DOMESTIC CASELAW UPDATE

BY RYAN O'NEIL (OAKLAND)

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Kelly v. Sholander, unpublished per curiam opinion of the Court of Appeals, issued October 1, 2024 (Docket No. 367943), Marquette County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.

Singh v. Stinson, unpublished per curiam opinion of the Court of Appeals, issued November 13, 2024 (Docket No. 369802), Livingston County
 
Following their divorce, Mother and Father were awarded joint legal custody of their children, with Mother being granted primary physical custody. The co-parenting relationship deteriorated, and Mother moved for sole legal custody. A referee hearing was held, during which the referee found that the children had an established custodial environment with both Mother and Father. The referee further concluded that Mother demonstrated, by clear and convincing evidence, that awarding her sole legal custody was in the children’s best interests. The trial court adopted the referee’s recommendation, and Father appealed.
 
Trial courts must determine whether joint custody is in a child’s best interests by examining the best-interest factors stated under MCL 722.23, MCL 722.26a(1)(a), and by determining “[w]hether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child,” MCL 722.26a(1)(b). See also Dailey v Kloenhamer, 291 Mich App 660, 667; 811 NW2d 501 (2011).
 
This Court has held, “[i]f two equally capable parents whose . . . relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.” Bofysil, 332 Mich App at 249 (quotation marks and citation omitted). Additionally, when parents have a “deep-seated animosity” and “an irreconcilable divergence in their opinions about how to foster each child’s well-being,” joint custody ceases to be an option. Wright v Wright, 279 Mich App 291, 299-300; 761 NW2d 443 (2008), citing MCL 722.26a(1)(b).
 
In this case, the parties had significant difficulty agreeing on decisions related to the children’s medical care. Evidence showed that Father often failed to respond to Mother’s messages about medical needs, leading to delays in the children receiving necessary care. Both parties expressed negative inferences regarding the other’s approach to feeding the children, prompting Father to photograph and weigh the children at the exchange location to “safeguard” himself against future accusations.
 
Father also filed a complaint with the Attorney Grievance Commission against the parenting time coordinator, which caused the coordinator to withdraw from the case. (The Commission took no action against the coordinator.) Child Protective Services became involved in multiple instances, and Father attempted to have Mother’s new husband deported by contacting Immigration and Customs Enforcement (ICE). During the divorce proceedings, Father placed trackers on Mother’s vehicle.
 
Given this evidence, the trial court found Father’s argument that the parties could successfully co-parent in the future to be not credible.
 
The Court of Appeals affirmed the trial court’s award of sole legal custody to Mother.
 
Arquette v. Carr, unpublished per curiam opinion of the Court of Appeals, issued November 26, 2024 (Docket No. 370691), Iosco County
 
Mother and Father dated, but their relationship ended before the birth of their minor child. Mother relocated to Florida, where the child was born. The parties executed an Acknowledgment of Parentage (AOP) and, shortly after the child’s birth, Mother returned to Michigan. The parties agreed on visitation for Father without court involvement. Eventually, Father exercised overnight parenting time on alternating weekends and every other week during the summer.
 
In 2023, Mother received a job offer in Florida and notified Father of her intention to return to Florida with the minor child. The parties were unable to reach an agreement, and Father filed this action seeking joint legal custody, primary physical custody, and an order of child support. Mother filed a counter-complaint seeking joint legal custody, primary physical custody, and an order to change the child’s domicile to Florida.
 
An evidentiary hearing was held, and the trial court ruled that the minor child had an established custodial environment with both parents. The court further found that Mother was the primary parent and that Father primarily fulfilled a “free-time” role in the child’s life. The court determined that the relocation to Florida would not alter the established custodial environment and examined the best-interest factors under the preponderance of the evidence standard. The court concluded that it was in the child’s best interest for Mother to be awarded primary custody and found that the change of domicile factors also supported relocating the child to Florida. Father appealed.
 
On appeal, Father argued that the trial court erred in applying the preponderance of the evidence standard. A trial court is not required to apply the clear and convincing evidence standard unless the established custodial environment will be altered. “The touchstone of an established custodial environment, however, is the relationship between the parent and child, not simply when or how often a parent exercises his or her parenting time.” The Court of Appeals found that, while Father’s parenting time schedule would change, he did not present any evidence that the minor child’s custodial environment would change as a result of the move.
 
The Court of Appeals affirmed the trial court’s best-interest findings and further upheld the trial court’s conclusions under the change of domicile factors contained in MCL 722.31(4). Father argued that he would no longer be able to exercise weekend parenting time with the minor child as a result of the move. However, while Father’s parenting time would need to be reconfigured, he did not demonstrate that the new schedule would prevent the continuation of a strong relationship between himself and the minor child.
 
