DETROIT — A divorced father had to get court approval or his ex-wife’s consent to relocate to a new home because, even though he moved less than 100 miles, the new home was more than 100 miles from his children’s legal residence when the divorce action was filed, the Michigan Court of Appeals has decided.
The trial court ruled that MCL 722.31 did not apply because the defendant father’s most recent move was less than 100 miles from his previous residence.
In doing so, the trial court ignored the plain language of MCL 722.31, which focuses on the number of miles a party moves from the children’s original legal residence, the Court of Appeals ruled in Eickelberg v. Eickelberg (MiLW No. 07-88219, 4 pages), a published per curiam opinion.
As a result, when the plaintiff mother objected to the move, the appeals court said, the trial court should have evaluated the defendant’s move under the factors listed in the statute.
Judges Jane M. Beckering, Kathleen Jansen and Mark T. Boonstra were on the panel.
When Meggan and Ethan Eickelberg divorced in 2010, they lived in Clinton Township with their three children. They were awarded joint legal custody. Meggan, the plaintiff, was awarded physical custody.
After the divorce, Ethan, the defendant, moved to Perry, Michigan, about 86 miles away from the Clinton Township home. Later, he moved to Marshall, Michigan, which is fewer than 100 miles from Perry but 126 miles from Clinton Township.
To help the parties resolve their communication difficulties involving the children, Macomb Circuit Judge Kathryn A. George appointed a parenting coordinator. The plaintiff later moved to terminate the parenting coordinator and alleged that the defendant’s recent move to Marshall violated MCL 722.31.
The defendant responded with a motion to modify his parenting time and to obtain a more convenient location to exchange the children. He also sought to eliminate a midweek exchange and instead be awarded extra parenting time during the summer.
George turned aside the plaintiff’s arguments that the defendant’s move to Marshall violated the statute. George then granted the defendant’s motion to modify his parenting time and to change the exchange location. The judge also retained the parenting coordinator, awarded the defendant makeup parenting time and ordered that the parties communicate in writing.
The plaintiff appealed.
“[T]he appropriate residence on which to focus when applying the 100-mile rule is ‘the child’s legal residence at the time of the commencement of the action in which the order [governing custody] is issued,’” the Eickelberg panel said, quoting and emphasizing the statute.
“That a parent may have subsequently relocated a child’s legal residence after the issuance of the order governing custody does not change the residence that is the focus of the 100-mile rule.”
The panel said that because Marshal was more than 100 miles from Clinton Township, “defendant was required to seek court approval, or plaintiff’s consent, before making the move. …
“Here, where plaintiff did not grant approval, the circuit court should have evaluated defendant’s move using the factors set forth in MCL 722.31(4).”
And when a move requires modifying parenting time and results in changing the children’s custodial environment, a court must consider the best-interest factors in MCL 722.23 to determine whether the moving party has provided clear and convincing evidence that the change is in the children’s best interests, the panel explained.
The appeals panel vacated the trial court’s opinion and orders. The panel said that on remand, the trial court must consider the matter within the framework contained in Rains v. Rains, 301 Mich. App. 313 (2013).
Under Rains, the court must consider whether a change of domicile is warranted, and if so, whether there is an established custodial environment. If there is, the court must determine whether a changed domicile would modify the custodial environment.
If the custodial environment would be changed, then the court must consider whether the change would be in the children’s best interests by determining whether the best-interest factors have been established by clear and convincing evidence.
This story is by Ed Wesoloski of Michigan Lawyers Weekly, a sister publication of The Daily Record, and was moved by Dolan Media Newswires.