Motion To Designate Child’s School Improperly Treated As Custody Motion

A trial court erroneously treated a father’s motion to designate a school for his child as a motion for change of physical custody, the Michigan Court of Appeals has ruled.

As a result, the trial court improperly granted the father sole physical custody, rather than simply designating a school for the child, the Court of Appeals held in Cyster-Smith v Guerrero (Docket No. 350583).

The defendant-father and plaintiff-mother were never married and had one child, OG, together. The parties shared joint legal and physical custody. As OG reached school age, the parties disagreed which elementary school the child should attend. When the parties failed to reach an agreement, the defendant filed a motion for the trial court to designate a school for OG. The defendant claimed the best-interest factors in MCL 722.23 weighed in favor of the schools he had proposed.

After a hearing on the motion, the Wayne County Circuit Court found that OG should attend Blanche Sims school, which was closer to the defendant’s home than the plaintiff’s home. In addition, the trial court: 1) ruled that a change of physical custody from the plaintiff to the defendant was in OG’s best interests, 2) modified parenting time, 3) terminated the defendant’s child-support payments and 4) referred the case to the Friend of the Court for investigation to modify the defendant’s child-support obligation.

The Court of Appeals vacated the trial court’s order and remanded the case, finding clear legal error.

“Here, defendant filed a motion for designation of their minor child’s school because the parties could not agree on where OG should attend elementary school,” the Court of Appeals wrote. “The trial court held a hearing, but instead of determining whether the best-interest factors favored defendant’s school choice over plaintiff’s, the trial court concluded that the factors favored defendant in the context of a change of physical custody. The trial court decided that awarding defendant sole custody was appropriate, then designated Blanche Sims as OG’s school based on the custody determination. This was a clear legal error.”

Judges Anica Letica, Cynthia Diane Stephens and Colleen A. O’Brien were on the panel that issued the decision.

Background

After OG was born, the plaintiff and the defendant agreed on a final order of custody, parenting time and support. The order included a parenting-time arrangement that worked smoothly for several years.

However, as OG approached school age, the parties disagreed which elementary school the child should attend. When the parties were unable to agree on a school, the defendant filed a motion to have the trial court designate a school. The defendant suggested five private school alternatives, asserting the schools were essentially equal distance from the parties’ homes – a claim the plaintiff disputed. The defendant maintained the best-interest factors in MCL 722.23 weighed in favor of his proposed schools.

The plaintiff objected to the defendant’s suggestions, primarily because they would require OG to spend a significant amount of time traveling to and from school and in a latchkey program before and after school. The plaintiff also argued the best-interest factors favored OG attending the school that she had suggested, which was in the school district where her boyfriend taught.

Mediation unsuccessful and the trial court held an evidentiary hearing. In a written opinion, the trial court found the defendant had established by clear and convincing evidence that a change of physical custody from the plaintiff to the defendant was in OG’s best interests. The trial court designated Blanche Sims as OG’s school, modified parenting time, terminated the defendant’s child-support payments, and referred the case to the Friend of the Court for investigation to modify the child-support obligations.

‘De Facto’ Change Of Custody

On appeal, the plaintiff argued the trial court erred when it treated the defendant’s motion to designate a school for OG as a motion for change of physical custody. As a result, the plaintiff claimed the trial court erred by granting the defendant sole physical custody of OG instead of simply designating a school.

“We agree,” the Court of Appeals said.

The Court of Appeals explained that, when parties have joint legal custody, they share in the decisions that affect the child’s welfare. “However, when the parents cannot agree on an important decision, such as a change of the child’s school, the court is responsible for resolving the issue in the best interests of the child,” the panel said, citing Pierron v Pierron, 282 Mich App 222 (2009) (Pierron I), aff’d by Pierron v Pierron, 486 Mich 81 (2010) (Pierron II).

When parents with joint legal custody cannot agree, the trial court is required to hold an evidentiary hearing known as a “Lombardo hearing” (Lombardo v Lombardo, 202 Mich App 151 [1993]), the Court of Appeals observed. At a Lombardo hearing, the trial court must consider, evaluate and determine the best-interest factors in MCL 722.23 “to resolve disputes over important decisions affecting the child’s welfare that arise between joint custodial parents.” During a Lombardo hearing, the trial court “must narrowly focus its consideration of each best-interest factor on the specific important decision affecting the welfare of the child that is at issue.”

Although the trial court in this case held a hearing, the Court of Appeals said that instead of determining whether the best-interest factors favored the defendant’s school choice, the trial court concluded the factors favored the defendant in the context of a change of physical custody. “The trial court decided that awarding defendant sole custody was appropriate, then designated Blanche Sims as OG’s school based on the custody determination. This was a clear legal error.”

Presuming the trial court’s designation of Blanche Sims was in OG’s best interests, the Court of Appeals said this designation was basically a de facto change of physical custody in the defendant’s favor because of the close proximity of Blanche Sims to the defendant’s home, as well as to his parents, but was further from the plaintiff’s home. “’Such an effective change of custody would necessitate an additional review of the statutory best-interest factors of MCL 722.23 to determine whether [the proponent] could prove, by clear and convincing evidence, that the change of custody would be in the child[’s] best interests.’ If the proponent cannot meet his or her ‘burden of proving that a change in physical custody’ would be in the child’s best interests, ‘the court may realistically have no alternative but to determine which parent shall have sole custody of the child[].’”

Next, the Court of Appeals noted that Pierron I mandates an additional review of the best-interest factors separate from the trial court’s review of the factors related to the disputed issue, which in this case was OG’s school. “That is, after a determination that the proponent has satisfied his or her burden of proving that it is in the best interests of a child to attend one school over another, it is possible for the other party to move for a change of custody. … The proponent of the change of custody would then have to demonstrate ‘proper cause’ or a ‘change of circumstances’ sufficient to reopen the circuit court’s prior custody orders.”

Assuming the proponent of the change of custody could establish proper cause or a change of circumstances, the trial court would then be required to hold a full change-of-custody hearing and consider the statutory best-interest factors in MCL 722.23, the Court of Appeals observed. “Because any change of custody sought by [the proponent] in this regard would alter the children’s established custodial environment with [the other party], [the proponent] would be required to prove by clear and convincing evidence that the requested change of custody would be in the children’s best interests.” 

Accordingly, the Court of Appeals said, there are two layers of protection in these circumstances: 1) a best-interest analysis to determine the specific issue over which the parties disagree over - here, school designation, and 2) once that specific issue is resolved, one party can then move for a change of custody on the basis of the resolution of the specific issue. Here, however, the trial court “only conducted a change of custody analysis,” the Court of Appeals said. As a result, the trial court clearly erred by treating the defendant’s motion to designate a school for OG as a motion for change of custody.

“Having carefully reviewed the record, we agree that the remand before a different judge is advisable to preserve the appearance of justice and that doing so will not entail excessive waste or duplication,” the Court of Appeals held. “We vacate the trial court’s order, and remand for further proceedings before a different judge.”