UPDATES IN MICHIGAN FAMILY LAW

Change of Schools | Cases are Fact-Specific

In Weiss v Gross, Docket No. 308804, Decided July 17, 2012 [Unpublished], the court of  appeals affirmed the trial court's denial of the mother's request to change the child's school district. The mother attempted to present the case as quite similar to the Pierron v Pierron factual situation. She claimed that the 25 mile move would not have any impact on the established custodial environment ("ECE"). [In Pierron, the change in school resulted in a 60 mile distance between the mother's house and the father's house, yet did not result in a change in the ECE.]

The COA, however, noted that the trial judge's decision (Judge David Hoort in the Ionia Family Court) recognized some disparities between this case and Pierron. The COA also examined this case in light of the published decision in Gagnon v Glowacki, 295 Mich App 557, __ NW2d __ (2012) and upheld the trial court's denial of the mother's motion to change schools.

Relocation Decision

The Michigan Supreme Court, on June 20, 2012, in lieu of granting leave to appeal, reversed a March 2012 decision by the Court of Appeals in a case involving a mother's motion to relocate with the parties' minor child from Northern Michigan to Fayetteville, Arkansas, and reinstated the trial court's decision denying Mother's motion. What happened in this case illustrates the danger of committing to a move without having the agreement of the other parent.

Unfortunately, Mother committed to the move prior to obtaining a decision from the trial court and Father opposed the move. Mother's move was related to a lateral transfer with the company she worked for with a slight raise in salary, a signing bonus, and her claim of future possible advancement.

Relocations | Comparing Schools is Part of the Task

Family courts are inundated with requests for relocations just before the beginning of the school year. According to the Detroit Free Press, Michigan's Department of Education just released its mandated report "2011 Public School Ranking Top to Bottom" for Michigan schools. These rankings may be useful for parents and family lawyers dealing with relocation motions.

The state released the latest round of top-to-bottom school rankings     today for Michigan schools. This is the second year the state has created statewide rankings and the methodology has changed; therefore, a school's rank in 2010 is not directly comparable to its rank in 2011. These rankings of student achievement and on growth of student bodies are based on student achievement as shown by test results on the Michigan Educational Assessment Program (MEAP) for elementary/middle school students and the Michigan Merit Examination (MME) for high school students. Something new this year--the top to bottom rankings also include achievement gap data for all schools and graduation rates for high schoools.

Unemployment | Relocation tools

You'll find a wealth of information on the US Department of Labor Bureau of Labor Statistics website to help you show the dismal state of the economy in Michigan (or other states) as opposed to the state of economy in the prospective relocation state. The unemployment rates by county are projected on a map and much detailed information is available. Various reports are also available. Here is a good place to start. Note the Michigan state and county map showing loss of employment by county, and access to detailed information. This is a huge website with an incredible amount of information available.

Also check out the Quick Links and Help menus at the bottom of the page.

 

Need help with a post-judgment relocation motion?

Derry | The rest of the story

Some of you will remember Paul Harvey, a radio commentator. in June 1944, Harvey began broadcasting from the ABC affiliate WENR in Chicago. He quickly became the most popular newscaster in Chicago. In 1945, he began hosting the postwar employment program Jobs for G.I. Joe on WENR. Harvey added The Rest of the Story as a tagline to in-depth feature stories in 1946. Harvey was also known for catch phrases he used at the beginning of his programs, such as "Hello Americans, I'm Paul Harvey. You know what the news is, in a minute, you're going to hear ... the rest of the story."

In two earlier posts, Scott Bassett and Kathleen Goetsch offered their differing views on the recent relocation case, Derry v Derry, decided by the Michigan Court of Appeals this week. Both Scott and Kathleen offered to let me post "the rest of the story," which is their continued private discussion of the impact of relocations on families and children.

Relocations | Another view of the Derry decision

One of the distinct pleasures of being part of the State Bar of Michigan Family Law Section's Listserv is the ability to participate in the exchange of ideas about evolving Michigan law and policy in the area of Family Law. As you might expect, the members of the Listserv--at least 750 lawyers, judges and Friend of the Court employees--express differences of opinion from time to time. Usually these exchanges are diplomatic.

The other day, Scott Bassett posted an insightful analysis of the Derry case involving relocations. [You may read that here since Scott was a guest blogger on Updates in Michigan Family Law.] I've known Scott for about twenty years and know that he has structured his specialty practice in appellate family law around his family commitments, that he has an established successful career in the difficult and unique area of third-party custody and parenting time concerns.

In response to Scott's analysis, Kathleen Goetsch offered her view. While one would never say that either's opinion is right or wrong, it is true that some of these fact-specific cases do find people on one side of the fence or the other. One of the first things I tell a new client (right after I say: "Tell me everything. I can only help you if I know the whole story, the things that favor you and what the other side will use against you.") is this: Every family law case is unique. It is the specific facts of your case that will determine how the judge is going to decide your case within the framework that the law has provided.

