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Trial Court Must Re-Examine Request To Change Child’s School

Posted on Wednesday, September 23, 2020

A mother’s request to change the school of the parties’ minor child was wrongly denied because the trial judge 1) did not interview the child about his school preference and 2) failed to consider several of the best-interest factors in MCL 722.23, the Michigan Court of Appeals has ruled.

The parties in Hanshue v Hanshue (Docket No. 350658) were divorced and had one child together. The mother asked the Montcalm County Circuit Court to change the child’s school placement. Although it was determined the 10 year old had an established custodial environment with both parties and that changing his school would not modify this, the trial judge held that changing schools was not in the child’s best interests based on his emotional and mental health, and the stability and consistency of his existing school environment.

The Court of Appeals reversed, finding the trial court committed clear legal error when examining MCL 722.23 and applying best-interest factors (f), (g), (i) and (k). Those factors are:

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

“Although the trial court was not required to interview the child, the trial court plainly erred by relying on the parties’ opinions of the child’s preference, rather than determining whether the child had the capacity to form a preference, what school placement the child preferred, and whether that preference was reasonable,” the Court of Appeals wrote.

The trial court “clearly erred in its evaluation of best-interest factor (i) and by failing to consider best-interest factors (f), (g), and (k),” the Court of Appeals said. “The trial court’s clear legal errors … require remand.”

Judges Stephen L. Borrello, David H. Sawyer and Deborah A. Servitto were on the panel that issued the unpublished opinion.

Background

The parties divorced in 2017 and had joint legal and physical custody of their son. The child had academic difficulties and received counseling for generalized anxiety and adjustment disorder, and had been diagnosed with attention-deficit hyperactivity disorder (ADHD).

The plaintiff-mother filed a motion to change the child’s school placement from Montabella public schools to either Rockford public schools or Greenville public schools. She claimed it was in the child’s best interests to attend those schools based on the academic performance of those schools and the resources and interventions that were available to meet the child’s needs.

The defendant-father, however, opposed changing schools. He believed the risk to the child’s mental health as a result of the change did not outweigh the potential opportunities and advantages of changing schools.

At a hearing before the referee, the plaintiff’s motion to change schools was denied. The plaintiff filed an objection to the referee’s recommendation and order, and requested a hearing before the trial court. At the court hearing, the trial judge denied the plaintiff’s request to change the child’s school. The judge ruled, however, that either party could move to change the child’s school placement after the child’s upcoming (4th grade) 2018-2019 school year.

After the child’s 4th grade school year, the plaintiff refiled her objection to the referee’s recommendation and order, and requested another hearing before the trial court. The trial court held a hearing and ruled that the child had an established custodial environment with both parties and that changing the child’s school would not modify the established custodial environments. However, the trial court ultimately held that changing schools was not in the child’s best interests because of the child’s emotional and mental health, and the stability and consistency of his school environment.

The plaintiff appealed.

Reversible Errors

The plaintiff’s first argument on appeal was that the trial court committed reversible error by not interviewing the child regarding his school preference.

“We agree,” the Court of Appeals said, noting MCL 722.23(i) says the court must consider “[t]he reasonable preference of the child, if the court considers the child to be of sufficient age to express preference” when examining the best interests of a child.

Here, the child was 10 years old at the time and was presumably old enough to form a reasonable preference, the Court of Appeals observed. “Although there was testimony that the child was diagnosed with adjustment disorder and ADHD, there was no indication that his capacity to form a preference was compromised by infirmity, disability, or any other circumstance. … Therefore, the child presumably had the capacity and was of sufficient age to form a reasonable preference regarding his school placement.”

According to the Court of Appeals, the trial court did not determine whether the child was of sufficient age and capacity to form a preference and also did not interview the child regarding his preference. “The trial court did not discuss the referee’s findings or otherwise discuss the child’s interview with a Friend of the Court deputy that occurred during the proceedings before the referee. Rather, the trial court only considered the parties’ testimony during the de novo hearing that they believed the child would express a preference to remain at Montabella.”

In addition, “the trial court did not determine whether the child’s preference to remain at Montabella was reasonable or whether it was influenced by a parent or outside factors,” the Court of Appeals wrote. “Although the trial court was not required to interview the child, the trial court plainly erred by relying on the parties’ opinions of the child’s preference, rather than determining whether the child had the capacity to form a preference, what school placement the child preferred, and whether that preference was reasonable.”

Next, the plaintiff argued that the trial court erred by not considering several best-interest factors at all. “We agree with plaintiff …,” the Court of Appeals said.

The trial court did not make any factual findings regarding factor (f) – the moral fitness of the parties, the Court of Appeals noted. “There was no evidence that the parties were not fit as parents. However, there were not sufficient remarks by the trial court or support from the lower court record to discern the trial court’s findings regarding best-interest factor (f), or whether the trial court deemed best-interest factor (f) irrelevant, and to facilitate appellate review. Therefore, this error requires reversal.”

The trial court also did not make any factual findings regarding factor (g) – the parties’ mental and physical health, the Court of Appeals explained. “[T]here were not sufficient remarks by the trial court or support from the lower court record to discern the trial court’s findings regarding best-interest factor (g), or whether the trial court deemed best-interest factor (g) irrelevant, and to facilitate appellate review. Therefore, this error requires reversal.”

Turning again to factor (i) – the child’s reasonable preference – the Court of Appeals reiterated that the trial court did not interview the child about his preferred school. Instead, the trial court held that the parties agreed the child’s preference was to remain at Montabella. “[T]he trial court clearly erred by relying on the parties’ opinion of the child’s preference, rather than assessing the child’s capability to form a preference and the child’s actual stated preference. Although the trial court’s findings regarding best-interest factor (i) were not against the great weight of the evidence that was presented during the … hearing, the trial court’s clear legal error regarding this factor requires remand.”

Further, the trial court did not make any factual findings regarding factor (k), which addresses domestic violence, the Court of Appeals observed. “There was no evidence in the lower court record to support that there was an act of domestic violence between the parties or that the child observed an act of domestic violence. However, there were not sufficient remarks by the trial court or support from the lower court record to discern the trial court’s findings regarding best-interest factor (k), or whether the trial court deemed best-interest factor (k) irrelevant, and to facilitate appellate review. Therefore, this error requires reversal.”

Based on the foregoing, the trial court clearly erred in its evaluation of best-interest factor (i) and by not considering best-interest factors (f), (g) and (k), the Court of Appeals held, reversing and remanding the case for further consideration of these factors.

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