Trial Court Correctly Denied the Defendant’s Motion to Change Domicile to a Foreign County
Opinion Published: 6/23/2022 (Boonstra, Gadola, Hood; Judge Hood, Author)
Docket No. 358877
Oakland County Circuit Court
Holding: The trial court correctly denied the Defendant’s motion to change domicile as the change of domicile to a foreign county would alter the established custodial environment with one parent and was not in the best interests of the child.
Facts: Plaintiff and Defendant were both Pakistani citizens and married in Pakistan. They eventually moved to the United States. Defendant moved to Michigan to live with her aunt while Plaintiff remained in Maryland. On January 1, 2016, the couple had their only daughter.
The parties divorced in December 2016. The parties were awarded joint legal custody, with Defendant being granted sole physical custody. The divorce judgment specifically prohibited parenting time in any country that is not a party to the Hague Convention, in accordance with MCL 722.27a(10), prohibiting parenting time in the parties’ home county of Pakistan.
In March 2017, Defendant filed a motion to change domicile to relocate with the minor child to Pakistan. She argued that Pakistan had taken steps to become a party to the Hague Convention. Plaintiff objected, arguing that Pakistan’s accession to the Convention has not made it a treaty partner with the United States or a party in accordance with MCL 722.27a(10). On appeal, the Court of Appeals agreed with Plaintiff. (Safdar I, 321 Mich App 219; 909 NW2d 831 (2017), aff’d in part and vacated in part 501 Mich 213 (2018)).
In August 2020, Defendant again attempted to change the child’s domicile to Pakistan because the United States had accepted Pakistan’s accession to the Convention. This time, the trial court sided with Defendant that Pakistan was a party to the Hague Convention, but ultimately denied Defendant’s motion to change the child’s domicile. Defendant appealed.
Key Appellate Rulings:
The prohibition of MCL 722.27a(10) does not apply to countries who have acceded to the Hague Convention and the United States has accepted that accession.
The Court of Appeals first held that the prohibition of MCL 722.27a(10) does not apply to Pakistan. Because Pakistan acceded to the Hague Convention, and the United States accepted the accession, Pakistan was officially a contracting party to the Convention.
Where the parties live more than 100 miles apart, the trial court need only determine whether there is an established custodial environment, whether that environment would change, and whether the change is in the child’s best interests.
Neither party challenged the trial court’s ruling regarding the applicability of the MCL 722.31(4) change of domicile factors, as it is undisputed that the parties live more than 100 miles apart.
The Court of Appeals held the trial court’s finding that Plaintiff has an established custodial environment with the child was not against the great weight of the evidence. Evidence from the trial court indicated that Plaintiff gave his daughter advice and guidance, disciplined his daughter, bought her groceries, and often videoconference with his daughter twice a week much longer than the designated thirty minutes.
The Court of Appeals further held that the change of domicile would alter the child’s custodial environment. The trial court acknowledged that Plaintiff would be unable to drive or take a short flight for parenting time, an emergency, a major life milestone, or an extracurricular school activity. Further, the time zone difference between Maryland and Pakistan would require inconvenient timing for videoconferencing. Plaintiff’s employment made it impractical to make trips to Pakistan to exercise parenting time, and Defendant’s past reluctance to share information about the parties’ daughter would be worsened by a move to Pakistan. Therefore, the trial court’s finding that a move to Pakistan would change the child’s established custodial environment with Plaintiff was not against the great weight of the evidence.
The Court of Appeals also held that the trial court’s findings regarding the best interest factors were not against the great weight of the evidence. The trial court found that factor (d) - the stability of the home and the desirability of maintaining continuity - favored neither party. Even if the child currently lived in a stable environment, the move to Pakistan would remove her from that environment.
The trial court also correctly found that factor (j) - the parties’ willingness to facilitate a close parent-child relationship - favored Plaintiff. Plaintiff’s testimony revealed that he would often learn important information late, such as when he was not told that his daughter was not attending school for nearly two years.
Finally, the trial court did not err in finding that factor (l) - any other factor the court considers relevant - favors Plaintiff. The trial court was not convinced that Defendant could not find work in the United States The trial court instead found that her job search efforts in the United States were not in good faith because she only applied for jobs she was not qualified for. In sum, the trial court correctly found that best interest factors (j) and (l) favored Plaintiff, and the remaining factors were neutral or inapplicable.
Because the trial court’s findings where not against the great weight of the evidence, the Court of Appeals held that Defendant failed to show by clear and convincing evidence that a move to Pakistan would be in the child’s best interests. Therefore, the trial court properly denied Defendant’s motion for a change of domicile.
