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.”

The Spires case has generated some good commentary on the State Bar of Michigan Family Law Listserv, including the following:

From Scott Bassett, one of Michigan’s stellar appellate lawyers:

I recall well the debate surrounding enactment of the so-called "100-mile rule" in MCL 722.31.  Proponents (of which I was one) felt that the legislation was needed because the court rule, MCR 3.211(C)(1), applied only to interstate relocations.  Relocations over great distances within Michigan could also have a significant impact on the relationship between the child and the noncustodial parent.  We felt such relocations should require court review similar to the D'Onofrio test applied to out-of-state moves. 

One thing I am certain was not intended by the legislation's sponsors or proponents was the ruling by the Court of Appeals in Spires v Bergman.  That ruling essentially repeals the D'Onofrio-based test for interstate moves where the left-behind parent does not have joint legal custody.  The panel "reasoned" that if the Legislature had intended to continue the practice of applying a D'Onofrio-based test to interstate relocations, it would not have limited the new statute to cases of joint legal custody.  From what I recall of the debate, everyone assumed (and desired) that the D'Onofrio-based test under the court rule remain in place for interstate moves irrespective of the legal custody arrangement.  We were trying to solve an intrastate problem, not reduce (to zero) the standard for interstate moves.   

The result is that one may take children from Michigan to Texas (as was the case in Spires) without an evidentiary hearing or any analysis of the D'Onofrio or MCL 722.31(4) factors if the non-custodial parent does not have joint legal custody - no matter how extensive his/her parenting time may have been. 

Yet, a parent could not move children from Mt. Clemens to Jackson (which I assume is more than 100 miles, but I did not measure) without a full evidentiary hearing if there is joint legal custody - even where the non-custodial parent has not exercised substantial parenting time. 

This seems wrong.    Scott Bassett

From James Ryan, a frequent and erudite commentator:

Scott:

The court alleges that it is interpreting the plain language of the statute. Hogwash.  But this isn’t the only decision that has – in my mind – gotten all this wrong.
It is quite possible – and appropriate, I think – to recognize different concepts at play here.  For instance:

legal residence, with restrictions on intrastate moves more than 100 miles, for which see MCL 722.31, with its list of factors (different from, but similar to, D’Onofrio factors);

domicile, which gives Michigan its authority under the UCCJEA to decide custody issues, and which is preserved until lost for various reasons, one of which can be granting permission to leave the state; the parties get notice of this with a Judgment provision per MCR 3.211(C)(1).

How the court goes from a statute concerned only with a child’s “legal residence” to saying that it overrides the court rule and all domicile decisions is beyond my power to explain.

/s/ Jim Ryan, Plymouth

From Jonathan Warshay, a former Friend of the Court staff attorney:

My sisters and brothers:

The opinion cites three things in the court rule:

1) domicile cannot be changed out of state without court's permission
2) CP must notify FOC of address change, AND (caps for emphasis)
3) compliance with MCL 722.31

Those are three separate requirements.  Nowhere did anyone ever say that the 100 mile superseded the Michigan domicile requirement.  As Scott pointed out, they have different effects.  They also have different rationales.  The Michigan domicile requirement is to allow the court to consider a move of a child outside its jurisdiction.  The 100 mile rule considers the effect of a move away from the other parent.  Scott's comments are right on point.  (Jim's, too.)

I am curious what was argued in the briefs.  Did the defendant's attorney fail to make these points prominent and clear to the COA, or did the COA decide that these points were not relevant?

As for the plain meaning of the rule, the Michigan domicile provision does not consider whether a party has sole custody.  It says that the residence or domicile cannot be changed without permission of the court.  That seems plain enough.  Furthermore, the Supreme Court revised the rule to consider the new statute, MCL 722.31.  Had the Supreme Court wanted to change the the Michigan domicile requirement, it certainly could have revised the rule to make it clear.  Because the Supreme Court did not, there is no evidence that the result in this case is what was intended.  While the staff comment to court rule changes is not authoritative, it did not even discuss the addition of the section dealing with MCL 722.31.

The FOC Bureau of SCAO (a division of the SCAO) also considered that the two parts of this rule apply differently, as is set forth in the FOC Manual:

Was the Family Law Section asked to file a brief in this situation?

I think the COA needs attorneys with specialization in family law in its pre-hearing division to brief the cases.  Family law is different from contracts and the analogies do not always work.  Family law came from equity.  Equity is required because of the children and family relationships.  Equity can be obscure.  (It was one of my favorite classes in law school, thanks to Clark Johnson.)