The Court of Appeals affirmed the trial court’s custody and change of domicile ruling.

Roberson v. Roberson, unpublished per curiam opinion of the Court of Appeals, issued December 12, 2024 (Docket No. 370304), Midland County.

After filing for divorce, a recommendation was made for the parties to share interim joint legal and physical custody with an equal parenting time schedule, except during periods when Father had to travel for work. In those instances, the minor child would be dropped off at Mother’s home at 5:30 AM and picked up at 6:00 PM. Mother objected to this recommendation, but the parties utilized this schedule during the pendency of the case. Following a trial, the court found that the minor child had an established custodial environment with Mother only. The court awarded the parties joint legal custody, with parenting time as agreed upon by the parties or, absent an agreement, pursuant to the Midland Co-Parenting Plan.

On appeal, Father argued that the minor child had an established custodial environment with both parents. The trial court had found that Mother was the minor child’s primary caregiver since birth, and while Father’s role had expanded after the separation, it did not rise to the level of a parent to whom the child naturally turned. Father also traveled for work and had limited interactions with the minor child.

Father additionally appealed the trial court’s best-interest findings. He argued that the trial court erred in finding that Factor (A) favored Mother. The Court of Appeals affirmed the trial court’s finding, noting that, while Father had “stepped up” his involvement with the minor child since the separation, prior to that, he often chose to spend time with friends or in the garage rather than with the minor child. The trial court also found that Factor (B) favored Mother, as Mother primarily provided for the minor child’s needs due to Father’s extensive work schedule.
The Court of Appeals affirmed the trial court’s ruling.

Simon v. Simon, unpublished per curiam opinion of the Court of Appeals, issued December 17, 2024 (Docket No. 371011), Ionia County

Pursuant to the parties’ Judgment of Divorce, Mother and Father were awarded joint legal and physical custody of their minor children. In 2018, Father was incarcerated, and the parties agreed to a temporary order granting Mother sole legal and physical custody. Subsequently, Mother moved for and was granted sole custody as a “continuing order of the Court/Final Order.” Father was released from prison in 2021 and completed probation in 2023, at which point he moved for joint legal custody.

The referee recommended that the parties equally share parenting time with their son, while Mother retained sole legal and physical custody of their daughters. The referee further recommended that Father have limited parenting time with the daughters and attend therapy. Following a de novo hearing, the trial court adopted the referee’s recommendation, ordering shared custody of the son and granting Father parenting time on alternating Fridays from 5:00 to 7:00 PM. The court also required Father to attend family therapy with the daughters.
On appeal, Father argued that the trial court erred in failing to consider an award of joint legal custody for the daughters. The Court of Appeals determined that both the referee and the trial court failed to assess whether the parties could cooperate and agree on important decisions affecting the general welfare of the children, as required by MCL 722.26a(1)(b). While the trial court made best-interest findings that supported granting Mother sole legal custody, it erred by not addressing the parties' ability to collaborate and reach agreements on matters impacting the children.

The Court of Appeals reversed the trial court’s decision granting Mother sole legal custody of the daughters and remanded the case for further proceedings. The trial court was directed to consider whether the parties could cooperate and reach agreements on issues affecting the daughters’ welfare.

Wagner v. Wagner, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2024 (Docket No. 371296), Clare County

Father sought to modify custody and parenting time following an incident at the child’s school. The minor child, diagnosed with Autism Spectrum Disorder (“ASD”), is prone to outbursts. During one incident, the child became physically aggressive at school. Mother and her boyfriend arrived but refused to take the child home, instead demanding to speak with the teacher. The principal denied this request, suggesting that an appointment be scheduled.

A school employee inadvertently allowed Mother’s boyfriend into the building. When informed he could not enter the school office, he wedged his foot in the door to prevent it from closing. Mother then swung her arm and shoved the school employee. She subsequently took the minor child and began walking toward the classroom, ignoring the principal's instructions not to enter and yelling profanities at him. The principal initiated a school lockdown, and the police were called. Mother spanked the minor child, causing him to cry. Despite her resistance, Mother was eventually arrested.

