On Remand From MSC, Appeals Court Vacates Erroneous Child Domicile Analysis

The Michigan Court of Appeals, in a custody case on remand from the Michigan Supreme Court, has ruled that a portion of its original opinion “erroneously instructed the trial court to apply MCL 722.31 to determine the child’s domicile.”

In Kleinfeldt v Stern (Docket No. 365506), the parties had executed an affidavit of parentage (AOP) that gave initial custody of the parties’ child to the defendant-mother. The defendant-mother later appealed the Oakland County Circuit Court’s order determining established custodial environment, custody, domicile, parenting time, child support, attorney fees and expenses.

The Court of Appeals affirmed the trial court’s ruling in part, vacated in part and remanded the matter for further proceedings. (See, Kleinfeldt v Stern, unpublished per curiam opinion of the Michigan Court of Appeals, issued April 18, 2024 (Docket Nos. 365506 and 366777) (Kleinfeldt I).)

The Court of Appeals decision was appealed to the Michigan Supreme Court.

On appeal, the high court issued an order that vacated Part IV(A) of the Court of Appeals opinion. The justices remanded the case “to consider the domicile issue.” (See, Kleinfeldt v Stern, Michigan Supreme Court order, issued November 27, 2024 (Docket No. 167316).)

The Court of Appeals, on remand, held that Part IV(A) of its original decision (Kleinfeldt I) wrongly instructed the trial court to apply MCL 722.31 to determine the child’s domicile. “The trial court should instead apply MCL 722.27 in determining the issue of domicile because there was not yet a custody order in place at the time the trial court entered the order at issue on appeal,” the appeals court stated.

Judge Michael F. Gadola, Judge Stephen L. Borrello and Judge Mark T. Boonstra were on the Court of Appeals panel that issued the unpublished opinion.

MSC Remand Order

In its order remanding the domicile issue, the Michigan Supreme Court cited MCL 722.1006 and said the Court of Appeals correctly held that:

• the AOP executed by the parties granted the defendant initial custody of the child.

• the execution of the AOP was not an initial custody order.

“The Court of Appeals erred, however, by directing the trial court to apply MCL 722.31 when determining the child’s domicile,” the high court said. “MCL 722.31 applies only to children ‘whose parental custody is governed by court order.’ … In this case, the statutorily required presumptive award of custody to the mother did not serve as an initial custody determination.”

In contrast, MCL 722.27 “applies to a child custody dispute that is ‘submitted to the circuit court as an original action’ under the Child Custody Act, MCL 722.21 et seq.,” the justices observed.

Accordingly, because this case was submitted to the trial court as an original action under the Child Custody Act, “MCL 722.27 controls for the custody determination,” the Michigan Supreme Court said. “We therefore remand this case to the Court of Appeals to consider the domicile issue and its effect on the Oakland Circuit Court’s custody order in a manner consistent with this order. …”

‘Original Action’

In its analysis on remand, the Court of Appeals acknowledged the AOP that gave initial custody to the defendant-mother.

“But this AOP did not constitute an initial custody order,” the Court of Appeals said. “MCL 722.31 applies only to children whose custody is governed by court order. Thus, the trial court should instead apply MCL 722.27 in determining domicile because this custody dispute was submitted as an original action.”

The Court of Appeals explained that MCL 722.27(1) provides that if a child custody dispute has been submitted to the trial court as an original action, for the best interests of the child, the trial court may do one or more of the following:

“… (c) Subject to subsection (3), modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. If a motion for change of custody is filed while a parent is active duty, the court shall not consider a parent's absence due to that active duty status in a best interest of the child determination.”

According to the Court of Appeals, “[t]he first sentence of MCL 722.27(1)(c) only applies when a party is attempting to modify or amend an existing custody order, while the second sentence mandates that the trial court not ‘modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.’”

In this case, because the trial court’s decision about domicile “was included in an initial custody order and was not a modification or amendment of a previous order, it was only subject to the second sentence of MCL 722.27(1)(c),” the Court of Appeals said. “As such, the requirement to show proper cause or change of circumstances does not apply to the trial court’s initial award of custody. ...”

Further, the trial court “should not issue ‘a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child,’” the Court of Appeals stated.

Here, the trial court found – and the appeals court affirmed in Kleinfeldt I – that the child had an established custodial environment with both parents, the Court of Appeals observed. “Therefore, the trial court must first consider whether issuing an order designating the child’s domicile as Michigan or Florida would change the established custodial environment of the child. … If declaring either Michigan or Florida as the child’s domicile does not change the established custodial environment, the trial court may issue a new order. … If the decision regarding domicile changes the established custodial environment, the trial court must determine whether there is ‘clear and convincing evidence that it is in the best interest of the child’ to support its decision. … The best interest of the child is determined by evaluating each of the factors set forth in MCL 722.23.

Therefore, “[w]e vacate the trial court’s finding of domicile and remand for reconsideration consistent with MCL 722.27(1)(c),” the Court of Appeals concluded.