Boyfriend's Background Check Refusal Causes Child Custody Modification

In this modern day, it is very important to know with whom your children are associating.  Danger lurks everywhere, including in the home next door, down the street, across town, or across the country.

Earlier this week, the Michigan Court of Appeals issued an opinion for publication [meaning that it now binds all lower courts] in a case from the Newago County Family Court.  The case, Mitchell v Mitchell, holds that a Mother's refusal to abide by a family court's ruling to provide a background check on her live-in boyfriend is "just cause" to modify custody.

In Mitchell, the parents divorced and Mother eventually moved to Texas.  Apparently, Mom's boyfriend was instrumental in the all-too-common process of alienation directed at the non-relocating parent.  Mom did not fire-up the Skype and botched a few Texas to Michigan trips, as ordered by the family court at the time it granted leave for the relocation.

Most importantly, however, Mom and her boyfriend refused to provide the court-ordered background check.  This proved fatal to her custody case and now, Dad has the kids.  What a mess.

From time to time, our law firm gets cases where one parent, in moving on to other relationships, exhibits risky behavior relative to the selection of his or her live-in partner.  In such cases, what can the other parent do; just sit back and wait for the damage to be done?

Now, thanks to the published Mitchell decision, one safeguard that can be requested is for the family court to order a background check of the individual.  If used properly, this device will provide some information that would otherwise be unavailable.

A competing concern is, of course, the privacy of the individual.  This ruling can, and no doubt will, be used offensively and improperly as often as it is used in the fashion intended by the 3-judge panel of the Michigan Court of Appeals.

All we here at the Law Blogger can say about that is: is he or she really worth it?  Best to err on the side of caution for the safety of the children.

In our practice, we routinely counsel clients to take it slow when it comes to introducing young children to the new "significant other".  Divorce is unsettling enough; the new person is most often seen by the kids, even when nice, as a threat.  They may repress their anxiety in order to gain approval from the relocating parent.

What a mess we can make right in our own kitchens.

The best defense to all of this is to exercise good judgment and to err on the side of putting the kids first; something that Kate Mitchell was found not to have done.  In so doing, she has unwittingly handed us family law attorneys a defensive weapon which can be wielded in the protection of the children.

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Court of Appeals Decides Another Relocation Case

One of the most significant (and often painful) events in divorce proceedings is when a parent seeks a change of domicile; a relocation of the children beyond the 100-miles allowed by the Legislature in the Child Custody Act. These motions often result in hearings that can be more traumatic to the parties and children than a full-blown divorce trial.

The losing parent often appeals the result thus, the Michigan Court of Appeals issues a steady diet of relocation decisions. The most recent is the case of Skeins -v- Mead and can be read in its entirety by clicking on the following link:

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20090317_C287426_49_287426.OPN.PDF

In that case, the parents shared joint physical custody of their child and exercised an alternating weekly parenting schedule. The evidence from the trial court in Crawford County was that each parent exercised their respective parenting time. The domicile issue arose, however, when the Mother re-married and her new husband located a better-paying job in Texas. The Mother claimed she too had employment prospects in Texas.

The Father in this case is employed by the Michigan National Guard. The evidence demonstrated he was a good father, engaged in the proper rearing and discipline of the child.

The Crawford Circuit Court nevertheless found that an "established custodial environment" existed with the Mother only, and granted her motion based on a finding that she satisfied the critical factors of the domicile statute by a "preponderance" of the evidence. The Father appealed the trial court's decision.

In reversing the lower court and remanding the case for an additional hearing, the Court of Appeals, recognizing the difficult economic times faced by all Michiganders, held that the lower court erred by failing to apply the "clear and convincing" evidentiary standard to not only the domicile statute factors, but to all the "best interest" factors set forth in the much broader Child Custody Act. The Court of Appeals also held that the lower court erred by concluding that an "established custodial environment" existed only with the Mother. An established custodial environment is a legal term defined by the court to mean:

if over an appreciable period of 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 the permanency of the relationship shall also be considered.

Since the case is "unpublished", it does not have binding effect on local family courts faced with similar fact-scenarios. This case does, however, offer a solid guide for a parent opposing a relocation motion.