Child's entry into school held "proper cause" to revisit custody issue

In Hoeve v Hoeve, an unpublished opinion issued by the Court of Appeals on 
October 15th, a panel of Michigan's Court of Appeals ruled that a child's impending enrollment in school constituted proper cause to revisit the trial court's earlier custody order because the child needs to be enrolled in one school district, the parents live 45 minutes apart, and the child's beginning school attendance is an event that “could have a significant effect on the child’s life.”

In this case, the parents shared joint legal and joint physical custody. The parenting schedule provided that the child alternate weeks with his parents. Each parent resided in a different school district and had enrolled the child in different preschool programs. About nine months prior to the time the child would begin kindergarten, his father filed a motion for modification to provide the father with sole physical custody alleging that the mother provided inadequate care. He also raised the issue that the child the parents resided 45 minutes apart and in different school districts.

The mother responded, denying the father's allegations of substandard care, but acknowledging that the child would need to be enrolled in one school system. She asked for primary physical custody. After a hearing, the trial court granted the father's motion and awarded him primary physical custody.

The COA has previously decided that when parents are unable to agree upon which school a child should attend, the trial court must hold a best interests hearing and make a decision on that issue. Lombardo v Lombardo, 202 Mich App 151 (1993). On appeal in Hoeve v Hoeve, defendant mother challenged the trial court's jurisdiction, stating that there was no proper cause or change in circumstances that had arisen since the entry of the most recent custody order that would grant the trial court jurisdiction to revisit its previous order, citing Vodvarka v Grasmeyer, 259 Mich App 499 (2003).

The Hoeve panel disagreed, and the COA ruled that the child's impending enrollment in school constituted an event that “could have a significant effect on the child’s life.” Vodvarka, 259 Mich App 511.

You may read the Hoeve decision here.

Need help with a child custody issue?

Comments

[Jeanne M. Hannah]

I highly recommend being proactive and letting schools know that the non-custodial parent should be listed on the school's emergency contact list. In fact, you might need this down the road--get a copy of the contact list and registration. Perhaps custodial parent never mentioned the NCP.

Many schools have online calendars now and are very user-friendly about letting NCPs know about events. But NCPs can ask for duplicate report cards, notices, calendars, etc.

Don't depend upon the custodial parent to take care of this very important task. Demonstrate that you, the NCP, care enough about your child(ren)'s school experience to want to be actively involved.

[J.M]

Hi-
I have a similar situation as Jennifer Tavana. My husband and I were not notified when my stepson was enrolled in school, when school activities are, school open houses or parent teacher meetings. So far the school has been understanding with us. We get copies of his medical records yearly, but it is a lot of proactive parenting on our part and lack of complying with the court order from my stepson's mother. We debate about going back to court & if anyone has any advise, I would appreciate it.

[Jeanne M Hannah]

Certainly since the agreement was not incorporated into a court order, you might try changing it. However, anticipate that your son's father will go to court to establish custody and parenting time if you rock the boat. The agreement and proof of what kind of parenting time he has may convince the court that the established custodial environment is with him, not you. Any custody/parenting time order the court decides to enter may be no better or worse than what you are now doing.

[Kelli Johnson]

My son's father and I were never married and I have sole physical custody. We made a written agreement outside of court, there is no court order regarding this agreement. My son has had behavior changes and the plan was written wrong and my son is not at my home enough. I would like to change the plan and my attorney says I can change the agreement outside of court because it was done outside of court. Is this true?

[Jeanne M Hannah]

Jennifer, you probably know that you cannot petition the court to modify the parenting time unless there is good cause or a sufficient change in circumstances to warrant reexamination of the previous custody/parenting time order. That's what is so significant about this case. Your fact pattern sounds very similar. You could show this article to the child's mother and suggest that it would be more expensive to do this in court, but that unless she agrees to change the parenting schedule to week on / week off, that's the only avenue that she would leave open to you.

Good luck. Jeanne M Hannah

[Jennifer Tavana]

My husband and I have been trying to cope with my stepson's mother's unwillingness to co-parent at any level. She has not been willing to discuss changing the 5 year old's schedule now that he is in school from switching every couple days to alternating weeks, will not discuss doctor visits or inform dad that she is taking him to the doctor, etc. They have joint legal/physical custody but she has more time with the child. They went through mediation last year and it was horrible. We are very hesitant to go to court because of our previous experiences in the 'system'. I have been looking for resources to help us deal with this situation so I am glad that this site is here. We've been very frustrated and feeling defeated, so it is refreshing to find a place where we might find some help. Thanks.