Court: Michigan Court of Appeals ( Unpublished Opinion )
Motion to change child’s domicile; Rains v. Rains; Sulaica v. Rometty; Principle that MCL 722.31(4) does not apply where one of the child’s parents has sole legal custody; MCL 722.31(2); Spires v. Bergman; Finding that the child had an established custodial environment with both parents; MCL 722.27(1)(c); Berger v. Berger; Finding that a change in domicile was not in the child’s best interests; The statutory best interest factors; MCL 722.23; Factors (b), (d), (e), (h), (i), & (j); Great weight of the evidence standard; Yachcik v. Yachcik
Holding that the trial court’s findings that the parties’ child had an established custodial environment (ECE) with both parties and that a change in domicile was not in her best interests were not against the great weight of the evidence, the court affirmed the trial court’s order denying the plaintiff-mother’s motion to change the child’s domicile. While she argued on appeal that the trial court erred in considering the MCL 722.31(4) factors given that she had sole legal custody of the child, the court disagreed. The Friend of the Court (FOC) erred in considering these factors, but the trial court corrected the error at the de novo review hearing. Thus, there was “no merit to plaintiff’s claim that the trial court applied the wrong legal framework.” While it “did not specifically explain each step in the applicable legal process, it essentially followed the steps outlined in” Sulaica and Rains. As to the finding that the child had an ECE with both parents, defendant-father testified at the FOC hearing that he had her “approximately 40% of the time, including ‘pretty much all summer’ and ‘every weekend.’ Plaintiff acknowledged that defendant had ‘regular’ and ‘consistent’ parenting time with” the child for the last couple years. The distance between the Michigan city where she currently lived and Milwaukee, Wisconsin (where plaintiff wanted to relocate with her) “would make it difficult for defendant to have consistent visitation with” the child. While plaintiff offered to meet him one weekend a month to allow him to see the child, “this would constitute a significant change from the parties’ present arrangement.” The court concluded that the FOC’s findings (affirmed by the trial court) that the child had an ECE with both parties and that a change in domicile would alter it “were not against the great weight of the evidence.” The court also upheld the trial court’s affirmance of the FOC’s finding that clear and convincing evidence did not show that a change in domicile was in the child’s best interests. While plaintiff challenged the FOC’s findings on statutory best interest factors (b), (d), (e), (h), (i), and (j), the court held that none of these findings were against the great weight of the evidence.