Jonathan Warshay
Ferndale, MI
http://www.warshaylawfirm.com/
[email protected]

Technorati tags: Child custody relocation, child custody removal from state, child custody, sole legal custody, joint custody

Comments

[James Gleason]

I am interested in opinions on a child custody case in Newaygo County, MI.

This case involves my wife and step daughter. My wife left her significant other in February of 03. At the time she and her daughter were living with the childs biological father in Newaygo County. They were not married and there was no custody arrangement or child support arrangement at that time. My wife left because of abusive behavior and alcohol abuse displayed by her ex on a regular basis. Both in the presence of the child.

After leaving Michigan and returning to her home state of Wisconsin My wife then received a summons to appear in court in Michigan for a custody hearing which was initiated by her ex. The court awarded my wife primary physical placement and Joint legal custody. The biological father was then ordered to pay child support and 50% of all medical bills incurred that are not covered by medical insurance.

After being ordered to pay child support the biological father then decided to deny being the father of the child. In fact his name is not on the birth certificate. The court ordered a paternity test to take place and issued a stay on child support until the determination of the paternity test was received.

The test proved the ex was the biological father and child support was ordered to resume.

In 2005 the biological father then petitioned the court to suspend child support on the grounds that his family farm had been sold and he no longer had employment.

The court ordered child support to continue.

The biological father then petitioned the court to stay child support on the grounds that he is disabled and offered no evidence to the court to support his claims of disability.

The court granted his motion and suspended his child support pending his supposed social security disability claim.

In 2005 his Social security Claim was denied.

A motion was filed to continue child support at which time the biological father argued that he had filed an appeal on his social security claim. Even though he again offered no proof of disability to the court.

The biological fathers motion was granted. This is an erroneous decision by the court in that the decision does not comply with MCL 400.233b(2) Child support arrearage amnesty period; designation; terms and conditions; administration; notification. Which states the payer cannot receive amnesty unless he pays at least 50% of the arrearages with the written request for amnesty. 400.233b(1) states that amnesty cannot last longer than 7 months. In this case it has been nearly 5 years.

The biological fathers medical records were subpoenaed and prove he is NOT disabled. The court disregards this evidence and continues to not enforce the child support order. At this point the biological father has not paid anything toward incurred medical expenses.

During this entire time the biological father has made numerous threats to take the child and move to Florida where the mother will not be able to find her.The father states that the judge comes to his families restaurant and eats all the time and he has conversations with the judge all the time. He tells my wife there is no way she will win.

The court is notified of these threats and orders the biological father can have supervised visitations of which the first 5 are to take place in Wisconsin. These visitations are to be supervised by his parents.

The parents fail to meet their obligation to supervise the visitations and openly admit this in court.
The court does nothing to enforce the order for supervised visitations.

During the next visitation the biological father and the grandfather become violent and attack my wife in front of the child. Restraining orders are filed and denied on the basis that my wife only had an audio tape of the entire incident and not a video tape.
The audio tape clearly depicts my wife being shoved into the side of her car and threatened by the biological father and his father. Both making statements that the Michigan judge has made promises to them exparte to have her "locked up."

This tape is offered to the Michigan Judge as evidence and the judge refuses to hear the tape.

In April 2007 My wife files for a transfer of jurisdiction in the Michigan Court. The same judge agrees that Wisconsin is the clearly the childs "home state." However, the judge state he cannot transfer jurisdiction at that time because he has no case in Wisconsin to transfer the case to. The judge grants my wife 60 days in which she is to open a custody case in Wisconsin, re-notice the court, and set up a phone conference between the Michigan Judge and the Wisconsin Judge for the same time. Upon meeting these requirements the judge states he will transfer jurisdiction.

In May of 2007 the biological father files a motion to request additional parenting time. During the hearing the biological fathers attorney dismisses his motion for additional parenting time and instead requests the court to grant my wife Primary legal custody of the child. My wife accepts the Primary legal custody and the court so orders the change in custody.

In June of 2007, within the 60 days granted by the court , my wife has filed a custody case in Wisconsin, re-noticed the Michigan Court and set up a telephone conference between the Wisconsin Judge and the Michigan Judge, essentially fulfilling all requirements of the court hearing in April of 2007.

