COA 376389 MICHAEL JOSEPH GORDON V KIMBERLY SUZANNE GORDON Opinion - Per Curiam - Unpublished 6/12/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MICHAEL JOSEPH GORDON,
Plaintiff-Appellant,
UNPUBLISHED
June 12, 2026
10:24 AM
v No. 376389
Leelanau Circuit Court
Family Division
KIMBERLY SUZANNE GORDON, LC No. 2021-010641-DM
Defendant-Appellee.
Before: REDFORD, P.J., and WALLACE and LIEVENSE, JJ.
PER CURIAM.
Plaintiff, Michael Joseph Gordon, appeals as of right a June 25, 2025 decision and order
after de novo review hearing (Order) that adopted an April 4, 2025 referee recommendation and
order (Referee Recommendation) to the extent that it awarded primary physical custody of his
three minor children to defendant, Kimberly Suzanne Gordon, and fined plaintiff for contempt of
court for denying defendant over eight months of weekly parenting time to defendant. We affirm.
I. BRIEF FACTUAL SUMMARY
The parties are parents of four children, three of whom are minor daughters between the
ages of 16 and 11. They divorced in November 2021, and pursuant to the judgment of divorce,
exercised a week on/week off parenting-time schedule with flexibility to accommodate the
children’s needs and their respective schedules. In May 2022, defendant moved back into the
marital home, which had been awarded to plaintiff in the judgment of divorce, and the parties co-
parented and attempted reconciliation of their relationship. In July 2024, the parties again
separated. Defendant had begun a relationship with her significant other and she moved into a
residence that she shares with him.
The parties’ ability to coparent changed at this point. The children spent a few overnights
with defendant at her new residence; however, in July 2024, both parties filed motions regarding
custody, parenting time, and support. Each requested full physical custody of the children, among
other things. The basis of plaintiff’s motion was the children’s emotional state and their expressed
desire not to live with defendant and her significant other. Defendant’s motion described abuse in

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her relationship with plaintiff and claimed that he was turning the children against her. Per order
dated July 29, 2024, the trial court denied both parties’ motions, finding that each “make[s] serious
allegations against the other’s ability to care for the children” with “starkly contrasting accounts.”
The trial court referred the matter to the referee “for an early status conference and, if not resolved,
an expedited hearing.”
This status conference was held on August 13, 2024, and eight days later, defendant filed
a motion to show cause for denial of parenting time. On November 22, 2024, following mediation,
the court entered a stipulation and order that included an interim mediation agreement signed by
both parties on November 22, 2024 (Interim Order). The Interim Order required defendant and
the children to participate in reunification therapy facilitated by a licensed clinical social worker,
and also temporarily modified the parenting-time schedule to provide defendant with parenting
time on specific dates, times, and locations, including every Saturday beginning December 7,
2024. The Interim Order expressly included the parties’ agreement that “an objective of the
reunification therapy and the temporary modified parenting time [was] to strengthen the
relationship between Defendant and the minor children so as to resume the week on/week off
parenting time schedule[d].”
The difficulties between the parties continued. On December 16, 2024, defendant filed a
motion to have her name removed from the mortgage on the marital home because she claimed
that plaintiff refused to do this even though the marital home was awarded to him in the judgment
of divorce in exchange for a marital equity payment. Plaintiff’s attorney represented in court that
her client was not opposed to this, and the judgment of divorce was amended to reflect this on
March 17, 2025.
On March 13 and 19, 2025, the referee held an evidentiary hearing on the parties’ motions
to change custody. Defendant also asked that plaintiff be held in contempt of court for denying
her parenting time with her children for almost 32 weeks as of the date of the hearing.
Evidence was presented at the hearing that the children were not happy that defendant
moved out of the marital home and that they called plaintiff in tears when they were at defendant’s
home, wanting to return home. Plaintiff testified that he was “not exactly sure what happened.
But something not safe happened. I mean, they didn’t feel safe, they were scared to go there.” He
also testified that he appeared at their school to pick them up even on the days of defendants’
parenting time, at the children’s request, despite defendant asking him not to do this, and he
identified no material consequences imposed if or when one or more of the children refused to go
to defendant’s residence or to meet for her parenting time. While plaintiff testified that he did not
really know defendant’s significant other, he acknowledged that before the divorce, he and
defendant socialized with him and his ex-wife, and that their children spent time together. None
of the witnesses who testified articulated any specific safety concern with defendant’s residence,
her significant other or his children, nor was any evidence presented during the proceedings to
support plaintiff’s concerns. And defendant’s testimony and evidence presented regarding her
current residence demonstrated to the referee and the court that this residence was more than
adequate.
Defendant testified about at least one instance of physical abuse by plaintiff toward her,
i.e., a “body bump” during the exchanges to pick up the children (which plaintiff denied), and at

