Michigan Court of Appeals Holds Lack Of Established Custodial Environment Analysis Is Error

On December 18th, 2014, the Michigan Court of Appeals held in a child custody case that the trial court committed error by failing to analyze whether a mother's move from Michigan to Florida would change her minor child's established custodial environment. The Court stated that if the trial court had engaged in an analysis of whether such an out-of-state move would have changed the established custodial environment, then the Child Custody Act would have required the trial court to further analyze whether clear and convincing evidence existed that such a move would be in the minor child's best interests. The trial court's failure to perform either inquiry was error. The Court also reversed the trial court's award of attorney fees to defendant-mother regarding a motion.

In Sulaica v. Rometty, Docket Nos. 321275 and 322760, the Michigan Court of Appeals addressed the issue of whether changing a minor child's domicile from Michigan to Florida constituted a change to the established custodial environment. 

The Court first recited the facts of the case:

These appeals arise from orders concerning the domicile, custody, and parenting time of the parties’ minor child. The parties were never married. They resided together for the first one and one-half years of their child’s life.

In October 2002, plaintiff filed a complaint for custody, which ultimately led to a December 9, 2003 consent judgment specifying custody, parenting time, and support. That consent judgment granted defendant sole legal custody and both parties joint physical custody of the child. Defendant’s residence was named the “primary residence . . . for school purposes.” The parties were both Michigan residents at the time. The consent judgment specified weekly parenting time for plaintiff, including alternate weekends, midweek overnights, and some holidays. The consent judgment further provided that “neither party may permanently move the minor child of the parties from the State of Michigan without the prior written consent and approval of the other party or without first obtaining the approval of the Court. . . .”

On February 5, 2014, defendant filed a motion to change the child’s domicile to Florida. Defendant emphasized that she had sole legal custody and provided the child’s primary
residence. Defendant also argued that plaintiff had “an extensive criminal history including felony convictions, as well as assaultive behavior toward [defendant], some of his children and previous girlfriends.” Defendant claimed that she was the child’s primary caregiver and had been offered more secure employment in Florida as a sonographer, which would pay her $75,000, annually ($31,000 more than she made in her present position in Michigan). Defendant stated that she had located suitable schooling for the child and that she would continue to encourage a relationship between plaintiff and the child. Defendant argued that because she was the sole legal custodian, it was unnecessary to analyze the best interests factors set forth in MCL 722.31(4) . . .

On February 26, 2014, the trial court held a second hearing on defendant’s motion to change domicile. The CPS investigation into defendant’s husband was complete with the allegations unsubstantiated. The trial court stated that it had reviewed defendant’s motion to change domicile as well as plaintiff’s motion to change custody and parenting time and closely reviewed the case file. The trial court took testimony from defendant regarding the new job that she intended to take in Florida and her increased salary and job stability. The trial court stated that it found defendant’s testimony credible and ruled: “it’s appropriate in light of the fact that [defendant] has sole legal custody for the Court to allow this move, to her permission to do that.” The trial court also denied plaintiff’s motions regarding parenting time and joint legal custody and referred the issue of parenting time to the Friend of the Court for analysis and a recommendation. The trial court stated its belief that plaintiff was “playing games” in connection with his filing of his motions and ordered plaintiff to pay defendant $1,000 in attorney fees. The trial court denied plaintiff’s subsequent motion for reconsideration . . .

The Court's analysis of whether the trial court committed error in failing to analyze whether the mother's move to Florida constituted a change to the established custodial environment followed:

On appeal, plaintiff first argues that the child had an established custodial environment with both parents and defendant was obligated to show proper cause or a change of circumstances that established that the modification of the environment via the move to Florida was in the child’s best interests. This Court agrees that the trial court focused too narrowly on whether the 100-mile rule, MCL 722.31, applied and failed to analyze the requested move in the context of whether it constituted a change to an established custodial environment, which would warrant closer scrutiny . . .

Therefore, the question is whether changing the child’s domicile to Florida constituted a change in an established custodial environment warranting the scrutiny required under MCL 722.27(1)(c). The trial court should have analyzed this question. It is true that Brecht, Brausch, and Spires, held that, when the party seeking to change domicile has sole legal custody, the trial court has discretion to decide the change in domicile without considering the factors set forth in MCL 722.31(4). Brecht, 297 Mich App at 743; Brausch, 283 Mich App at 352-353; Spires, 276 Mich App at 438-439. A plain reading of MCL 722.31(2) requires that conclusion. But none of those cases involved parties with joint physical custody. See Brecht, 297 Mich App at 734, Brausch, 283 Mich App at 342-343, and Spires, 276 Mich App at 434 (in each, the party who sought to change domicile had sole legal and physical custody). The absence of joint physical custody is an important distinction, which the panel in Spires recognized when it cited to Brown . . .

Based on the record before us, we are unable to conclude that the error was harmless and we remand with instruction that the trial court examine the question of whether an established custodial environment existed. We find that the four-step process outlined in Rains, 301 Mich App at 325, is applicable and instructive in this instance, save for the first step which deals with the factors set forth in MCL 722.31(4), as defendant in this case was not required to satisfy those factors. That process provides:

First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), the so-called D’Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. [Id.]

Here, insofar as the trial court finds an established custodial environment with plaintiff, the trial court should further consider whether defendant’s move to Florida represented a change to that environment. In the event that the move is found to constitute a change to an established custodial environment, MCL 722.27(1)(c) would compel defendant to demonstrate clear and convincing evidence that the move was in the child’s best interests with careful analysis of the factors set forth in MCL 722.23 . . .