The Court of Appeals' jurisdiction in post judgment custody appeals has long been a vexing area for family law attorneys. MCR 7.202 grants an appeal by right to post judgment orders affecting custody. Due to the uncertainty in how the Court of Appeals interprets 7.202(6)(a)(iii), many times appellate attorneys will simultaneously file a claim and an application. But there is additional cost and rush to do an application in 21 days. Obviously this type of uncertainty is not ideal. For a period of time the Court of Appeals seemed more willing to accept appeals of orders as post judgment orders affecting custody. The trend seemed to be that the court would accept a claim if the appeal was brought by a custodial parent, even when it was just a parenting modification. See Simon v Simon (Docket No. 308528); Jackson v Anderson (Docket No. 315648). But the Court of Appeals was more likely to dismiss the appeal by right when a non-custodial parent challenged the custody order. See, e.g., Flick v Marsh (Docket No. 327679). The Court of Appeals seemed to resolve the uncertainty in Wardell v Hincka, 297 Mich App 127 (2012) (Docket No. 308243) seemed to resolve this issue when it held that an order need not change custody to “affect” custody, and that a denial of a motion to change custody “affects” custody just as a grant of such a motion does.
However, the Court of Appeals changed the direction again last year in Madson v Jaso (Docket No. 331605) and Ozimek v Rodgers (Docket No. 331726). After dismissing the appeals by right for lack of jurisdiction, the parties appealed to the Supreme Court and the Supreme Court remanded for the Court of Appeals to issue an opinion on the jurisdictional issue. The result was 2 opinions issued on the same day. In Madson the sole physical custodian challenged a parenting time order that completely swapped the schedule from the father having most of time and mother having alternating weekends to the converse. The Court of Appeals however characterized it as a "make up" parenting time order.
Ozimek is a legal custody issue when a change of school was denied. The Court said legal custody does not "affect custody."
Both cases are pending in the Supreme Court for a second time and family law appellate attorneys anxiously await a decision.