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least one instance in which plaintiff undermined her attempts to discipline the children. In the
latter instance, one child left defendant’s residence and drove to plaintiff’s home in tears. Plaintiff
testified that he did not discipline this child or bring her back to defendant because the child’s story
did not line up with defendant’s as to the events that occurred that day. He testified that it was
unlike this child to cry or exhibit such strong emotions, and, therefore, he felt the issue was bigger
than the lost privileges that defendant imposed.
Defendant felt the children were being manipulated by plaintiff. Since July 2024, she
testified that she had 23 hours total in visits with the children. One child did not attend the
parenting time ordered in the parties’ stipulated interim temporary mediation agreement, but the
younger two children came. She testified as to a positive interaction with all three children during
a visit to see her father, who was seriously ill. However, when defendant’s father passed away,
plaintiff told defendant that none of the children wanted to go to the funeral. Two of them
ultimately attended. Defendant understood that the week on/week off schedule would continue in
January 2025, and this did not occur, nor was she allowed to see the children on Saturdays as
agreed to in the Interim Order.
The licensed therapist assigned to provide reunification therapy testified that the children
expressed anger toward defendant and that defendant initially reacted defensively to these feelings.
Defendant made progress, however, as therapy continued. Plaintiff was engaged in scheduling
and ensuring the children were at the therapy reunification sessions. The therapist testified that,
overall, “the girls do need their mom . . . I always believe that there is a chance for kids to reunify,
but it’s got to be on their terms.” At one point, the therapist recalled one of the children stating
that she would come live with her mom, while another expressed anger, stating that she was not
okay with going and seeing her mom, and that she doesn’t like her mother’s significant other or
his kids. All three children expressed to the therapist that they did not feel safe at defendant’s
home. However, on at least one occasion, the therapist’s note stated that a statement one of the
children made to her sounded scripted.
In the Referee Recommendation, the referee found proper cause to revisit the custody order
entered with the judgment of divorce in 2021 because an established custodial environment existed
with both parents and that plaintiff’s “attempts to destroy the established custodial environment
only served to hurt the children.” The referee evaluated each factor encompassed within the “best
interests of the child” analysis in MCL 722.23 and found that many of them (i.e., Factors (a), (b),
(f), (g), (j), (k) and (l)) favored defendant largely because of actions and behaviors by plaintiff that
undermined defendant as a parent and negatively impacted the children’s relationship with her.
The referee found that plaintiff took actions to undermine defendant’s ability to provide
appropriate guidance to the children by not allowing her to withhold certain privileges in response
to inappropriate behavior and by showing up at school every day to pick them up thereby making
them choose whether or not to go to defendant’s home. The other factors were evaluated as equal.
The referee ultimately awarded defendant primary physical custody, while maintaining the
parties’ joint legal custody of their children. Plaintiff was awarded parenting time every other
weekend. He was also found in contempt for denying defendant over 8 months of weekly
parenting time to defendant and ordered to pay a fine of $1,000 within 30 days of the date the
Order is served on the parties. Defendant was awarded makeup parenting time for the entire
months of April, June, and August 2025, and, any softball tournament for any of the girls that

