The Michigan Court of Appeals in a published opinion released on April 8, 2008 makes it clear that relocations that modify parenting time to such an extent that a change in the established custodial environment results, can be the basis for a change in custody.
In Powery v Wells, the mother [“Mom”] moved from Ludington to Traverse City, a distance of 91 miles. Dad filed a motion to change custody and Mom countered with a motion to modify parenting time. Mom claimed that since her move was less than 100 miles, it was insufficient to constitute a change in circumstances and that Dad wasn’t entitled to an evidentiary hearing.
The trial court disagreed. The court of appeals affirmed, citing Brown v Loveman, and holding that “if a requested modification of parenting time results in a change in the established custodial environment, it should not be granted unless the trial court is satisfied that the change would be in the best interests of the child.”
In the Powery case, both parents were actively involved in the child’s life. After the move, one of the parents would become a “weekend parent.” The trial court’s decision was that if Mom chose to remain in Traverse City, that Dad would be the weekday parent during the school year. It is unclear from the opinion what the trial court would recommend if Mom decided to return to Ludington.
An interesting procedural aspect of the case was a shift in the burden of proof. Typically, Dad—who had filed the motion for a change in custody—would have the burden of proof by clear and convincing evidence that changing custody to him would be in the child’s best interest. However, the trial court held and the COA affirmed that since it was Mom’s move that triggered the necessity of modifying the parenting time, she had the burden of proof that her proposed disruption of the established custodial environment was in the child’s best interests.
You can read Powery v Wells here.
You will find other Blog articles about relocations and their effect upon custody orders here.
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