Someone raised a question the other day about whether a court might consider having a child whose parents live in the Upper Peninsula about 60 miles apart, attend a school midway between the two homes so that the parents could continue their joint physical custody.
It seems to me that there is a factual issue here. Driving 30 miles to the school doesn't seem onerous to me since I've always lived about 25 miles or more from my work. My kids lived 45 miles portal to portal from their private school for 6 years. I admit that winter driving was awful in Northern Michigan. Not all people would think it reasonable for a child to travel that far. And yet, by car it would take less time than many school bus routes. [When my kids were in a public school, for example, we lived 7 miles from school; the bus took 45 minutes each way. I drove the kids to and from school.]
A decision issued yesterday by the Michigan Court of Appeals also sheds some light on the issues involved. In a case arising in Genesee County,
Defendant father appealed the trial court's ruling that no best interest hearing was required on his petition to modify parenting time so that the child could attend a private school in the vicinity of his home. Here, the parents shared joint legal and physical custody, with the minor child living with Plaintiff mother in Genesee County during the school year and with Defendant father in Ann Arbor during the summer months. The parties' parenting plan also provided for shared holidays, weekends, and school breaks.
Defendant father claimed that the trial court erred in treating his motion for modification of parenting time as a change of custody motion, in applying Vodvarka v Grasmeyer, 259 Mich App 499, 512 (2003) and in ruling that no hearing was required because of the defendant father's failure to allege change in circumstances or good cause sufficient to get past the hurdle imposed by the Vodvarka ruling.
The COA stated that the principles in Vodvarka apply equally well to motions for a change in parenting time, citing Terry v Affum, 237 Mich App 522, 534-535 (1999). The COA held that unless the parent requesting a modification of parenting time alleged and proved a change in circumstances or good cause arising since entry of the most recent custody order, the trial court cannot revisit that order.
The discussion regarding what the father alleged and how the COA found it deficient but instructive. You may read the case here: Download Schmanski_v_Skank
However, since the Schmanski case, the COA has decided Shade v Wright, which held that a parenting time motion will not be held to the Vodvarka standard unless the requested modification changes the established custodial environment. Shade v Wright is definitely worth reading. Download Shade_v_Wright See also the concurring opinion in Shade v Wright. Download Shade_v_Wright_concurring
Do you need help with a child custody modification case? Find a Michigan Family Lawyer near you.
Can a mother force a father to not associate with an unmarried "step-parent" when the children have a loving relationship with the father and his unmarried "spouse"? Can the mother force the father to keep the children away from a person based on an allegation the mother has no personal knowledge of? Do fathers ever have any rights of parenting besides paying support?
Posted by: Lee Strausberg | September 09, 2006 at 10:43 PM
I'd like to know what the law number is that states that the non-custodial parent cannot cohabitate with a girlfriend during parenting time? I'm just looking for some advice. My children visit their father and hear all sorts of negative comments from his live-in girlfriend. I do not wish to deny them visitation with their father but I do not want them around his girlfriend making negative remarks either. Would you have any suggestions on how to modify the parenting time.
Thanks,
Nancy
Posted by: Nancy | June 20, 2006 at 04:47 PM