Mother had a history of sending derogatory messages about Father to his mother. Additionally, both Mother and her (now husband) used physical punishment on the children. Following a hearing, the trial court determined that there was a change in circumstances and proper cause to consider modifying the existing custody and parenting time orders. By clear and convincing evidence, the court found it in the children’s best interests for the parties to retain joint legal custody, with Father being awarded sole physical custody.
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Mother argued that the trial court erred because she had been primarily responsible for managing the child’s medical needs, while Father had not been involved. The Court of Appeals rejected Mother’s argument, finding no overemphasis on the school incident. A behavioral analyst testified that Mother’s outburst at the school and her spanking of the child were detrimental to the child’s well-being. Moreover, Mother attempted to have a feeding tube inserted into the child despite no eating difficulties and repeatedly sought to have the child diagnosed with diabetes despite no blood sugar issues.

The Court of Appeals affirmed the trial court’s ruling.

Parenting Time

Gafford v. Gafford, unpublished per curiam opinion of the Court of Appeals, issued October 4, 2024 (Docket No. 369967), Livingston County

Mother and Father were awarded temporary joint legal custody of their minor child, along with a parenting time schedule that granted Father four overnights every fourteen days. Mother and the minor child moved to her parents’ home in Tecumseh.

At trial, Father requested a new equal parenting time schedule, proposing that the minor child reside primarily with Mother during the school year and “even out” the time during the summer. Mother sought to maintain the interim parenting time schedule as a permanent arrangement.
Following trial, the trial court determined that the minor child had an established custodial environment solely with Mother. It found that Mother was the primary caretaker and that Father’s proposed schedule would alter the ECE. The court denied Father’s request for expanded parenting time.

Father argued that the case was analogous to Bofysil v. Bofysil, 332 Mich App 232; 956 NW2d 544 (2020). However, the Court of Appeals rejected this argument, emphasizing the trial court’s finding that Mother was the primary caretaker. Unlike the working parent in Bofysil, Father did not adjust his schedule to maximize time with the minor child. The Court also noted the importance of the parties’ roles before their separation.

The Court of Appeals affirmed the trial court’s findings on the ECE, best interest factors, and the parenting time order.

Simon v. Simon, unpublished per curiam opinion of the Court of Appeals, issued December 17, 2024 (Docket No. 371011), Ionia County

Pursuant to the parties’ Judgment of Divorce, Mother and Father were awarded joint legal and physical custody of their minor children. In 2018, Father was incarcerated, and the parties agreed to a temporary order granting Mother sole legal and physical custody. Subsequently, Mother moved for and was granted sole custody as a “continuing order of the Court/Final Order.” Father was released from prison in 2021 and completed probation in 2023, at which point he moved for joint legal custody.

Father argued that the trial court erred in not adopting his proposed parenting time schedule. He proposed exercising 52 overnights per year with the parties’ daughters and contended that this arrangement would not impact the established custodial environment. However, the Court of Appeals found that Father failed to provide any evidence supporting this claim.

The Court also rejected Father’s argument that the trial court erred by not considering the parenting time factors outlined in MCL 722.27a(7), noting that the court is not required to address those factors. Additionally, the Court dismissed Father’s claim that the trial court should have examined the best interest factors to determine which proposed plan was “superior.” The Court held that such a comparison would conflict with the purpose of the Child Custody Act, which is “to promote the best interests of the child and to provide a stable environment for children that is free of unwarranted custody changes.” Marik v Marik, 325 Mich App 353, 360; 925 NW2d 885 (2018).

The Court of Appeals did find that the trial court erred in failing to independently consider the minor children’s reasonable preferences. However, the Court concluded that this error did not substantially affect the children’s rights. In this case, the trial court made independent findings based on the referee’s record, the referee had considered the children’s reasonable preferences, and the children were spared the stress of being interviewed a second time.

The Court of Appeals affirmed the trial court’s parenting time order.

Child Support

Bennett v. Perry, unpublished per curiam opinion of the Court of Appeals, issued December 3, 2024 (Docket No. 368185), Wayne County

Mother and Father were the parents of one (1) minor child. Mother filed an action to establish paternity, and Father was properly served. However, Father failed to file an answer to the complaint, resulting in a default being entered against him. Interim orders addressing paternity, custody, and child support were subsequently entered, requiring Father to pay $614 per month in child support.

Father later filed written objections, which included the following assertions:

Defendant stated that he, “a freeman known to use the name Eleyah-Ben: Avadliel-El, as homo liber objects to this corporate venue because it lacks personam jurisdiction over a freeman because he is exempt from service and jurisdiction of another.” Defendant then “denie[d] being the corporate STATE created legal entity known as ALVIS EUGENE PERRY[,] the alleged defendant named in this case.” Defendant signed the document using the name Eleyah-Ben: Avadliel-El, stating he was acting in the interest of “ALVIS EUGENE PERRY – LEGAL ENTITY.”

