Here is my latest vlog discussing the challenges associated with school change appeals.
Labels: Emergency Appeal, Pierron v Pierron, School change, School choice, Timing, Transcriipts
Speaker Law
Blog
HB 4691 is Bad for Michigan Children and Families
Posted on Monday, August 28, 2017
The Michigan legislature is trying to pass legislation called the Michigan Shared Parenting Act, HB 4691, http://www.legislature.mi.gov/(S(2bjmoemzoxqbnuuhgn2vbgxb))/mileg.aspx?page=GetObject&objectname=2017-HB-4691, which completely throws out over 30 years of statute and case law, and favors consistency (in the form of joint custody for all cases) over the best interests of the children. This bill is a horrible idea, it is bad for families, and especially bad for children. I don’t remember the last time I spoke out against proposed legislation. Let’s just say, it is few and far between. But I couldn’t remain silent after reading HB 4691.
Our
firm specializing in appeals, and we spend a great deal of our time on family
law appeals. This means over 75% of our cases, we are reviewing the decision of
a family law judge, and very frequently do so in custody appeals. Even
though our job often is to explain why the trial court’s decision is wrong,
either factually or legally, and even though we have a very vibrant
appellate practice, we only see a small fraction of the custody cases that are decided
by our Michigan judges.
This
bill proposes to take away any trial court discretion. That is a horrible
idea. The trial court is the one who sits and listens to the credibility
of the witnesses. The trial court is the one who weighs what is in
the child’s best interest. This bill takes away the
requirement that a custody decision be in the child’s best interest and
reflexively instructs the trial court to award joint custody in almost every
case, regardless of the needs of any particular child or any particular family.
Joint custody is great sometimes. It is also terrible sometimes. Joint custody
does not work for every case and HB 4691 will frankly be a disaster for
children and families.
Interestingly,
some of my colleagues have done research and have learned that joint
custody is already becoming more common. By way of comparison between
statistics in 1990 and 2015 the percent of custody award to the mother, father,
joint, or third party:
- 1990 -- Mother 74%; Father 12%; Joint 13%, and third party 1%
- 2015 - Mother 45%; Father 8%; Joint 44%, and third party 3%
As
observed in these statistics, the trial courts have dramatically increased the
percent of time that they award joint custody. To me, this shows that the
system we currently have in place, does not need to be thrown out the window,
as HB 4691 would do. This significant progress happened under a Child Custody
Act that has remained relatively static. This suggests that our current laws
don't need reforming. Instead, the change has been in societal and judicial
attitudes. The one thing that has changed over the time-frame shown by these
numbers is the creation of the family division with judges who have specialized
knowledge. It isn't perfect, of course. We still have the problem of rotation
and of new judges newly elected or appointed to the bench being assigned to the
family division even if they have no interest or experience in the area of
family law. Many family law attorneys have concluded that if we want to
continue this trend toward gender equity in custody awards, we need for focus
on court structure and judicial education issues, not messing with the best
interests factors or presumptions, which we think are already gender neutral.
Also,
as an appellate attorney, we think HB 4691 would create a ton of work for our
law practice. There are so many terms that are defined in the law that it will
create a lot of appellate litigation. The legislation is frankly very
confusing, which will also give appellate attorneys a field day. Yet my concern
for families and children of this state overrides any potential increase in
business my firm would receive from the passage of HB 4691.
Labels: best interests of child, child custody act, family law appeal, HB 4691, joint custody, shared parenting time, trial court discretion
Dissent Presents Effective Argument for Allowing Change of Residence
Posted on Wednesday, August 2, 2017
The Michigan Court of Appeals, in Hund v Hund, No.334313, a divided opinion, affirmed a lower court order that denied defendant-mother’s request to change the legal residence of the child, OMH, to Canada while granting plaintiff-father’s motion for primary physical custody. The dissenting opinion, written by Hon. Michael Gadola, argued that a change of domicile to Canada was warranted and that the lower court abused its discretion by granting the father’s motion for change of custody.
Facts:
The Hunds divorced in 2013. The
parties agreed to joint legal custody of their child, OMH, the mother having
primary physical custody while the father had parenting time. Time passed and
the mother met and married Ryan Tiernay who lived in Sarnia, Ontario, Canada.
At the time mother lived in Howell and father lived in Pinckney. The mother
filed a motion in the court to change the child’s legal residence to Sarnia
when the father wouldn’t allow the child to move. Following a two-day hearing,
the referee recommended:
- Denial of defendant-mother’s motion to change
domicile because she failed to show by a preponderance of the evidence
that the factors in MCL 722.31(4) supported the move, and
- A grant of the plaintiff’s motion to change custody because the plaintiff proved by clear and convincing evidence that the change was in the child’s best interest.
The
defendant objected to the recommendation, however, the trial court adopted the
recommendations. The Court of Appeals affirmed the trial court.
