How many family lawyers have thought that subsection (5) of MCL 722.31 gave parties the right to agree in their Judgment of Divorce that they could change a child’s residence at anytime in the future by “opting out” of Section 11 of the Child Custody Act?
On July 12, 2005, the Court of Appeals held that nothing in Section 11 permitted the parents to waive compliance with the statute.
In Delamiellureure v Belote, Docket No. 254593 (Decided July 12, 2005 For Publication) the parties, who were divorced in 2001, agreed in their stipulated judgment of divorce to the following provision:
The domicile of the child shall be the state of residence of the Defendant. The parties expressly waive the requirement that they each comply with Section 11 of the “Child Custody Act of 1970”, 1970 PA 91, as amended by Act No. 422 of the Public Acts of 2000, being Section 722.31 of the Michigan Compiled Laws.
When Defendant Mother told her ex-husband in 2003 that she and her new husband were moving to Arkansas, Plaintiff Father filed a motion in the trial court to correct the judgment and to enforce it. The trial court agreed, struck the provision from the judgment and inserted language from Section 11 prohibiting removal to a residence more than 100 miles away without consent of the other parent. Defendant Mother appealed.
The Court stated that parenting time is not merely a right of the parent, but also a right of a child and thus an obligation of the parent. Thus, even if the parties’ rights could be and were waived, the child’s rights—and the parents’ obligations—were not and could not be waived by the divorce settlement.
The Court rejected the argument that subsection (5) of the statute permitted the parents to address the issue of removal in their JOD. But the Court stated, without deciding the issue, that subsection (5) might reasonably be said to support the proposition that the judgment could authorize a future, specific change and contain the details of how such a change would be handled. The subsection cannot, the Court said, be used give authority for any move.
The Court refused to rule on two other issues that arose in the case – whether the trial court erred in concluding that the language of MCR 3.211(C) restricting removal of the child to a residence located more than 100 miles away should have been included in the divorce judgment and in ordering its insertion now and whether the court erred in applying MCR 3.212(C). The Court did state, however, that “we think it fair to say that insertion of language mandated by court rule constitutes a correction of an error arising from oversight which may be corrected at any time, including on the court’s own initiative under MCR 2.612(C)(1).
Read more: Can a Child Ever Choose Which Parent She Wants to Live With?
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