The Michigan Court of Appeals issued an unpublished decision on July 18, 2006 remanding to the trial court and directing that court to comply with a Michigan statute that requires the court to return a child to a parent who has returned from active military duty. In addition, the COA reversed two prior court orders that changed custody from the custodial parent after she attempted to vest the maternal grandparent with guardianship upon her deployment rather than to allow the non-custodial father to care for the child in her absence.
In Michigan, a trial court is limited by the recent amendment to MCL 722.27 in its authority to modify custody orders of deployed parents. If a custodial parent is deployed, and a motion for change of custody is filed during the time a parent is in active military duty, the court may not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty. However, the court is authorized to enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.
According to the statute, when the custodial parent returns from active military duty, the court must reinstate the custody order in effect immediately preceding that period of active military duty. Moreover, the Court may not hold the parent’s absence on account of active military duty against the parent in a best interest of the child determination in deciding a motion for change of custody filed by the other parent after the custodial parent returns from active military duty.
References: MCL 722.27 Holmes v Coleman, Docket No. 268303 (Michigan Court of Appeals, decided July 18, 2006) See also: Johnson v Johnson, Docket No. 258062 (Michigan Court of Appeals, decided March 1, 2005)
Earlier Post on Updates in Michigan Law: Military Deployments: How to Avoid the Danger that Deployment, as an Unmarried Custodial Parent, Could Trigger a Change in Circumstances Permitting the Trial Court to Re-visit and Modify an Existing Custody and Parenting Time Order
Servicemember's Civil Relief Act: An online judge's guide to the Act by Mark E. Sullivan. Found on the American Bar Association's Family Law Section website. This is a good resource for anyone involved in a military divorce.
For information about divorce, child custody, and military families, see Jeanne Hannah's website.
Need help with a child custody issue? Find a family lawyer near you.