Court of Appeals remands relocation case to trial court

Scott Bassett of Bradenton, Florida--a successful Michigan family law appellate lawyer--is today's guest blogger. He writes about the remand from the Court of Appeals of a case involving a Wayne County trial court's denial of a relocation motion.

In an interesting unpublished decision, the Court of Appeals, in a 2 to 1 decision, vacated Judge Halloran's (Wayne Co.) denial of a change of domicile request and remanded for a new hearing before a different judge.  (Congrats to Anne Argiroff for her success in this appeal). 

Relocation motions where parents share custody

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.

Mom's relocation of 91 miles causes change in custody

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.

Unaccompanied minor rules: Children traveling alone

Elizabeth Sadowski posted the following helpful information on the State Bar's listserv on Friday. Summer is coming and many children will be traveling from the home of the custodial parent to the non-custodial parent's home for parenting time.

Liz says that "Policies for unaccompanied children differ among airlines, so you need to check the website for that particular carrier. " She did, however, post the rules for US Air and for Northwest Airlines.

Relocation | Parent remarries & moves out-of-state

Today's society is extremely mobile. The economy in Michigan, for example, is forcing some parents to relocate to states where suitable employment is available. In addition, divorced parents are increasingly likely to look at an online dating services for introductions to suitable new mates. Very often, a marriage to someone met on line results in relocation of a parent. What happens if the remarried parent wants to move with the children? Does it matter if that parent has sole legal custody? How about cases where the parents share joint legal and joint physical  custody? What if they share joint legal custody, but the parent wanting to relocate has primary physical custody?    

The 100-mile rule | Effect of sole legal custody

I thought I would check on the status of Spires v Bergman, Court of Appeals Docket No. 276722. In this paternity case, the mother had sole legal and sole physical custody and was granted permission by the trial court to relocate to another State.

In Michigan, a court rule MCR 3.211(C)(1) requires that all custody and parenting time orders contain a provision preventing a change a child's residence from Michigan unless the parents agree or the Court approves the move.

The father claimed on appeal, among other things, that the trial court was obliged to apply the 100-mile rule and to deny the relocation motion. He also claimed that the trial court should have considered the D'onofrio factors before granting the order.

The trial court affirmed the trial court's decision that the 100-mile rule did not apply because the mother had sole legal custody. This is in accord with the statute, MCL 722.31.

An application for leave to appeal was filed on October 2, 2007. The Michigan Supreme Court denied leave on November 27, 2007. Docket No. 134977. 

You may read an earlier discussion of the Spires case here.

Do you need help with a relocation issue? Find a family lawyer near you.

 

 

Relocation: Parent with sole legal custody can move without D'Onofrio hearing

On August 21, 2007, in Spires v Bergman, the Michigan Court of Appeals decided in an opinion for publication that where a parent has sole legal custody of the child at the time of the proceedings, the so-called “100-Mile Rule” does not govern that parent’s request to change the child’s domicile. As a result, the trial court properly declined to consider the factors of MCL 722.31(4).

In deciding this case and in interpreting the statute, the COA said that when the Legislature codified Michigan’s usage of the D’Onofrio factors,  it concurrently chose to expressly exempt custody cases in which the relocating parent has sole legal custody.

The father in Spires argued that even if the statute did not apply, the trial court was required by common law to consider the D’Onofrio factors [1] in all change-of-domicile matters, even those where one parent had sole legal custody. The COA rejected this argument, holding that the plain language of MCL 722.31(2) has altered this practice. Thus, the statute exclusively controls when and whether a court is required to use of the D’Onofrio factors in change-of-domicile cases. Since the statute expressly exempts cases where one parent has sole legal custody from the D’Onofrio factor consideration.
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[1]    The so-called D’Onofrio factors or test were adopted in Michigan case law in 1984 from the D’onofrio v D’Onofrio case that had earlier been decided in New Jersey. Under the D'Onofrio test, the trial court must consider: (1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the non-custodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the non-custodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the non-custodial parent if removal is allowed. Subsequently, the Michigan Legislature codified this test (made it law) and added one more factor: “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”

When can a parent transfer jurisdiction?

Today's families are mobile. Relocations for work or because of remarriage are common. Thus, the question about when and under what circumstances a custodial parent may remove children from the State of Michigan to relocate is frequently asked of Michigan family lawyers.

In Michigan, as elsewhere, state laws mandate that judgments of divorce retain jurisdiction over the children's custodial and parenting time issues. 44 states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. This Act eliminates some of the problems that were experienced as a result of conflict between the Uniform Parental Kidnapping Act and the Uniform Child Custody Jurisdiction Act.The whole concept of the UCCJEA is to avoid concurrent jurisdiction.

This Act defines the term "the child's 'Home State' " and controls the issue of which state, of two competing states, has the authority to make "an initial custody determination" with regard to any child involved in a proceeding -- whether it's a divorce action, a paternity action, a child custody action. During the course of post-judgment proceedings, once again, the issue of which state is the child's "Home State" again controls where the contested issues will be heard and decided and court orders will be enforced or modified.