Another relocation case was recently decided by the court of appeals, Skeins v Mead (March 17, 2009) Docket No. 287426. In this case, the parents shared joint legal and physical custody of the child, alternating custody on a weekly basis. Both parents were, in fact, engaged in jointly raising the child in two home environments, although the father was periodically absent for military deployments. It was undisputed, other than the time of defendant-father's deployment to Kosovo and short training period on his return, he complied with the schedule. He is now employed by the National Guard as a trainer.
Relocation. The Plaintiff's motion was precipitated by economic hardship - lack of local employment which led her new husband to find a good-paying job in Texas and optimistic hopes by plaintiff to also land a job.
The record showed both parties have been devoted, caring, and responsible parents who love their child and have worked together for the child's best interests. There was no evidence indicating that plaintiff's motion was motivated by anything other than economic circumstances and distress.
First, as required, the trial court examined the five factors set out in MCL 722.31(4) (the so-called "100-mile rule"), which are examined on a preponderance of the evidence standard.
(4) Before permitting a legal residence change otherwise restricted by
subsection (1), the court shall consider each of the following factors, with the
child as the primary focus in the court's deliberations:
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent's plan to change the child's legal residence is inspired by that parent's
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child's schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
The COA found no fault with the trial court's analysis of the factors required under MCL 722.31(4) and its ruling that a change of domicile was warranted. However, the COA held that the trial court was in error when it ruled that the established custodial environment was with the mother and that, therefore, no best interests analysis was required when changing the existing custodial arrangement and allowing the mother to remove the child to Texas.
The COA said that it was clear that a joint established custodial environment existed with both parents and that the trial court's ruling that the established custodial environment was with the mother was against the great weight of the evidence. The trial court granted the plaintiff-mother's motion for change of domicile allowing her to move the child from Michigan to Texas.
The father argued that the trial court should not have found that factor (b), "[t]he degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule," did not favor either party's position. He argued that the court failed to properly credit him under factor (b) [in other words, he felt that the court had taken his deployments into consideration]. Thus, he argued that the court erred in determining that the factor supported a change of domicile. The COA said, however:
[T]he court did not find that factor (b) supported a change of domicile, and the court found that defendant, absent his deployments, had complied with the parenting time order and utilized his time under the order. The court further noted that the periods of deployments did not inure to defendant's detriment. Moreover, at the hearing, defendant's counsel indicated that factor (b) was essentially irrelevant and favored no one. The circuit court did not err with respect to factor (b).
The COA reversed the trial court's ruling allowing the relocation, however, based upon the fact that the parties shared a week-on week-off custodial schedule. As a result (again not holding defendant father's deployments against him), the COA said that it was "a close call" as to whether the mother, in fact, held the established custodial environment. Deciding that the parents shared a joint custodial environment, the COA remanded the case to the trial court for a best interests hearing and directed the trial court to use a clear and convincing evidence standard.
This is a good case to review to see the kind of evidence the COA found persuasive for the non-relocating parent. You can read Skeins v Mead here.
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