100 Mile rule! Thoughts from a Flint Divorce Lawyer.
Issues Discussed here by Terry Bankert a Flint Divorce Attorney:
Child custody;
Motion for a change of domicile; Brown v. Loveman; Mogle v. Scriver; Shulick v. Richards; MCL 722.31; Factors a, b, and c; Spires v. Bergman
From Court: Michigan Court of Appeals (Unpublished)
The Case Name: Woodward v. Woodward
Reviewed first at e-Journal Number: 45255
Michigan Court of Appeals Judge(s): Per Curiam - Servitto, Bandstra, and Fort Hood
When did the lower court release this? March 4, 2010, No. 294441,
Where did this case begin? Lapeer Circuit Court,LC No. 08-040752-DM
DID YOU KNOW
In My Flint Divorce and Statewide mediation practice often one parent wants to move. Did you know that when parents share joint legal custody of their children and one parent proposes to
relocate more than 100 miles away, a motion for change of domicile is governed by MCL
722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus v
Rittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007). That statute provides, in pertinent
part: Before permitting a legal residence change. . . , the court shall consider
each of the following factors, with the child as the primary focus in the court’s
deliberations:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child. [MCL 722.31(4).]
IN THIS CASE
The Lapeer County Family court decision to grant the plaintiff-mother's motion for change of domicile was not an abuse of discretion. dad thought it was a bad decision. He was wrong.
IMPROVING THE CHILDS LIFE
These parents shared joint custody of their minor children. Father claimed the trial court erred by finding factor (a) favored permitting the relocation because mother failed to establish a move to Massachusetts would improve the quality of the children's lives.
MABEY COUNTS IN FAMILY COURT
Mother was not required to prove the move would improve the quality of their lives, only it had the capacity to do so.
CHILDS QUALITY OF LIFE STAYS THE SAME, EXCEPT FOR NOT SEEING DAD AS MUCH!
The Lapeer Family Court found, the evidence showed the children would have basically the same lifestyle regardless of where they lived, apart from the diminution in time spent with defendant.
MOTHER WAS MOVING TO A GOOD HOME
There was a suitable home in a suitable neighborhood in both communities, there were good schools in both communities, the children had friends in both communities, and they had a chance to see nearby relatives in both communities.
MOM THE PROVIDER LOST HER JOB, MOVED TO FIND ANOTHER
However, mother , who had been the children's sole source of financial support because father was unemployed, had lost her job and been unable to find new employment in Michigan, but she had some work available to her immediately in Massachusetts.
IF MOM STAYS IN MICHIGAN CHILD FINANCIALLY HARMED
The trial court tacitly recognized if mother were to remain in Michigan without work, the children's quality of life could be detrimentally affected.
MOM WINS FACTOR A
Thus, the trial court's conclusion with respect to factor (a) was not against the great weight of the evidence.
DAD DID NOT USE ALL THE PARENTING TIME THE COURT HAD ORDERED
As to factor (b), the Lapeer court found father had not taken full advantage of his parenting time.
DAD WAS THE BABY SITTER
Although the custody and support order entered in 2005 was not admitted into evidence, he admitted it gave him parenting time for half the summer and he had not exercised the time, apparently because of all the extra time he spent babysitting the children.
DAD STEPPED TO THE ;PLATE AND TOOK CARE OF THE CHILDREN WHILE MOM AT WORK! COURT SAYS THAT’S NO ENOUGH!
While father was seeing the children on a regular basis almost daily, the time spent with them for a few hours while mother was at work and on alternate weekends was not the same as being a full-time parent for five or six weeks at a time.
MOM WINS FACTOR B
Thus, the Lapeer court's conclusion with respect to this aspect of factor (b) was not against the great weight of the evidence.
COURT SAYS EVEN WITH THE 1000 MILE MOVE DAD CAN STILL BNE THE SAME KIND OF DAD TO THESE KIDS.
As to (c), the Lapeer court found it would be possible to work out a new visitation schedule adequate to preserve defendant's relationship with the children. This finding was supported by mothers testimony father had maintained regular telephone contact with the children during an extended vacation to Massachusetts, and by her testimony regarding a proposed visitation schedule.
MOM WINS FACTOR C.
Thus, the trial court's conclusion with respect to this aspect of factor (c) was not against the great weight of the evidence. Defendant did not challenge the trial court's findings regarding factors (d) and (e).
DO YOU BELIEVE THAT WAS THE RIGHT CONCLUSION?
SOMETIMES THE LAW IS USED TO REACH THE CONCLUSION THE COURT WANTS.
WHAT WAS THIS LAW?
1. Local courts like Lapeer have great discretion. For a higher court to reveres a lower court it must find abuse. Good luck with that one. An abuse of discretion in matters involving child custody exists where the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. Shulick v Richards, 273 Mich App 320, 324- 325; 729 NW2d 533 (2006).
2.When mom and dad share joint legal custody of their children and one parent proposes to
relocate more than 100 miles away, a motion for change of domicile is governed by MCL
722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus v
Rittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007).
3.That statute MCL 722.31 says:
Before permitting a legal residence change. . . , the court shall consider
each of the following factors, with the child as the primary focus in the court’s
deliberations:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child. [MCL 722.31(4).]
4. Mom had the burden of bringing the evidence. The party , mom here, seeking a change of domicile has the burden of proving by a preponderance of the
evidence that the change is warranted. Brown, 260 Mich App at 600.
5. The high court did not say it was the right decision only that the decision allowing mom to
change domicile was not an abuse of discretion.
Posted here byTerry Bankert
http://www.attorneybankert.com/
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