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occurs during defendant’s parenting time, plaintiff was ordered to “secure and pay for hotel rooms
for children and [d]efendant so they can attend.”
Plaintiff objected to the referee’s recommendation, and the trial court held a de novo review
hearing on June 6, 2025. In its order, the trial court disagreed with plaintiff that the referee erred
by finding that the children had an established custodial environment with defendant. While
recognizing that there “was a marked change in the nature of the children’s contacts with
[d]efendant after the July 2024 separation, compared with the years leading up to that point,” the
trial court found it appropriate that the referee “did not rely solely upon circumstances as they
existed in July 2024 in making her findings” and, instead, “took into account the totality of the
circumstances, in finding that an established custodial environment existed with both parties.”
Moreover, testimony at the de novo hearing indicated that the children were residing with
defendant since April 4, 2025, without incident.
The trial court found that Factor (a) weighed in favor of both parties, rather than in
defendant’s favor as the referee determined, because he agreed with plaintiff that “what was found
to be an unreasonable withholding of parenting time by plaintiff” was not applicable under this
factor. However, this was relevant to the referee and the trial court’s findings that Factors (b), (d),
and (e), which the court agreed favored defendant. The trial court cited specific instances in the
record evidencing plaintiff’s interference with defendant’s parenting time, no material
consequences imposed if the children chose not to attend defendant’s parenting time, no evidence
of any specific safety concern, and the fact that defendant secured a 12-month lease on an
appropriate residence evidencing that both parties had the equal ability for permanence for the
children.
With respect to Factor (f), addressing moral fitness, the trial court found that plaintiff’s
actions in withholding the children and allowing them to choose whether to go to defendant’s home
“is tantamount to a violation of the parenting time order in the Judgment [of Divorce],” which is
“illegal behavior having a direct impact on how one functions as a parent.” Factors (j) and (l) were
affirmed for similar reasons. With respect to Factor (i), the trial court found no basis in the record
to support plaintiff’s claim that the referee’s interview with the children “went beyond a reasonable
inquiry into the children’s parental preferences.” The trial court noted that the referee did not
disclose the substance of her interview, and, moreover, plaintiff’s claims imply that he discussed
the in camera interview with the children, which concerned the trial court greatly. Plaintiff’s claim
under Factor (i) were without merit.
Ultimately, the trial court affirmed and adopted the Referee Recommendation. It found
that defendant “has proven by clear and convincing evidence that she should be awarded primary
physical custody of the children, with legal custody, and parenting time (including makeup
parenting time) as ordered in the Referee Recommendation and Order.” Plaintiff’s fine for
contempt of court was reduced to $100.
Plaintiff now appeals the Order, claiming that the trial court violated Michigan law in
finding an established custodial environment existed between defendant and her children, and that
the trial court committed clear legal error in modifying custody based primarily on a denial of
parenting time and in using the in camera interview with the children to investigate substantive
claims of alienation. Having reviewed the record and the parties’ briefs and applying the

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deferential standard to the trial court’s factual findings required by Michigan law, we do not find
the trial court’s conclusions were against the great weight of the evidence or a palpable abuse of
discretion, and we therefore affirm.
II. STANDARDS OF REVIEW
This Court gives significant deference to the trial court’s decisions in an order such as this
because, quite simply, Michigan law requires it. Specifically, MCL 722.28 states:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.
Three standards of review apply. As stated in Vodvarka v Grasmeyer, 259 Mich App 499, 507-
508; 675 NW2d 847 (2003):
[This Court] appl[ies] three standards of review in custody cases. The great
weight of the evidence standard applies to all findings of fact. A trial court’s
findings regarding the existence of an established custodial environment and
regarding each custody factor should be affirmed unless the evidence clearly
preponderates in the opposite direction. An abuse of discretion standard applies to
the trial court’s discretionary rulings such as custody decisions. Questions of law
are reviewed for clear legal error. A trial court commits clear legal error when it
incorrectly chooses, interprets, or applies the law. [Quotation marks and citations
omitted.]
A distinct abuse of discretion standard applies in child-custody matters. See Sabatine v Sabatine,
513 Mich 276, 296; 15 NW3d 204 (2024) (“[W]e reiterate that appellate courts have a statutory
obligation under MCL 722.28 to affirm trial court determinations in child-custody cases unless
they are based on findings of fact against the great weight of the evidence, a palpable abuse of
discretion, or a clear legal error on a major issue.”). See also Barretta v Zhitkov, ___ Mich App
___, ___; ___ NW3d ___ (2023) (Docket No. 364921); slip op at 5 (“An abuse of discretion, for
purposes of a child custody determination, exists when the result is so palpably and grossly
violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the
exercise of passion or bias.”) (quotation marks and citation omitted); Maier v Maier, 311 Mich
App 218, 221; 874 NW2d 725 (2015). None of the court’s factual findings are against the great
weight of the evidence, no clear legal error is present, and the trial court’s decision as to the custody
here was not an abuse of discretion. We affirm.
III. ANALYSIS
A. ESTABLISHED CUSTODIAL ENVIRONMENT
The trial court did not commit clear error in finding that an established custodial
environment existed with both parents at the time of the referee hearing. While it is undisputed
that the children were primarily living with plaintiff and had limited contact with defendant at the

