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To decide a child's domicile for purposes of insurance coverage under the No-Fault Act, MCL 500.3114(1), the Michigan Supreme Court turned to family law in Grange Insurance v Lawrence (Docket 145206 & 145808) (authored by Justice Mary Beth Kelly). Putting aside the fact that the No-Fault Act should define domicile for purposes of insurance coverage, and not domestic relations law, the Michigan Supreme Court misapplied family law tenets to conclude that the child at issue (fatally injured in an automobile accident) was domiciled in one parent's home rather than in the homes of both her parents who shared custody. To reach into family law, the Court reasoned: the Legislature’s use of the term “domiciled,” evinces an intent to incorporate all those common-law legal concepts related to that term, including the law of domicile as it relates to minors more fully addressed below." First, the Court spends a great deal of time analyzing the "common law" of domicile as it pertains to family law, even though the Child Custody Act governs, not common law. Then when the Court finally turns to the Child Custody Act, the Court notes that even though the Child Custody Act allows a child to have residence with both parents, the child can only have one domicile. The Court then says that the domicile is established only by the custody determination of the family court. Essentially, the Court holds that it is impossible for a child to have a domicile in the home of both parents, even if the family court ordered "joint custody" or even if the parties have equal parenting time, such as a week-on/week-off arrangement. The Court did address that situation where the parties, by court order, have "shared physical custody" and equally share parenting time, and concluded that in that scenario, the child's domicile would change depending on whose house she was at for that parenting time. At least three justices on the Michigan Supreme Court questioned the majority's approach. (Zahra, Markman, and McCormick, concurring). The concurring opinion commented that the majority opinion "falls short of addressing the practical realities of post-divorce familial relationships." In doing so, the concurring opinion concluded that a family court order establishes a rebuttable presumption of the child's domicile. The court should consider factors relevant to the child's domicile, such as "where the child goes to school, where the majority of the child’s belongings are kept, and the address used to register the child for functions." The concurring opinion also has problems. For example, its says the majority opinion forces the insurance company to examine custody orders, rather than simply asking the insured who resides with them. By the same token, the Court's opinion will also force family law judges and attorneys to consider "domicile" for purposes of the No-Fault Act since apparently the custody orders will be a decisive factor in the event the children are involved in an auto accident.

Labels: auto accident, child custody act, child custody dispute, domicile, grange v lawrence, judgment of divorce, justice mary beth kelly, justice zahra, michigan supreme court, Muskegon County, no-fault act, residence

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Over the past several months Michigan's appellate courts have turned their attention to stepparent adoption cases. These appeals have focused on the application of the statute, MCL 710.51(6), in terminating the rights of natural parents, as well as issues involving statutory interpretation and legislative intent. In re AJR, -- Mich App -- ; -- NW2d -- (2013), was the first such case, involving the termination of a respondent-father’s rights to his child after the petitioner-mother and petitioner-stepfather filed for a stepparent adoption. The petitioners alleged, in a nutshell, that the respondent had failed to visit the child for more than two years, while also failing to financially support the child. The petitioner-mother maintained sole physical custody of the child after her divorce from the respondent, yet the parties shared joint legal custody of the child. The trial court, after hearing two days of testimony regarding the father’s care and connection with the child, approved the stepparent adoption and terminated the respondent’s parental rights. On appeal the respondent argued that termination under MCL 710.51(6) was not appropriate because he maintained joint legal custody of the child, and the language of the statute provides that: “If the parents of a child are divorced, . . . and if the parent having legal custody of the child subsequently marries and that parent's spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent . . . .” MCL 710.51(6). The respondent argued that the phrasing indicated that subsection six was only applicable to a parent that has sole legal custody, because the statute uses the phrase “the parent having legal custody” not “a parent having legal custody.” The Court of Appeals agreed, finding that “ the Legislature wants to refer to something particular, not general, it uses the word ‘the,’ rather than ‘a’ or ‘an’” meaning that one particular parent would need to have sole legal custody for the statute to be applicable. In re AJR was followed by other statutory interpretation challenges, including In re Besok, unpublished opinion issued May 21, 2013 (Docket 313092), which alleged that the respondent-father did not have the ability to visit with his children within the previous two years. This challenge was less successful, as the Court of Appeals found in an unpublished opinion that the statute specified the respondent “visit, contact, or communicate,” as opposed to “and,” meaning that, since the respondent had not communicated at all with the children, termination was proper. Similarly, in In re CLJ, unpublished opinion issued June 18, 2013 (Docket 312778), the Court of Appeals affirmed the trial court’s discretionary decision not to terminate the father’s right, even though the petitioners provided sufficient evidence that the conditions in 51(6)(a) and (b) had been met, noting that the statutory language “the court upon notice and hearing may issue an order terminating the rights of the other parent” allowed the trial court to decline to terminate the father’s rights.

Labels: appeal, Court of Appeals, MCL 710.51(6), statutory interpretation, stepparent adoption, termination of parental rights

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