                           STATE OF MICHIGAN

                            COURT OF APPEALS



KIMBERLY MARIE MARIK,                                                FOR PUBLICATION
                                                                     July 24, 2018
               Plaintiff-Appellee,

v                                                                    No. 333687
                                                                     Macomb Circuit Court
                                                                     Family Division
PETER BRIAN MARIK,                                                   LC No. 2011-000651-DM

               Defendant-Appellant.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

O’CONNELL, J. (concurring).

        I concur with Judge Cameron’s well written majority opinion. I write separately to
propose an Inevitable Remand Rule. Generally speaking, the controlling issue in any child
custody case is the child’s established custodial environment (ECE) at the time of the hearing.
This is true whether the issue presented is legal custody or physical custody of the minor child.
As I stated in Lieberman v Orr, 319 Mich App 68, 105; 900 NW2d 130 (2017) (O’CONNELL, J.,
dissenting), “the controlling consideration is the child’s custodial environment at the time of the
hearing.”

        When a trial court fails to articulate, with precision, which party has, or which parties
share, the established custodial environment, and it cannot be discerned from the lower court
record, the Court of Appeals should invoke the Inevitable Remand Rule with the help of a
motion from one of the parties. Simply put, on appeal, when the trial transcript is devoid of a
trial court’s findings on which party has, or which parties share, the established custodial
environment, a motion to remand should immediately be filed with the Court of Appeals. The
motion should articulate that the trial court erred and request a remand for an evidentiary hearing
for the trial court to decide which party has, or which parties share, the ECE. (Needless to say,
the motion should not be filed if the trial court has made a finding on the ECE and a party simply
disagrees with the trial court findings. Such a motion would be considered frivolous.)

         In the present case, the trial court decided a parenting time issue and a school issue on
June 13, 2016, without first deciding the ECE of the minor children. The majority opinion sets
forth the framework for this Court’s review of the trial court’s decision; there is no need to repeat
it in this concurring opinion. (Both the majority and dissenting opinions in Lieberman, 319 Mich
App 68, have an excellent discussion of this issue.) But, it is now approximately two years since

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the trial court made its initial decision, and we are remanding this case for a determination of the
ECE. Of course, the trial court can consider any change of circumstances in the past two years.
Needless to say, for numerous reasons, such a process is a colossal waste of time, damaging to
the children, very expensive to the parties, and highly inefficient in deciding child custody
matters.

      I write this concurring opinion simply to propose and advocate an Inevitable Remand
Rule when the trial court fails to make a finding regarding the established custodial environment.

                                                             /s/ Peter D. O’Connell




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