151 ; 222 NW2d 2 (1974):
[M]oral fitness of the competing parties is only one of ten factors which the court considers in child custody disputes. It is important to place the highly prejudicial evidence against plaintiff in the proper perspective[ 5 ]
Extramarital conduct should be considered and evaluated in a fair and judicious manner._
*902 Accordingly, I would reverse the decision of the Court of Appeals with respect to factor f.
Riley, J., concurred with Griffin, J.
MCL 722.23; MSA 25.312(3).
Bowers v Bowers, 198 Mich App 320, 328 ; 497 NW2d 602 (1993).
Ante at 887.
See Campbell, Child custody evaluations and appropriate standards of psychological practice, 71 Mich B J 278, 278-280 (1992).'
See also Zawisa v Zawisa, 61 Mich App 1 ; 232 NW2d 275 (1975).