Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright.  That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.


Cameron produces the North Oakland Divorce Blog.  This post is his original content; thanks Cam.


Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. 

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. 

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue. 

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.


Cameron's email: goulding@camerongoulding.com

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Posted in: Cameron Goulding,custody,divorce,lawyer,Michigan Court of Appeals,North Oakland Divorce Blog,parenting time,Wright v Shade

Custody and the 100-Mile Rule

The Michigan Legislature long-ago codified the rules of divorce in the Child Custody Act. One of the provisions in the Act addresses when one parent proposes to move:

"a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued."

A recent published (thus binding) decision of the Michigan Court of Appeals provides guidance as to how those 100-miles are calculated.

In Bowers -v- VanderMuellen-Bowers, the parents had joint legal custody of their son. Father, who had been awarded so-called "physical custody", wanted to move from Big Rapids to Byron, Michigan. The distance was very close to 100-miles.

The lower court adopted a "radial-miles" calculation, rather than using "road-miles" as the Mother asserted. The radial-mile method of calculation involves a simple calculation using a ruler and a map to connect two points, "as the crow flies"; not as a vehicle would travel on actual roads. In the Bowers case, the distance would be more than 100-miles if actual road-miles were calculated, and the move could have been disallowed by the family court judge.

In affirming the lower court's radial-miles decision, the Court of Appeals borrowed analysis from a 2007 Michigan Supreme Court case interpreting the 20-mile restriction of a public employee's residence in the Public Officers & Employees Act. Therefore, Michigan Courts do not calculate miles the way they are calculated by Google Maps or Mapquest.

If you have a case that involves a proposed move of your child which you do not think is in the best interests of the minor child, contact our office to discuss your options.

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Posted in: 100-mile rule,change of domicile,custody,parenting time