Child Custody Act Misinterpreted, Father’s Change Of Domicile Motion Wrongly Denied

In this custody/change of domicile appeal, the trial court committed “clear legal error” by considering whether the children’s mother would be able to maintain her existing parenting-time schedule if the children moved with their father to Indiana, the Michigan Court of Appeals has ruled.

“This was improper,” the Court of Appeals said in Grayer v Grayer (Docket No. 345322). “The trial court should have, instead, considered whether the proposed schedule would provide [the mother] with a realistic opportunity to maintain her relationships with the children.”

According to the Court of Appeals, the trial court’s decision was “improperly influenced” by an erroneous interpretation of the Child Custody Act - specifically MCL 722.31, which governs change of domicile.

Therefore, the Court of Appeals vacated the trial court’s ruling and remanded the matter for further proceedings.

Motion To Change Domicile

The plaintiff mother and the defendant father were divorced. They had joint physical and legal custody of their two minor children.

When the defendant moved from Michigan to Indiana to attend Notre Dame Law School, he filed motions in Jackson County Circuit Court for sole legal custody of the children, a change of domicile for the children and increased parenting time.

After an evidentiary hearing and interviews with the children, the trial court found the defendant did not prove by clear and convincing evidence that a change of domicile was in the children’s best interests. Accordingly, the trial court denied the defendant’s motion for a change of custody and a change of domicile and, instead, awarded primary physical custody to the plaintiff.

The defendant appealed.

Child Custody Act

On appeal, the defendant claimed the trial court erred by: 1) denying his motion for a change of domicile; 2) improperly analyzing the best interest factors; 3) denying his proposed parenting-time schedule; and 4) changing the parties’ custody agreement. “Because defendant’s first argument is meritorious, we decline to review the remaining claims on appeal,” the Court of Appeals said.

The Court of Appeals began its analysis by noting that a trial court commits “clear legal error” when it chooses, interprets or applies the law incorrectly. The Court then examined the applicable law, pointing out that, in general, a child whose custody is governed by court order has a legal residence with each parent and the parents may not change the child’s legal residence to a location more than 100 miles from their location at the time the original order was issued.

The Court of Appeals explained that, under MCL 722.31(4), when one party wishes to change the child’s domicile more than 100 miles, the trial court must consider the following factors:

• whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

• 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.

• 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.

• 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.

• domestic violence, regardless of whether the violence was directed against or witnessed by the child.

Citing Rains v Rains, 301 Mich App 313 (2013), the Court of Appeals said a trial court’s process for deciding a change of domicile motion involves essentially four steps:

• the trial court must determine whether the moving party has established by a preponderance of the evidence that the factors set forth in MCL 722.31(4) - the so-called D’Onofrio [v D’Onofrio, 144 NJ Super 200, 365 A2d 27 (1976)] factors - support a change of domicile motion.

• if the factors support a change in domicile, the trial court must then determine whether an established custodial environment exists.

• if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify that established custodial environment.

• if, and only if, the trial court finds that a change of domicile would modify the child’s established custodial environment must the trial court determine whether the change in domicile would be in the child’s best interests by considering whether the best interest factors in MCL 722.23 have been established by clear and convincing evidence.

“Realistic Opportunity”

In this case, the defendant asserted the trial court erred in applying MCL 722.31(4)(c). This section of the Child Custody Act says: “(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court's deliberations: … (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.”

Regarding this section of the Child Custody Act, the trial court had said that “‘[g]iven the parties [sic] established parenting-time schedule, and Plaintiff-Mother’s custodial relationship with the children, a move of this distance would ultimately disrupt and significantly alter the current arrangements,’” the Court of Appeals observed.

However, a trial court’s inquiry in this regard “should not be whether the proposed parenting-time schedule is equivalent to the old; rather, it should be ‘whether the proposed parenting-time schedule provides a realistic opportunity to preserve and foster the parental relationship previously enjoyed’ by the nonmoving parent,” the Court of Appeals emphasized.

As a result, the trial court erroneously applied MCL 722.31(4)(c), the Court of Appeals said, noting the proper question is not whether the plaintiff could maintain the current visiting schedule. “But this is what the trial court considered, finding that ‘a move of this distance would ultimately disrupt and significantly alter the current arrangements.’ The trial court only considered whether, after defendant moved, plaintiff would be able to continue her current parenting-time arrangement. This was improper.”

Rather, the trial court should have considered whether the proposed schedule would offer the plaintiff a “realistic opportunity” to sustain her relationships with the children, the Court of Appeals stated. “Therefore, the trial court’s decision was ‘improperly influenced by an erroneous interpretation of factor (c).’ … The trial court clearly erred.”