I have been frustrated in the past when a trial court has refused to place any weight on the benefits of keeping step-siblings together. Granted, while courts normally put a lot of weight on keeping siblings together, I've sometimes seen families where that was not an appropriate thing to do. Today, divorcing families not uncommonly involve step-siblings.
The results in any family law case will depend upon the specific facts of the case. Thus, often counsel my clients to read some of the cases that are similar (or different) from theirs so that they can see how the trial court will likely decide their cases. I find that my clients are happier when they have realistic expectations so that they can make informed decisions that do not lead to disappointment. Knowledge is empowering to them. Thus, a recent case piqued my interest. It will likely be shared some clients to give them hope or to help them develop expectations that are reasonable.
In an unpublished case the Court of Appeals remanded a relocation case to the Ottawa County trial court in a custody dispute. The trial court found that an established custodial environment existed with both parties, and recited the applicable standard. Then, however, the T/C applied the wrong standard.
What was interesting about the case was this statement in the opinion that was provided as guidance for the trial court on remand:
In light of the need to remand for application of the correct standard, we do not address
plaintiff’s arguments addressed to the court’s findings, except to observe that we find no error in the court’s consideration of the children’s relationship with their half-brother, Kody, in deciding what custodial arrangement was in their best interests. Wiechmann v Wiechmann, 212 Mich App 436, 439-440; 538 NW2d 57 (1995). Further, the court should interview Royston and Olivia in camera on remand and consider their reasonable preference. MCL 722.23(i).
Certainly this statement was not part of the court's rationale supporting its ruling, but meant to show approval for that significant part of the lower court's decision, thus giving the trial court a guidance or support on remand. The statement it is obiter dictum and is not binding upon any court. For my lay readers, obiter dictum is Latin for a statement "said by the way" -- a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision. Obiter dictum is not binding precedent.
However, as I continue to remark in this Blog, there are few published cases emanating from the Michigan court of appeals and supreme court. Those courts have quoted unpublished cases and remarked that they "are instructive" because the facts are similar. I've used unpublished opinions to illustrate a point to a trial court, and I always support that use with citations to court of appeals cases that have approved and quoted unpublished opinions.
You can read Earl v Earl, Docket No. 276049 Decided November 15, 2007.
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