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time of the referee hearing, an “established custodial environment” is defined more broadly than
plaintiff suggests. Moreover, even if the trial court had found an established custodial environment
existed with plaintiff, its analysis would not change. This is because the standard to change this is
clear and convincing evidence, which is the standard the trial court applied on the record before it.
An established custodial environment exists when “over an appreciable 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). Relevant factors include the “age of the child, the
physical environment, and the inclination of the custodian and the child as to permanency of the
relationship . . . .” Id. If an established custodial environment exists, the trial court may not amend
a prior order to change this unless it finds clear and convincing evidence on the record “that it is
in the best interest of the child” to do so. Id. A modification in parenting time does not necessarily
signal a change in an established custodial environment. Sabatine, 513 Mich at 290-291. Rather,
the trial court must consider whether the change in parenting time alters “whom the child naturally
looks to for guidance, discipline, the necessities of life, and parental comfort,” id. at 291 (quotation
marks and citation omitted), and this Court must give “proper deference” to the trial court’s
findings, especially those related to “specific facts relevant to this family,” id. at 292.
The specific facts presented to the trial court support its finding that the children’s
established custodial environment as of the date of the hearing was with both defendant and
plaintiff, and that defendant had proven by clear and convincing evidence that a change was in the
best interests of the child. The children were between the ages of 16 and 11. Both parties testified
to years in which the children naturally looked to both parties for guidance, discipline, the
necessities of life, and parental comfort. This included defendant coaching the children’s sports
teams, working at their school, and coparenting with plaintiff both before and after their divorce
in 2021. While defendant’s relationship with the children was strained after she moved out of the
marital home in July 2024, she continued efforts to reach out to them, participated in reunification
therapy, included them in her family events in the context of her father’s illness and passing, and
testified as to positive interactions. Both plaintiff and the reunification therapist testified regarding
the children’s relationship with defendant before July 2024 and their current need for her, as their
mother.
While the children were primarily living with plaintiff in the marital home at the time of
the referee hearing, this is not determinative. In fact, our Supreme Court cautioned against placing
“too much or too little emphasis on the child’s physical environment” in determining whether an
established custodial environment exists. Sabatine, 513 Mich at 293. “It is the trial courts that are
typically in the best position to analyze the factual complexities of child-custody cases.” Id. And,
here, we find no clear error in the trial court’s finding that an established custodial home existed
with both parents at the time of the referee’s hearing and the de novo review.
In his brief on appeal, plaintiff cites Baker v Baker, 411 Mich 567; 309 NW2d 532 (1981).
This case, however, demonstrates the appropriateness of the trial court’s decision. In Baker, the
Supreme Court recognized that when a parties’ relationship dissolves and one or both relocates,
the location in which the child was born and raised is not necessarily the established custodial
environment for purpose of MCL 722.27. Id. at 580-582. Michigan courts consider the child’s
relationship with both parents before and after the separation. Id. Here, there is no dispute that

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the children had an established custodial environment with plaintiff, and the referee and trial court
appropriately found an established custodial environment with defendant as well.
Moreover, the trial court applied the correct legal standard even if it had found the
established custodial environment was with plaintiff. Specifically, because the trial court found
an established custodial relationship with both parties, it applied the clear-and-convincing standard
to defendant’s motion for a change in custody as instructed by our Supreme Court. See Sabatine,
513 Mich at 290-291 (“If [a custody] modification would change the child’s established custodial
environment, the clear-and-convincing-evidence standard applies to the best-interest
inquiry . . . .”) The trial court ultimately held that defendant proved “by clear and convincing
evidence that she should be awarded primary physical custody of the children, with legal custody
and parenting time (including makeup parenting time) as ordered in the Referee Recommendation
and Order.” We find no clear error in this holding and, therefore, affirm.
B. BEST INTERESTS
Plaintiff next contends that the trial court committed clear legal error by deciding to modify
child custody “based almost exclusively” on plaintiff’s “parenting time denials.” We respectfully
disagree. While “[d]isputes regarding visitation and contempt are not a proper basis for changing
custody,” Adams v Adams, 100 Mich App 1, 13-14; 298 NW2d 871 (1980), we find no clear error
in the trial court’s reference to plaintiff’s behavior and actions toward defendant with respect to
the parenting time as applied to the factors that the trial court ultimately found to favor defendant,
i.e., Factors (b), (f), (j), (k), and (l).
The trial court cited plaintiff’s interference with defendant’s parenting time as directly
implicating Factors (f) and (j). Neither finding is against the great weight of the evidence. Factor
(f) addresses moral fitness. The question here is not “who is the morally superior adult” but, rather,
whether the “parties’ relative fitness to provide for their child, given the moral disposition of each
party as demonstrated by individual conduct.” Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d
889 (1994). In this case, the trial court found that plaintiff’s willful denial of parenting was
“tantamount to violation” of the judgment of divorce, which is “illegal behavior having a direct
impact on how one functions as a parent.” This finding is not against the great weight of the
evidence. Even if the parties’ Interim Order modified the judgment of divorce indefinitely, there
is no dispute that plaintiff knew what the Interim Order required with respect to defendant’s
parenting time, and that at least one child did not attend the Saturday meetings scheduled therein.
The trial court’s finding that this factor weighed in defendant’s favor is not against the great weight
of the evidence or demonstrate clear error under Michigan law.
Factor (j) addresses the parties’ respective “willingness and ability . . . to facilitate and
encourage a close and continuing parent-child relationship” with the other parent. Here, the trial
court cited plaintiff’s actions in showing up at school to pick up the children knowing that it was
defendant’s parenting time and his failure to provide meaningful consequences when one or more
of the children chose not to go to defendant’s home. The trial court found these actions showed a
lack of willingness or ability to facilitate a close relationship between defendant and the children
after July 2024. In other words, it was not plaintiff’s violation of a court order that the trial court
relied on to find in defendant’s favor, but plaintiff’s actions and the effect this had on defendant’s
relationship with the children.

