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Labels: Change of Circumstances, Family Law Appeals, Ingham County, lansing, Motion to Change Custody, proper cause, Vodvarka

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Labels: 326651, Change of Circumstances, Court of Appeals, grossly improper, Judge Reader, livingston county, McConchie, Michigan, order, Porper Cause, published opinion, vacate, Voight

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The Court of Appeals in Frowner v Smith, published opinion of the Court of Appeals, issued April 26, 2012 (Docket 305704), addressed whether a parent has to satisfy the Vodvarka threshold to change custody from a third party custodian. The Trial Court very clearly believed that it knew the law on this issue, and in fact, chastised the parent for challenging the third party custodian: "The child is already in an established custodial environment with the [third party custodians] and you have parenting time, pursuant to the last Court order. . . That’s the law in Michigan. And you should consult with a lawyer if you think it’s anything different than that. Trust me, I’m well versed in it."

　

In a published opinion, the Court of Appeals confirmed what the Michigan Supreme Court has stated in Hunter v Hunter 484 Mich 247, 263; 771 NW2d 694 (2009) – that when there are competing presumptions between a third party custodian with whom a child has an established custodial environment and a biological parent who does not have custody of the child, the latter presumption (of the parent) trumps the third party custodian. Accordingly, the Frowner court held the trial court clearly erred by holding that a parent has to demonstrate the Vodvarka threshold of proper cause or change of circumstances in order for a trial court to evaluate whether it can change custody from the third party custodian to the parent. Instead, under MCL 722.25(1), the third party custodian has to demonstrate by clear and convincing evidence that it is not in the child’s best interest to have custody in the parent. "[D]ue regard for Smith’s parental rights requires that the circuit court presume him to be the proper caretaker of his child. Enforcing this presumption requires that any opposing presumption, shielding the child from a custodial change absent a showing of proper cause or changed circumstances, must yield."

Labels: Change of Circumstances, Child Custody appeal, Michigan, proper cause, Third Party Custodian, Vodvarka, Wayne County

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In Powery v Wells, the COA affirmed a trial court’s order changing custody of a minor child based on the mother’s move from Ludington to Traverse City. The trial court ordered the change even though the move was less than 100 miles and the child had an established custodial environment with both parents. The COA reasoned that the father met his burden of illustrating a change in circumstance by showing that the move to Traverse City would disrupt the current parenting time arrangement. It further held that the modification of parenting time triggered by the mother’s move amounted to a change in the established custodial environment because it would turn one parent into a “weekend parent.” The COA concluded that the move was not in the child’s best interest based on the disruption in parenting time. Although the trial court failed to include a statement in its opinion that modifying the custody order to grant defendant weekly physical custody during the school year was in the child’s best interest, the Court inferred that conclusion from the trial court’s written opinion. The opinion resulted in the father obtaining custody during the school year if the mother chooses to stay in Traverse City. Interestingly, this decision ends in the same result that the trial court ostensibly wanted to avoid--turning the mother into the weekend parent. This begs the question: what is the relevance of the 100 mile rule if a change in circumstance can be found with any move that slightly alters the status quo?

Labels: best interests of child, Change of Circumstances, Ludington, Mason County, Michigan, Traverse City

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