Custody
 
Kelly v. Sholander, unpublished per curiam opinion of the Court of Appeals, issued October 1, 2024 (Docket No. 367943), Marquette County
 
Mother and Father were awarded joint legal custody of their minor children. Mother sought to change the children’s domicile to Atlantic Mine, Michigan, where her fiancé (now husband) resided. The trial court conducted a brief hearing during which it only considered Mother’s evidence and denied the request, citing the contentious relationship between the parties.
 
“[T]he 100-mile rule limitation imposed by MCL 722.31(1) refers to ‘radial’ or straight-line miles, rather than ‘road’ or driving miles.” Bowers v VanderMeulen-Bowers, 278 Mich App 287, 294; 750 NW2d 597 (2008). During the hearing, Mother testified that Atlantic Mine was approximately 115 miles from Marquette by road. In her appellate brief, she stated that the straight-line distance was approximately 66 miles. The Court of Appeals remanded the case to the trial court to determine whether the “100-mile rule” under MCL 722.31(1) was triggered in this case.
 
If a proposed move implicates the 100-mile rule of MCL 722.31(1), a trial court deciding whether to allow the move must consider the factors set forth in MCL 722.31(4): 
 
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
 
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
 
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
 
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
 
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
 
Regarding Factor (a), the Court of Appeals found that the trial court misapplied this factor by overemphasizing the issues in the parties’ relationship and the strain the increased distance would cause.
 
The Court of Appeals vacated the trial court’s order and remanded the matter for further proceedings.

Custody
 
Carneiro v. Carneiro, unpublished per curiam opinion of the Court of Appeals, issued July 18, 2024 (Docket No. 366974, 367645, 368672). Ingham County
 
After the parties were married in Brazil, they relocated to Michigan where Father studied at Michigan State.  Father’s studies were paid for by the Brazilian government with the understanding that he would return to Brazil to work.  Father’s failure to return would result in repayments back to the Brazilian government.  Father filed for divorce after discovering Mother was having an affair.  After the divorce action was filed, the parties had exercised equal parenting time with the minor child except during the periods where Mother accused Father of abuse which resulted in him not having parenting time with the child.   Father argued that Mother falsified claims of domestic violence in order to remain in the United States under a program which permitted survivors of domestic violence to remain in the United States.  The trial court found that the minor child had an established custodial environment with both Mother and Father, awarded the parties joint legal custody, and found that the minor child would attend school in Brazil with Mother having substantial parenting time.   
 
On appeal, Mother first contends that the minor child had an established custodial environment with her - despite the fact that the trial court applied the clear and convincing evidence standard because of Father’s request to change the child’s domicile.  Mother contended that a finding that the child had an established custodial environment with her alone would have changed the trial court’s findings under the best interest factors, but the Court of Appeals rejected this argument as having no basis in the law.  

Custody
 
Mikhaylov v. Steele III, unpublished per curiam opinion of the Court of Appeals, issued February 15, 2024 (Docket No. 367325). Oakland County
 
Following their divorce, Mother and Father shared legal and physical custody of the minor children.  Mother relocated to Austin, Texas and the parties agreed that the minor children would remain in school in Bloomfield Hills from 2021 - 2023.  Mother would exercise parenting time in both Michigan and Texas.  The parties’ consent judgment further provided that, after the two (2) year period, the children would relocate to Texas and attend school there.  Father was also planning on moving to Texas.  The parties’ judgment, in incorporating these terms, included a provision which read as follows: 
 
"If [defendant] should petition this Court for the children to remain in Michigan following the 2022-2023 school year on the basis that they are adjusted and/or are doing well academically and/or emotionally, this shall not be considered a change in circumstance or proper cause.  Furthermore, if [defendant] should petition the Court to modify the parties’ agreement as previously stated, the Court should consider granting sole physical custody to [plaintiff] and otherwise enforcing this Agreement as written."
 
