Domestic Diversions

The Michigan Court of Appeals is publishing Brown v Loveman (February 12, 2004, Case No. 249016). The Court affirmed the order granting a petition to relocate the minor child to New York, but reversed and remanded for an evidentiary hearing (best interests analysis) on the proposed parenting time schedule that would change the child’s established custodial environment.

Jansen writes (excerpt):
Plaintiff contends that the trial court erred in applying the D’Onofrio factors, as opposed to the best interest factors, where there had been a prior status quo order and where the trial court determined that an established custodial environment existed with both parties. We find that the trial court did not err in applying the D’Onofrio factors when considering defendant’s petition to change the minor child’s residence. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors,
MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest.
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We find that the trial court properly determined, at the outset, that the D’Onofrio factors, now provided in MCL 722.31, were the appropriate inquiry when ruling on defendant’s petition for change of domicile, as opposed to the best interest factors that are appropriate to consider in ruling on a request for a change of custody. Because it is possible to have a domicile change that is more than one hundred miles away from the original residence without having a change in the established custodial environment the trial court did not err in, solely, applying the D’Onofrio factors to the change of domicile issue. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest. The subsequent change of the established custodial environment will be addressed, infra, but this change did not arise until after the trial court had ruled on the change of domicile motion. Because the trial court properly decided the domicile change based upon the D’Onofrio factors, and the change of an established custodial
environment did not arise until the defendant’s proposed parenting time schedule was entered, we find that the trial court properly addressed the domicile change using the D’Onofrio factors.

Plaintiff’s second issue on appeal is that the trial court erred in adopting the parenting time schedule proposed by defendant, which amounted to a change of custody without holding a hearing requiring that there be a showing by clear and convincing evidence and that the change is in the child’s best interest. We agree.
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It would be illogical and against the intent of the Legislature to apply MCL 722.31 without considering the best interests of the minor child, if the change in legal residence would effectively change the established custodial environment of the minor. Ansell, supra at 355. Otherwise, where parents have joint physical custody, and one party seeks to change the legal residence of the child (which would effectively change the established custodial environment),
the party would only be subject to the lesser preponderance of the evidence burden required by MCL 722.31. The Legislature could not have intended MCL 722.27 and MCL 722.31 to be applied completely independently of each other, where the result would allow a party seeking to change domicile (and in effect change the established custodial environment) to circumvent its burden of proof by clear and convincing evidence that the change is in the child’s best interest.

This Court has recognized that a change in domicile will almost always alter the parties’ parenting time schedule to some extent, and has, thus, held that the parenting time schedule need not be equal to the prior parenting time schedule in all respects. Mogle v Scriver, 241 Mich App 192, 204; 614 NW2d 696 (2000). Parenting time is granted if it is in the best interest of the child and in a frequency, duration, and type reasonably calculated to promote strong parent-child relationships. MCL 722.27a(1). But this Court has held that if a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child. In re Stevens, 86 Mich App 258, 270; 273 NW2d 490 (1978).
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It is possible to have a change of domicile, while having both parents retain joint physical custody without disturbing the established custodial environment. See Scott, supra. In Scott, supra at 450-453, both parents had joint physical custody of their children, the defendant had custody of the children during the school year, and the plaintiff had custody of the children during the summer, as well as on spring and winter vacations, and some weekends. This Court affirmed the trial court’s grant of the defendant’s petition to move the children to Ohio, and denial of the plaintiff’s motion for sole physical custody. Id. Where the parties retained the same parenting time schedule despite the change in domicile, this Court did not believe that it
deprived the plaintiff of his joint custody of the children. Id. at 451.

In the instant case, however, it appears that the modification from equal parenting time to defendant having parenting time during the school year and plaintiff having parenting time in the summer necessarily would amount to a change in the established custodial environment, requiring analysis under the best interest factor framework. See Dowd v Dowd, 97 Mich App 276, 277; 293 NW2d 797 (1980).
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The trial court did not clearly err in applying the D’Onofrio factors when considering defendant’s petition to change Marley’s residence from Michigan to New York. But once the trial court granted defendant permission to remove the minor child from the state, defendant’s proposed parenting time schedule effectively amounted to a change in the child’s established custodial environment. Once there was a change of the established custodial environment, the trial court was required to conduct an evidentiary hearing wherein defendant would have the opportunity to prove by clear and convincing evidence that the proposed change was in the minor child’s best interest. Failure to require such a showing was error and we remand for an
evidentiary hearing, at which time trial court must articulate its findings of fact on the relevant best interest of the child factors, and determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule is in the best interest of the minor child.

We affirm the trial court’s application of the D’Onofrio factors and grant of defendant’s petition to remove the minor child; we reverse trial court order adopting plaintiff’s proposed parenting time schedule; and remand for a full evidentiary hearing to determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule, which amounts to a change in the child’s established custodial environment, is in the child’s best interest. We do not retain jurisdiction.