The Michigan Judge then states to my wife, "you have Primary Physical custody and Primary legal custody, what more do you want? I have no reason to transfer jurisdiction to Wisconsin. The judge then orders that my wife must pay the biological father $500.00 towards his attorney fees. Even though he owes my wife over $12000.00 in child support arrearages. The court also orders that parenting time will continue as ordered in the 2003 court order. The judge also belittles my wife because she is not represented by an attorney. ( we had an attorney but he was doing nothing but filing motions that were not heard by the court in an effort to charge us a ridiculous amount in fees so we fired the attorney. We no longer have the finances available for an attorney.)

The 2003 court order states the biological father can have visitation on the first Thursday of the month at 5 pm continuing until the following Monday at 5 pm.

This visitation was fine when the child was 2 years old. The child is now 6 years old and in school. This visitation schedule would mean she would miss two days of school per month for visitations, not including any days she may be ill and need to miss school. In accordance with her teachers this is not in the child's best interest.

In August 2007, the biological father then agrees in a verbal agreement of which we have an audio tape that he will not do anything to make the child miss school. In turn we agree that he can have visitation on any weekend he wants as long as it is here in Wisconsin. During the summer he will be allowed extended visitation. The biological father agrees.

In September 2007, the biological father comes to Wisconsin demanding he be allowed to take the child to Michigan from Thursday to Monday as stated in the 2003 court order. My wife denied the visitation in the best interest of the child. She would have to miss school. The biological father then threatens her with further court proceedings and leaves.

I am interested in opinions in this case. I have been present for the court hearings and witnessed the inappropriate behavior of the court. I believe there has been exparte communications between the biological father and the judge. It is obvious since the judge has not made the father pay child support for almost 5 years now.

We have evidence that the father is not disabled, he is the CEO of a for profit company with 3 employees, he makes $50.00 per hour and we also have recent pictures of him operating farm equipment. He has also admitted that he still operates the family farm.

The judge refuses to hear any of this evidence.We do have transcripts of all of the court hearings and in fact the transcript from the last hearing was missing almost an entire page. We had to notify the court clerk that we were going to pursue legal action before we were actually given the complete transcript.

Whats wrong here?

Feel free to email me at [email protected]

[Jeanne M Hannah]

Why can't you subpoena the father's federal tax returns to see what his income is? Subpoena them going back 5 years. Given the description above, it's hard to believe that he would not be filing IRS returns.

As for the parenting time issue, I agree that having the child miss two days of school per month is less than ideal. However, consider the alternative. If parenting time were modified to occur in Wisconsin, then he might get alternate weekends, causing more disruption. I gather from your recital of facts that he doesn't have extended summer parenting time. Until he's willing to trade reasonable school year parenting time for it -- by that, I mean time that doesn't cause the child to miss school -- I recommend not giving him anything other than what is court-ordered. Perhaps that will cause him to change his mind.

[Nicole Spence]

I have joint custody of my kids and have already moved to the UK. I didn't know that I had to get permission to move if I was not moving my children.

I married someone from the UK and am seeking citizenship here. Now I would like to see my kids for a few weeks in the summer. My ex husband is not allowing this.

I am really to the point where I just want to give up.
What should I do?

[Jeanne M Hannah]

Nicole,

It is a violation of the court's order for your husband to refuse to allow you court-ordered summer parenting time. Perhaps your current order doesn't have a specific summer parenting time provision. You need to file a motion to obtain one. Of course, the summer is nearly over, but you might be able to file a "show cause" motion for contempt and get a hearing before the court for some parenting time.

Your husband may fear that you will refuse to return the children. There are ways to assure him that you are NOT planning a parental abduction (by refusing to return the children).

Click on the "Parental Kidnapping" link on the right-hand side of this Blog. Read the two articles that deal with prevention of parental kidnapping. There are important resources there to help you and your ex-husband devise a plan that will help him feel safe about letting the children visit with you.

Best of luck. Jeanne

[Star K.]

I am trying to get information on Change of Domicile. I am moving from MI to FL with my daughter who I have sole custody of. Do I need to go before the court? Do I have to tell the father? Can he stop me? Can the court stop me? My Child support agreement says that I can not change domicile out of state without court approval. The parenting time is "reasonable." Thanks

[Jeanne M Hannah]

Star,

There is a newer case that talks specifically about this. The short answer is yes you can move beyond the 100 miles because you have sole legal custody, but you do need approval from the court to move out of Michigan (and that should not be difficult to get.). See this recent post and read the case dealing specifically with this topic. http://tinyurl.com/myfmtq

Jeanne