The judge who entered the consent judgment left the family bench and the case was subsequently assigned to his successor.  In 2023, Father sought to modify the judgment and for the children to continue to remain in Michigan and continue at their schools. Following an evidentiary hearing, the trial court granted Father’s motion.  Mother was to continue exercising parenting time as she had done from 2021-2023.  
 
The trial court denied Mother’s motion for a stay pending appeal.  The Court of Appeals also denied the stay, but the Michigan Supreme Court granted Mother’s request for a stay.  During the pendency of the appeal before the Michigan Court of Appeals, the children were residing in and attending school in Texas.  

Custody
 
Barretta v. Zhitkov, _____ Mich App _____, ______ NW2d ______, 2023, (Docket No. 364921, 365078). Oakland County
 
Mother and Father have one minor child.  Pursuant to the parties’ 2016 judgment, they were awarded joint legal and joint physical custody of the minor child with a week-on/week-off parenting time schedule. The parties had a contentious post-judgment co-parenting relationship and in 2022 a guardian ad-litem (“GAL”) was appointed.  

• December 15, 2022: Father petitioned to immediately suspend Mother’s parenting time alleging that the minor child was suffering from mental health issues, that Mother was failing to take the child to appointments to address the mental health issues, that Mother was seeking to alienate the minor child from Father and that Mother was trying to convince the minor child to fabricate sexual assault allegations. 
• December 16, 2022: Trial court entered order temporarily suspending Mother’s parenting time.  Mother immediately moved to have this order set aside. 
• December 19, 2022: Trial court denied Mother’s request and continued with her suspended parenting time.  The minor child was placed with Father and admitted to a psychiatric hospital.  
• December 21, 2022: Referee met with the parties and appeared before the trial court.  GAL recommended that Mother’s parenting time be suspended but did not provide an explanation why this was required.  
• January 11, 2023: Trial court entered an order that referred the matter to the Friend of Court for a referee hearing, Mother’s parenting time was to be limited and supervised.  
• January 12, 2023: Mother petitioned to have Father’s parenting time suspended alleging that the child suffered from a mental health episode while under Father’s care.  Father responded that the child suffered this episode after Mother defied the court’s order and had contact with the minor child.  
• January 13, 2023: Trial court entered an order that denied Mother’s request to lift supervision on an emergency basis, re-suspended Mother’s parenting time pending further hearing.  
• January 18, 2023: Trial court heard oral arguments including statements from the GAL and medical professionals that the child’s mental health improved after Mother’s parenting time was suspended.   The trial court entered an order that continued with the suspension of Mother’s parenting time and further ruling that an evidentiary hearing was not yet necessary as a change in custody had not yet occurred.  Instead, a review hearing with the referee was scheduled.  The trial court was reminded that a hearing had already been scheduled with the Friend of the Court referee.  
• January 23, 2023: Trial court entered an order that continued with the suspension of Mother’s parenting time and set the matter for an FOC referee hearing 5-6 weeks later. 

The Court of Appeals ruled that the trial court erred by not first holding an evidentiary hearing before changing custody.  While the orders were titled as “temporary,” the Court of Appeals found that these orders had the practical effect of modifying Mother’s custody and parenting time.  The trial court also failed to make findings as to change in circumstance/proper cause, the established custodial environment, or best interest findings.  

Smith v Rotterdam​, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022 (Docket No. 357940)

​Dueling post-judgment motions to modify custody. The trial court found that the minor child had an established custodial environment with both parties, applied the clear and convincing standard, and found that four (4) best interest factors favored Father while none favored Mother and granted Father’s motion to sole physical custody. Mother appealed the finding that the minor child had an established custodial environment with both parents, but the Court of Appeals rejected (and was seemingly confused) by this argument since the trial court applied the higher clear and convincing standard. Second, while the trial court did not find either a change in circumstance or proper cause, it was not necessary for them to do so since the parties were seeking to modify a temporary order. The Court opined,