Father appeared at the hearing but refused to identify himself. The trial court determined that the written objections failed to provide any legal basis for setting aside or modifying the interim orders, which were subsequently adopted.

Father appealed, arguing that “Alvis Perry” was a legal entity and that the trial court lacked personal jurisdiction over his “true” person, whom he described as “the lawful freeman Eleyah-Ben: Avadliel-El.” The Court of Appeals rejected this claim.

Defendant attempts to skirt the trial court’s jurisdiction under the guise of “Alvis Perry” being a fictitious legal entity. The sovereign citizen movement attempts to create a distinction between “natural” and “artificial” persons. See Kalinowski, A Legal Response to the Sovereign Citizen Movement, 80 Mont L Rev 153, 158 (2019).
 
[F]ederal courts have also dismissed claims of sovereign citizenry as frivolous and fictitious. See Potter v United States, 161 Fed Cl 24, 29 (2022) (“[T]he legal fiction presented by [the] plaintiff in the complaint is not based in law but in the fantasies of the sovereign citizen movement. There is no jurisdiction in this court for fictitious claims.”). 
 
The Court of Appeals affirmed the trial court’s ruling.  

Benhadi v. Alafifi, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2024 (Docket No. 366814), Wayne County

The parties were married in Yemen and eventually moved to the United States. Husband owned a clothing business and traveled extensively for work. The parties separated in 2020, during which time Husband sent financial support while Wife also received assistance from other family members. Wife filed for divorce in 2021, and a trial was held in 2022.
At trial, Wife testified about the financial support she received during the separation and claimed that Husband owned overseas businesses. Husband denied these claims, stating that he worked as an Uber driver and owed substantial debt related to his businesses. The trial court found that Husband earned $62,000 annually from Uber and an additional $40,000 from his honey business. The court ordered Husband to pay child support.

The trial court awarded Wife the marital property, assigning Husband responsibility for the debt associated with it. Husband was awarded the rental property and his business interests. The parties were ordered to equally divide Husband’s bank accounts, while Wife retained her bank account, which consisted solely of funds she received after their separation. Additionally, the trial court ruled that if Wife could prove a home was built in Yemen during the marriage, she would be entitled to half its value.

On appeal, Husband challenged the trial court’s imputation of income, arguing that the court failed to account for his fuel expenses as an Uber driver. However, Husband had testified and stated in his closing brief that he earned approximately $1,200 per week. The Court of Appeals held that “Defendant cannot argue in the trial court that his income from Uber was $62,400 per year and then, on appeal, fault the trial court for accepting that contention because doing so is akin to harboring error. See Polkton Charter Twp v Pellegrom, 265 Mich App 88, 96; 693 NW2d 170 (2005).”

The Court of Appeals affirmed the trial court’s support order.

Samuel v. Samuel, unpublished per curiam opinion of the Court of Appeals, issued December 20, 2024 (Docket No. 369041), Oakland County

Following mediation, Mother and Father agreed to joint legal custody, with Mother having more overnight parenting time. The parties also agreed to a downward deviation in child support, as Father would provide afterschool care. Child support was to be calculated as if each party had an equal number of overnights. The mediator calculated support and submitted findings to the parties, which required Father to pay $1,100 per month. Mother disputed this obligation as insufficient.

Both parties filed motions to enter a judgment and Uniform Child Support Order (“UCSO”). Mother sought a child support award of $1,400 per month. During the hearing, Mother testified that she would agree to a support order accounting for only one of Father’s children from another marriage, as the other child had recently turned 18. She also stated that childcare costs need not be included because the parties’ child no longer attended daycare.

After proofs were taken, Mother sought to set aside the mediator’s child support award, arguing there was a mutual mistake. Father opposed this motion, contending that no mistake occurred because the parties had agreed, and the mediator had calculated support with the assumption of equal parenting time and no childcare costs attributed to either party.

The trial court denied Mother’s request, finding the mediation settlement binding. While the Michigan Child Support Formula (MCSF) calculated support at $1,735 per month, the trial court deviated downward, citing Father’s provision of afterschool care. The trial court entered a UCSO requiring Father to pay Mother $510 per month in child support.

MCL 552.605 outlines the requirements for a trial court to deviate from the Michigan Child Support Formula. On appeal, the Court of Appeals found that the trial court complied with MCL 552.605. It noted that Mother agreed to the settlement terms, which credited Father for equal parenting time due to the afterschool care he provided for the minor child.
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The Court of Appeals affirmed the trial court’s ruling.