Name change order remanded to review child’s best interests

DETROIT, MI — Where a plaintiff mother has challenged the trial court orders awarding the defendant father parenting time and changing the minor child’s last name, a remand is necessary for the trial court to consider the child’s best interests specifically in addressing the defendant’s request to change the child’s surname and to evaluate whether a power of attorney is required during the defendant’s out-of-state parenting time.

“In an appeal by right, plaintiff-appellant/cross-appellee, Christina Francesca Repp, challenges the trial court’s: (1) award of parenting time to defendant-appellee/cross-appellant, Adam Joseph Repp; and (2) decision to change the minor child’s last name. In a cross-appeal, defendant argues that the trial court erred by failing to award joint legal custody and physical custody and by apportioning most of the travel burden on defendant. We affirm in part, vacate in part, and remand for further proceedings. …

“On appeal, plaintiff argues that the trial court erred by: (1) awarding substantial parenting time to defendant, and (2) changing the child’s last name. We disagree with plaintiff’s first argument, but we agree with her second argument. …

“In this case, the trial court abused its discretion by ordering the child’s surname be changed without determining that it was in the child’s best interests. … As defendant argues, the trial court thoroughly considered the child’s best interests earlier in its decision as it related to custody. Further, after stating its decision that the child’s last name would change, the trial court cited cases that refer to best interests. … The trial court, however, focused on plaintiff’s motivation when naming the child, rather than on the child’s best interests specifically in regard to his name. As defendant notes, one best-interest factor, MCL 722.23(j), addresses the willingness of a parent to facilitate the child’s relationship with the other parent. Although plaintiff’s motivation when naming the child may have been relevant to her willingness to facilitate the child’s relationship with defendant, the trial court did not explain if it found that the name change was in the child’s best interests. Accordingly, on remand, the trial court must address the child’s best interests specifically as to his name. …

“On cross-appeal, defendant argues that the trial court erred by failing to award joint legal custody and physical custody and by apportioning most of the travel burden on defendant. We disagree. …

“… The trial court abused its discretion by granting each party sole legal custody at alternating times. … Defendant cites neither evidence nor any statute that permits changing legal custody between two parents based on parenting-time schedules, especially when the trial court finds that the parents cannot communicate with each other regarding important decisions affecting the child. … Accordingly, we vacate the trial court’s order granting defendant primary legal custody during his respective parenting time in Texas …

“We affirm the trial court’s determinations regarding physical custody, parenting time, and transportation arrangements. We vacate, however, the trial court’s decision regarding the child’s surname. On remand, the trial court should consider the child’s best interests specifically in addressing defendant’s request to change the child’s surname. We also vacate that part of the trial court’s order granting defendant sole legal custody while the child is in his care for parenting time in Texas; on remand, the trial court should evaluate whether a power of attorney is required during defendant’s out-of-state parenting time.”

Repp v. Repp; MiLW No. 08-110774, 9 pages; Michigan Court of Appeals unpublished per curiam; Wallace, J., Letica, J., Feeney, J.; on appeal from Cass Circuit Court; Salvatore Vitale for appellant; Kevin S. Gentry for appellee.