                           STATE OF MICHIGAN

                            COURT OF APPEALS



JOSE ALBERTO HERNANDEZ,                                              UNPUBLISHED
                                                                     July 7, 2016
               Plaintiff-Appellee,

V                                                                    No. 328886
                                                                     Allegan Circuit Court
SHANITA LEE REYNOLDS,                                                LC No. 11-049483-DC

               Defendant-Appellant.


Before: MURPHY, P.J., and WILDER and BORRELLO, JJ.

WILDER, J. (dissenting).

        I respectfully dissent. Because the trial court based its custody decision on stale
evidence—and refused to consider any new evidence—I would reverse and remand this matter
for the trial court to consider the custody issue anew in light of up-to-date information.

        Although I, like the majority, do not take issue with the facial sufficiency of the trial
court’s stated findings, nevertheless, in terms of substance, those findings were supported by a
woefully stale record, particularly given the age of the minor child involved. The bench trial
below concluded on October 15, 2013, when the child was a little over two years old, and yet the
trial court did not rule on the custody issue until February 19, 2015, at which time the child was
nearly three-and-a-half years old. Notwithstanding, when it ruled, the trial court expressly
refused to consider any new “events or evidence offered by [defendant mother] that [we]re not
addressed in the existing hearing record.”1

       “Custody determinations should be expedited, not left hanging or based on stale
evidence.” Shelters v Shelters, 115 Mich App 63, 68; 320 NW2d 292 (1982). Given the passage


1
  Because it is the child’s interest that is safeguarded by the best-interests analysis—not that of
the parents—it is immaterial that both parties agreed with the trial court’s decision to cancel the
evidentiary hearing that was originally scheduled for February 19, 2015. See MCL 722.25(1);
Lombardo v Lombardo, 202 Mich App 151, 159-160; 507 NW2d 788 (1993) (“The controlling
consideration in child custody disputes between parents is the best interests of the children. . . .
Parties to a divorce judgment cannot by agreement usurp the court’s authority to determine
suitable provisions for the child’s best interest.”).


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of time, and the trial court’s refusal to consider up-to-date information, the record was
insufficient to support either the trial court’s best-interests determination—particularly under the
applicable clear and convincing evidence standard—or its finding regarding the child’s
established custodial environment, particularly since the trial court refused to consider any
evidence of where the child had been living, or with whom, during the 16 months immediately
preceding its ruling.

        Moreover, because of the trial court’s reliance on stale evidence, I disagree with the
majority’s analysis of best-interests factors (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.”), (d) (“The length of time the child has
lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”), and
(e) (“The permanence, as a family unit, of the existing or proposed custodial home or homes”),
under MCL 722.23. Considering only the outdated record evidence, I respectfully disagree that
it was possible for the trial court to cogently analyze these factors.

       In sum, the record in this case was simply too stale to support the trial court’s findings.
For that reason, I would reverse and remand for the trial court to reconsider the custody issue
with due consideration of up-to-date information.



                                                               /s/ Kurtis T. Wilder




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