When Father is Relegated to the Weekend Parent

By: Timothy P. Flynn

A case that caught our attention from the Michigan Court of Appeals last month deserves mention in this blog.  The case comes from the St. Clair County's Family Court; the family court judge that ruled in Mother's favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.

In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child's week-on-week-off parenting schedule, allowing Mother to move with the child from Bay City to Troy.  The parenting schedule was modified so that Mother had the child during the school year and Father had evey-other-weekend.

In doing so, the family court judge was in part swayed by Mother's testimony that the move allowed her to be a "stay-at-home" mom due to her husband's new job.  The effect of the ruling was to relegate Father to a weekend parent.

Even though the move was not more than 100-miles [a statutory threshold], the family court held that it was significant because it involved a change in school districts for the child, and made the alternating weekly parenting schedule untenable.  The lower court concluded the proposed move was in the child's best interests, and Dad lost out.

In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear and convincing evidence]; and b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.

The burden of proof is significant in cases like this.  Mother's motion, if decided on a preponderance standard, is easier to establish and thus prevail.  If Mother had the heightened burden, the motion is more difficult to carry.

As for lying to the court about her job, that too should be taken into account.  On remand, however, the Court of Appeals noted that the lower court should also take into account the fact that the child was allowed to continue living with her Mother in Troy during the year this case took to decide on appeal.

Custody of our children, much like the possession of chattel, seems to be driven by the age-old principle: possession is nine tenths of the law.

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2009 Michigan Child Custody Update

This post summarizes some of the more interesting 2009 family law decisions from the Michigan Court of Appeals dealing with child custody.

In 2009, the Court of Appeals looked at the interplay between the juvenile code and the child custody act in two important cases.  The first case discussed was published and thus binding precedent; the second case is unpublished and does not bind subsequent courts in Michigan.

In a case from Wayne County, In the Matter of A.P., Mother had sole custody of her child from a paternity action.  She was accused of abusing the child.  The resulting juvenile proceedings re-introduced the child’s biological father into the child’s life.  In the lengthily proceedings, the juvenile court’s rulings intersected and conflicted with prior orders from the family court.

The Court of Appeals held that the juvenile court supersedes the family court:

Once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect. 

 DHS v Gunther is significant as it also addresses jurisdiction via the juvenile code over children that are already under the jurisdiction of the family court.  In this case, Mother had “physical custody” of the parties’ children resulting from a divorce judgment.

The Gunther children came to the attention of DHS due to school truancy allegations resulting in temporary placement of the children with their father.  Mother moved for their immediate return, asserting that the juvenile court referee could not alter the children’s “established custodial environment” without first conducting a hearing, as required by the Child Custody Act.

Again, the Court of Appeals held that once a juvenile court assumes jurisdiction over a minor pursuant to the juvenile code, the juvenile court’s orders supersede all other previous orders; including those issued from a family court.

In Pobanz v Pobanz, the Court of Appeals decided the issue of whether a 17-year old could be court-ordered to participate in parenting time within the context of a custody challenge.  As in the two other cases discussed in this post, Pobanz also featured a co-occurring neglect petition in the juvenile court. 

The trial court stated that it would not force a 17-year to participate in parenting time when she stated that she did not want to see her Father.  Although the Pobanz panel agreed with the trial court that a seventeen year old’s reasonable custody preference is given wide-deference, it held that the lower court erred by not conducting an evidentiary hearing to determine whether the many other statutory factors supported the decision.  The case was sent back to the Huron County Family Court to conduct the hearing.

Surprisingly, the Court of Appeals allowed the trial court to change judges based on the subsequent juvenile case.  The family court judge was first assigned to the Pobanz family in the divorce proceedings, but the trial court transferred the divorce, and Father’s custody motion, to the judge presiding over the subsequent juvenile proceedings.

This ruling is interesting in that it seems to violate the “one family, one judge” concept set forth in 1996 with the creation of the family courts across the state.  According to the reorganization statute, multiple cases involving the same family were all to be assigned to the first judge in the county assigned to that family.

In Bonner v Bonner, the Court of Appeals decided the issue of whether a child could be compelled to testify at hearing on his parents’ competing change of custody motions.  The case featured the open-court testimony of the parties’ minor child, limited to matters of alleged abuse by the Mother.

The case is most interesting for featuring the testimony of a well-respected psychologist that had observed the parties and child at the court hearing(s).  The psychologist then provided testimony to the family court as to his observations of both parents and the child.  Note: The family court judge did not find the child’s testimony about the conditions of his Mother’s home to be credible.

Also, the case is significant in that a child was compelled to testify in order to satisfy his parents’ right to due process.  Unlike in camera testimony of children called into a judge’s chambers to express their custodial preference under seal, this case featured the open-court testimony of a son against his own Mother.

Next, the Court of Appeals, in Roguska v Roguska, examined whether a family court could reject a settlement agreement on custody reached at court-ordered mediation by both parties and their respective attorneys.  In that case, the Mother subsequently attested that her husband lied during mediation, that she and her husband had serious communication problems, and that she subsequently obtained a PPO against the husband.

The Roguska panel held that such facts freed the family court from having to follow the settlement agreement on the custody issue.  In cases of domestic violence, arbitration and mediation are allowed, but disfavored due to the coercion that can sometimes be brought to bear against the victim of abuse.

The case of Hoeve v Hoeve continues the series of Court of Appeals decisions holding that the parents' school-district decision may be, by itself, proper cause to change custody.  In Hoeve, the pre-school child spent week-on-week-off with mom and dad.  Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten.

The parents lived about 70-miles apart.  Father's motion to acquire sole physical custody succeeded at trial and was affirmed on appeal.

According to family law appellate attorney Scott Bassett, the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

This is a summary of what came out of the Court of Appeals on matters of custody in 2009.  Many other decisions addressed the important issues of domicile and parenting time which will be addressed in future posts.

Only time will tell what 2010 will bring.

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