In Brausch v Brausch, 283 Mich App 339; ___ NW2d ___ (2009), decided by the Michigan court of appeals on April 14, 2009, the Court of Appeals reaffirmed that child custody provisions in a judgment of divorce cannot be and will not be governed by contract privileges.
In this case, the parties entered into a judgment of divorce that (1) granted Plaintiff Mother sole legal and sole physical custody, (2) granted the father “reasonable parenting time as agreed to by the parties,” (3) did not restrict Plaintiff Mother from moving more than 100 miles from Defendant Father, and (4) allowed interstates moves without permission from the trial court. Now there’s a recipe for disaster!
Here is the specific wording from the Brausch judgment of divorce. Following that are some specific guidelines for parents who should try to avoid the problems caused by the wording.
"It is further ordered that, pursuant to MCL 722.31, the prohibition against moving the minor child does not apply to this case, as the plaintiff has sole legal custody of the child."
Here are some good “take-aways” from the Brausch case for divorcing parents who intend by a judgment to resolve custody and parenting time issues:
(1) The language in the judgment avoided a flaw found in a earlier case. The COA held: “[T]he wording of this provision, unlike that in Delamielleure v Belote, 267 Mich App 337, 338 (2005), does not constitute an express waiver of MCL 722.31; consequently, the provision has no legal effect in this case."
(2) Do not agree to a judgment that gives sole legal custody to the primary custodial parent. If you do that, then the 100-mile-rule won’t apply and the parent may move anywhere within the state of Michigan without first seeking approval of the court.
(3) Do not agree to a judgment that doesn’t guarantee you specific parenting time. If the parenting time isn’t specific, you have nothing to enforce. That is particularly problematic if one of the parties makes an interstate move. How are you going to get enforcement in Georgia (for example) of a Michigan judgment that says you may have parenting time “as the parties mutually arrange and agree?” It’s nice to think that you can trust your spouse enough to enter into such an agreement. But too often that trust is later betrayed.
(4) The higher the degree of conflict between the parents, the greater the detail about exercise of parenting time should be. Conditions such as transportation (Who is responsible for the cost? When and where is the exchange to take place? What kind of notice might be required? If there is a substance abuse problem, what kind of conditions should be imposed upon parenting time?) Often my custody and parenting time provisions consume several pages of the judgment. I’d rather opt for prudent protection of my client’s rights (or protections if they are required) than to risk having to come back later for clarification.
(5) Because of the hurdles imposed by Michigan law upon changes in custody and/or parenting time to avoid disruption of childrens' lives, it is absolutely essential that the parent who will be the noncustodial parent try to resolve the custody and parenting time with as much parenting time as is reasonably possible—even if there is a possibility that he/she might not be able to exercise all of it.
(6) When a Michigan judgment of divorce grants sole legal and sole physical custody to one parent, the non-custodial parent will not be able to enforce the so-called “100-mile-rule.” This puts the parent-child relationship into serious jeopardy because it poses a risk that the parent may move very far away. In a state as large as Michigan, a parent can put 4 or 5 hours between the residences of the parents, and this will make exercise of parenting time much more difficult and expensive.
(7) Don’t think that you’re going to necessarily get a hearing on your post-judgment motion to modify custody and/or parenting time. The following is the “guts” of the Brausch decision, which again states clearly that the trial court is not required to give you a hearing on your motion before denying it unless you can make it over the significant hurdles the law puts in your way.
In Brausch, the court of appeals addressed the requirements that must be met before a court may hear a request to change custody, holding as following:
"The goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. [Citation omitted] A trial court may modify a custody award only if the moving party first establishes proper cause or a change in circumstances. [Citing MCL 722.27(1)(c) and Vodvarka v Grasmeyer, 259 Mich App 499, 508-509 (2003)]. Accordingly, a party seeking a change in the custody of a child is required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change in circumstances. [Citation omitted] If a party fails to do
so, the trial court may not hold a child custody hearing. [My emphasis]
"Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive and while the court need not conduct an evidentiary hearing on the topic, [Vodvarka at 512], it must first address this threshold question. Again, in making this determination, a trial court must determine if the moving party has shown “that, since the entry of the last custody order, the conditions surrounding custody of the child, . . . [has] or could have a significant effect on the child’s well-being, have materially changed.” Id. at 513.
"We disagree with plaintiff that the trial court was required to conduct an evidentiary hearing to determine whether the threshold showing of a change of circumstances existed. As explained in Vodvarka, supra at 512, a court is not obligated to conduct an evidentiary hearing when considering the threshold question of whether there is proper cause or a change of circumstances to support a change of custody request. The court can decide if the allegations are sufficient by accepting the facts as alleged as true, and a hearing also is not required if the facts alleged are undisputed. Id."
Consequently, there was a sufficient showing of a change of circumstances to permit the trial court to revisit the issue of custody.
An unusual (at least unusual in the courts where I practice) procedure was used to eliminate an initial hearing on whether the moving party met the threshold requirement and was entitled to a hearing on the motion. The Brausch panel noted:
MCR 3.210(C)(8) provides: “In deciding whether an evidentiary hearing is necessary with regard to a post-judgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.”
In Brausch, before deciding whether to conduct a new custody hearing, the trial court ordered the Friend of the Court to interview the parties to determine if there was merit to defendant’s allegations. The referee submitted his report, which was the equivalent of an offer of proof regarding the allegations in defendant’s motion. Because the trial court was equipped with a referee’s report which showed that there was facial merit to defendant’s allegations, it did not abuse its discretion by failing to conduct an independent evidentiary hearing on the threshold question of change of circumstances.
One last take-away: In Brausch, the COA held that parties may not stipulate in a judgment of divorce that the children may be moved from Michigan to another state without permission from the trial court. MCR 3.211(C) requires every judgment of divorce to contain a provision that a child may not be removed from the State without prior approval of the trial Specifically, this court rule provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor,
(2) the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address, and
(3) a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
The Brausch panel held that even though the plaintiff mother wasn’t required to get permission to move more than 100 miles because she had sole legal custody, she was required to obtain court approval of her potential move with the parties’ child to Canada. The mother claimed that contract law governed the interpretation of the judgment. The COA disagreed with her, stating that contract law does not govern child custody matters. Additionally, the COA held that the attempt to contract away the court’s responsibility (for considering a request for an out-of-state move) violated a controlling court rule; consequently, it cannot be enforced and must be stricken.
Need help with a custody or parenting time modification motion?