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This was true with respect to other factors, as well. On Factor (b) (“[t]he 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”), the trial court affirmed
the referee’s finding that plaintiff “lacks the disposition to give appropriate guidance regarding the
children’s ongoing contact” with defendant. In this context, the trial court and the referee again
cited actions by plaintiff—including not allowing defendant to enforce certain consequences for
defiant behavior and in daily being at school to pick up the children on defendant’s parenting
weeks—as evidence that plaintiff lacked capacity and the disposition to appropriately guide and
raise the children. The judgment of divorce was referred to only in the context that plaintiff knew
of expectations set forth therein, but the court did not rely on plaintiff’s violation of it. Rather, it
was his actions in interfering with the children’s relationship with their mother for purposes of this
factor.
Concerning Factor (k) (“[d]omestic violence, regardless of whether the violence was
directed against or witnessed by the child”), the trial court discussed the allegations of domestic
violence leveled by defendant against plaintiff, as well as plaintiff’s denials, and concluded that
defendant was more credible.
And, with respect to Factor (l) (“[a]ny other factor considered by the court to be relevant
to a particular child custody dispute”), the trial court concluded that plaintiff should be held in
contempt of court because there was no reason for him to not have taken the children for parenting
time with defendant, and his other arguments against a finding of contempt were without merit.
The bottom line is that the trial court’s analysis of Factors (b), (f), (j), (k), and (l), was not
limited to plaintiff’s violation of the court orders or his denial of parenting time, but properly
considered specific behaviors and actions by plaintiff that implicated each of the factors discussed
earlier. The trial court’s factual finding that plaintiff undermined defendant as a parent and in the
context of her relationship with the children is not against the clear weight of the evidence but,
instead, is supported by testimony on the record. And, its overall determination as to custody does
not demonstrate an abuse of discretion. See Vodvarka, 259 Mich App at 507-508.
C. IN CAMERA INTERVIEW
Plaintiff next argues that the referee improperly used the in camera interview of the
children to investigate the claims of parental alienation instead of merely to discover the children’s
preferences.
MCL 722.23(i) addresses “[t]he reasonable preference of the child, if the court considers
the child to be of sufficient age to express preference.” No party has presented any evidence
suggesting that the referee’s inquiry went beyond that allowed under Michigan law for children of
this age. The referee simply stated that she had taken the children’s preferences into account.
After plaintiff filed an objection stating that it appeared that the interview had been used to
determine if there were any legitimate safety concerns in defendant’s home, the trial court noted
that any such information regarding the interview was not in the record. It also stated that even if
the referee had discussed the issue of a legitimate safety concern, this would be pertinent to the
issue of a child’s reasonable preference.

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On appeal, plaintiff again argues that the referee, in interviewing the children, went beyond
inquiring about the children’s preferences, which is prohibited. See Molloy v Molloy, 247 Mich
App 348, 351; 637 NW2d 803 (2001), vacated in part on other grounds 466 Mich 852 (2002). But
Molloy indicates that an inquiry into the rationale for a preference is appropriate. Id. at 359. More
importantly, plaintiff, to prove his allegation, relies on the referee’s statement under Factor (e) that
the children found defendant’s boyfriend’s family “weird.” He contends that this information must
have been elicited at the in camera interview. But the referee, in making this statement, explicitly
referred to evidence at “the [custody] hearing.” And this testimony about alleged “weirdness” was
indeed elicited at the custody hearing. Plaintiff contends that the trial court “did nothing to correct
the error committed by the Referee in using the children’s in camera interview as a fact-finding
tool and then relying on their statements in its broader child custody determination.” But plaintiff,
quite simply, has established no such error on the part of the referee. As such, no appellate relief
is warranted.
Affirmed.
/s/ James Robert Redford
/s/ Randy J. Wallace
/s/ Andrew J. Lievense

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