The
dissent:
Why
are dissenting opinions important? The
reasoning in a dissent, such as the extensive one written by Judge Gadola, can,
over time, a convince a majority of the court. In that case, the original
majority decision can be overruled.
Defendant’s Motion for Change of Domicile
The
opinion begins with Judge Gadola’s statement that “…defendant’s proposed move
to Sarnia, Ontario, Canada should not have triggered the application of MCL
722.31 (1)” which states:
Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
Judge
Gadola argued that the distance used for assessing the applicability of the
above section is measured in radial not road miles. (Bowers v
VanderMeulenBowers, 278 Mich App 287, 294; 750 NW2d 597 (2008). The radial
distance from the Pinckney residence to the furthest outer edge of Sarnia is
only approximately 90 miles. However, the opinion notes that the original
custody order in this matter prohibits moving the child out of the state
without permission of the court regardless of the distance. Indicating that,
had he not been constrained by case law (Gagnon v Glowacki, 295 Mich App
557, 566; 295 NW2d 557 (2012) which supports the prohibition against moving out
of state regardless of the number of miles, he would hold that defendant should
not have been subject to an inquiry under MCL 722.31.
Even so, after reviewing the
factors in MCL 722.31(4), he concluded that the trial court’s findings
regarding the statutory change-of-domicile factors went against the great
weight of the evidence. Looking at each in turn, Judge Gadola wrote “All things
considered, it appears that the trial court found that all of the
change-of-domicile factors other than MCL 722.31(4)(a) were neutral, and, in my
opinion, these findings were not against the great weight of the evidence.”
Looking at (a) which states
“Whether the legal residence change has the capacity to improve the quality of
life for both the child and the relocating parent.” Judge Gadola argued that
the testimony showed that Tiernay’s income would allow defendant mother to stay
at home, the move to Sarnia would provide the child with a high-quality
education, bring him closer to his extended family and that he had developed a
close relationship with his step-family. All these factors, said the opinion,
would improve his quality of life. “Considering this evidence, the trial court’s
finding that defendant’s proposed move did not have the capacity to improve the
child’s life was against the great weight of the evidence.”
Plaintiff’s
Motion to Change Custody
Majority
applies an improper legal framework
Judge Gadola first noted that
because plaintiff was seeking to modify custody, the trial court was not
permitted to revisit the existing custody order and assess the child’s best
interests unless plaintiff first established proper cause or a change of circumstances
under the restrictive standard set forth in Vodvarka v Grasmeyer,
259 Mich App 499, 509-514; 675 NW2d 847 (2003). The majority opinion fails to
address this threshold inquiry before concluding that the child had an
established custodial environment with both parents and discussing the trial
court’s best-interest analysis under MCL 722.23. “Accordingly, the majority
applies an improper legal framework for reviewing plaintiff’s motion to change
custody.”
Plaintiff can’t reopen custody matter
Plaintiff can’t reopen custody matter
“I further believe that the trial
court abused its discretion by granting plaintiff sole physical custody of the
child. Under the Child Custody Act, a party moving to modify an existing child
custody order must first establish proper cause or a change of circumstances
before the trial court may reopen the custody matter and hold a hearing to
assess whether the proposed modification is in a child’s best interests.”
In this case, Judge Gadola noted
that the changes that occurred in the child’s life were the normal life changes
the occur during the life of a child and don’t warrant a change of custody.
“Applying the proper threshold inquiry, plaintiff failed to demonstrate proper
cause or a change of circumstances under Vodvarka sufficient
to allow the trial court to reopen the custody matter.”
Looking
at each factor
The trial court found that an
established custodial environment existed with both parents and that awarding
plaintiff sole physical custody could alter that environment. When a change of
custody affects a child’s established custodial environment, the proponent of
the change bears the burden of proving by clear and convincing evidence that
the change is warranted under the best-interest factors in MCL 722.23.
The trial court concluded that
plaintiff proved by clear and convincing evidence that the change of custody
was in the child’s best interests after finding that factors (b), (c), (d),
(e), (h), and arguably (l) favored plaintiff, while all other factors were
neutral. The COA agreed.
Judge Gadola, after analyzing
each factor in turn, wrote “In my opinion, these factors should have been
considered either neutral or as favoring defendant. Plaintiff did not present
any evidence that would rise to the level of “clear and convincing” to support a
change of the child’s physical custody.
Conclusion:
Judge Gadola concluded that
“Nothing from the facts of this case would support by clear and convincing
evidence that a disruptive change of the child’s physical custody was
warranted. Accordingly, I would additionally hold that the trial court abused
its discretion by granting plaintiff’s motion to change custody.”
Labels: custody appeal, family law, joint legal custody, livingston county, Michael Gadola, Michigan Appeals, Motion for Change of Custody, Motion to Change Domicile, Radial Miles, Road Miles, Vodvarka
