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STATE OF MICHIGAN COURT OF APPEALS

RALUCA LOWE, Plaintiff-Appellee/Cross-Appellant, v STEVEN RUSSELL LOWE, Defendant-Appellant/CrossAppellee.

UNPUBLISHED December 14, 2010

No. 298052 Oakland Circuit Court LC No. 2008-745497-DM

Before: JANSEN, P.J., and SAWYER and O'CONNELL, JJ. PER CURIAM. In this domestic relations case, defendant appeals by right the trial court's order granting plaintiff sole legal and physical custody of their son and awarding defendant three nights a week of parenting time. Plaintiff cross-appeals the same order. We affirm. I Defendant argues that the trial court erred by finding that the child had an established custodial environment with plaintiff. He also argues that the trial court erred in its consideration and application of the statutory best-interest factors and by granting sole legal and physical custody of the child to plaintiff. A Defendant first argues that the trial court erred by finding that an established custodial relationship existed with plaintiff. We disagree. Whether an established custodial environment exists is a question of fact. MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001). The trial court's findings of fact are reviewed under the great weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. McIntosh v McIntosh, 282 Mich App 471, 474-475; 768 NW2d 325 (2009). An established custodial environment exists if, over an appreciable period of time, the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. MCL 722.27(1)(c); Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d 480 (2010) (Pierron II). The existence of a temporary custody order does not preclude a finding that an established custodial environment exists with the noncustodial parent or that an -1-

established custodial environment does not exist with the custodial parent. Berger v Berger, 277 Mich App 700, 706-707; 747 NW2d 336 (2008). The trial court noted that plaintiff and defendant shared joint legal custody and plaintiff had sole physical custody during the course of the divorce proceedings. The trial court found: The child has resided with both parties from birth. He is [two] years old. The child seeks emotional support from [p]laintiff. Evidence presented revealed that [the child] spends the majority of his time with [p]laintiff. She is and has been the primary custodian. The child looks to [p]laintiff for guidance, discipline, the necessities of life, and parental comfort . . . . The court has also considered the age of the child, the physical environment, and the inclination of the custodian and the child as to the permanency of the relationship. The trial court correctly ruled that an established custodial environment existed with plaintiff. When plaintiff and defendant lived together at the marital home, plaintiff was the primary caregiver of the child. Plaintiff and defendant both testified that the child looked to plaintiff for guidance and discipline. It is true that during this period, defendant was solely responsible for plaintiff's and the child's expenses. However, plaintiff was primarily responsible for the child's well-being. She breastfed him, took him to the doctor, and watched him. Plaintiff described asking defendant to take care of the child on at least one occasion when defendant refused because he had plans to go "go-cart racing." In addition, during this period defendant would sometimes not return home at night because of disagreements with plaintiff, leaving plaintiff and the child alone in the marital home. Moreover, defendant initially stopped living with plaintiff as a result of domestic violence he committed against plaintiff for which he was convicted. Defendant was not entitled to return to the marital home as a result of his probation conditions. From April 2008 until November 2008, plaintiff, the child, and plaintiff's mother, Viorica Rusu, resided in the marital home without defendant. During that period, defendant only saw the child on the weekends under the supervision of defendant's parents. As a result, defendant cannot claim that plaintiff altered the established custodial environment when she moved to Grosse Pointe Woods with the child and Viorica. Indeed, at the time of plaintiff's move, defendant was not allowed to live in the marital home and had limited contact with the child. The evidence in the record indicates that defendant adequately cared for the child, but that the child's primary living environment was with plaintiff. We cannot conclude that the evidence clearly preponderates against the trial court's finding that an established custodial environment existed with plaintiff. B Defendant next argues that the trial court erred by awarding plaintiff sole legal and physical custody. We disagree. In a child custody dispute, the trial court's findings of fact, including its findings regarding the statutory best interest factors, are reviewed under the great weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. McIntosh, 282 Mich App at 474. In reviewing the trial court's findings, we defer to the trial court's determinations of credibility. Id. We review the trial court's legal findings for clear error and reverse only when the trial court incorrectly chooses, interprets, or

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applies the law. MCL 722.28; McIntosh, 282 Mich App at 475. The trial court's ultimate decision concerning custody of the child is reviewed for an abuse of discretion. Id. Child custody disputes must be resolved in the child's best interests, according to the factors set forth in

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