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Motion To Change Domicile Vacated Because Established Custodial Environment Not Considered

Posted on Tuesday, May 21, 2019

In this action involving a mother’s motion to relocate the parties’ child to Sault Ste. Marie,  the trial court erred by failing to properly address whether an established custodial environment existed and, if it did, whether the relocation would alter that environment, the Michigan Court of Appeals has ruled.

As a result, the Court of Appeals in Donakowski v Reddie (Docket No. 344637) vacated the trial court’s order granting the mother’s change of domicile motion and remanded the case for consideration of whether there was an established custodial environment.

According to the Court of Appeals, even though the trial court properly considered the Child Custody Act factors, specifically MCL 722.31(4), after finding these factors weighed in favor of the mother’s requested domicile change the trial court failed to undertake the remaining steps in the required analysis.

“The trial court did not articulate its analysis or conclusion regarding whether an established custodial environment existed,” the Court of Appeals wrote. “Therefore, the trial court committed clear legal error.”

In addition, the Court of Appeals held the trial court correctly denied the father’s counter-motion to change physical custody without holding an evidentiary hearing or considering the statutory best interest factors because the father did not show proper cause or a change in circumstances. 

Request To Relocate

The plaintiff-mother and the defendant-father have one child together. When the parties divorced, the trial court awarded the plaintiff primary physical custody and joint legal custody along with the defendant. Among other things, the divorce judgment stated that neither parent was permitted to move more than 100 miles from the other parent.

In January 2017, the trial court entered a stipulation and order that the parenting-time schedule was to be as agreed upon by the parties. The defendant exercised parenting time on alternate weekends and had alternate mid-week visits.

The plaintiff remarried in July 2017. In September 2017, she filed a motion for a change of domicile because her new husband had obtained employment with the Sault Ste. Marie Police Department. In her motion, the plaintiff indicated that she wanted to move herself and the child to Sault Ste. Marie to be with her husband, to attend classes at Lake Superior State University and to allow the child to experience the city’s cultural diversity and academic opportunities.

The defendant opposed the motion and filed a counter-motion seeking to change the child’s physical custody. He asserted the move should not be permitted but if the trial court did allow it, he should have physical custody because the move constituted a change of circumstances.

A hearing was held on both motions. The trial court granted the plaintiff’s motion to change domicile and denied the defendant’s motion to change custody.

The defendant appealed.

Mother’s Motion To Change Domicile

On appeal, the defendant claimed the trial court erred when it failed to consider whether a custodial environment existed and, if so, whether the plaintiff’s proposed move to Sault Ste. Marie would modify or alter this custodial environment.

“We agree,” the Court of Appeals said.

In its analysis, the Court of Appeals examined the Child Custody Act. The Court noted that MCL 722.31(1) says in part: “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.”

The Court of Appeals pointed out that it has previously set forth the steps that must be undertaken when deciding a motion to change domicile. Those steps are:

  • Determine whether the moving party has established by a preponderance of the evidence that the factors in MCL 722.31(4), also known as the D’Onofrio factors, support a motion for a change of domicile. (See, D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976).)
  • If the factors support a change in domicile, then determine whether an established custodial environment exists.
  • If an established custodial environment exists, then determine whether the change of domicile would modify or alter that established custodial environment.
  • If, and only if, a change of domicile would modify or alter the established custodial environment, then the trial court must determine whether the change in domicile would be in the child’s best interests by considering whether the best interest factors in MCL 722.23 have been established by clear and convincing evidence.

“In other words, the trial court must consider the five factors articulated in MCL 722.31(4), and after determining that the plaintiff established that the factors weigh in favor of a domicile change, the trial court must determine whether an established custodial environment exists,” the Court of Appeals observed. “If so, then the trial court must determine whether the domicile change would modify or alter the established custodial environment.”

In this case, the trial court considered the MCL 722.31(4) factors, the Court of Appeals noted. “However, after concluding that the factors weighed in favor of the proposed domicile change, the trial court ended its analysis without undertaking the remaining steps in the required analysis. The trial court did not articulate its analysis or conclusion regarding whether an established custodial environment existed. Therefore, the trial court committed clear legal error.”

Further, the Court of Appeals said the record was insufficient for it to determine de novo whether an established custodial environment existed. “Moreover, even if we were to hold otherwise, we believe that the record is also insufficient to determine whether plaintiff’s move would modify or alter any established custodial environment with defendant.”

Therefore, on remand, “the trial court must make additional findings to determine the established custodial environment,” the Court of Appeals held.

Father’s Motion For Custody Change

The defendant also argued on appeal that the trial court erroneously denied his motion to change physical custody without considering the statutory best interest factors.

“We disagree because the trial court determined that there was no proper cause or change of circumstances,” the Court of Appeals said.

According to the Court of Appeals, under MCL 722.27(1)(c), a trial court may amend prior judgments or orders for proper cause shown or because of a change in circumstances when clear and convincing evidence shows the modification would be in the child’s best interests. “When a party seeks a change in custody or proposed change in the previous judgment, the party must first show by a preponderance of the evidence that either proper cause or change of circumstances has occurred to warrant the change.”

Here, the trial court held the defendant did not establish proper cause or change of circumstances, the Court of Appeals pointed out. “The trial court, therefore, had no obligation to consider the best interest factors.”

Further, although the defendant claimed he was entitled to an evidentiary hearing, “a trial court is not required to hold an evidentiary hearing on whether there is proper cause or a change of circumstances,” the Court of Appeals emphasized.

“We vacate the trial court’s judgment regarding plaintiff’s motion, affirm the trial court’s judgment regarding defendant’s motion, and remand for proceedings consistent with this opinion,” the Court of Appeals concluded

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