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A Better Partnership
August 29, 2016

COA holds that order denying a motion to change schools is not an order affecting the custody of a minor

In Ozimek v. Rodgers, No. 331726, the Michigan Court of Appeals held that an order denying a motion to change schools is not an order affecting the custody of a child under the Michigan Court Rule regarding jurisdiction, MCR 7.202(6)(a)(iii).  Therefore, in this case, the Court did not have jurisdiction over plaintiff’s appeal.
 
Plaintiff and defendant share joint legal and physical custody of their nine-year old son.  Plaintiff filed a motion to switch the child’s school and, after mediation, the trial court found that an established custodial environment existed with both parents and denied the plaintiff’s motion.  Plaintiff filed a claim of appeal arguing that the order denying her motion was appealable as a matter of right because it was an order that affected the custody of the child.  The Michigan Court of Appeals dismissed the appeal for lack of jurisdiction, holding that the trial court’s order was not a final order affecting the custody of a minor within the meaning of MCR 7.202(6)(a)(iii).  Plaintiff filed a motion for reconsideration which was denied by the Court.  Plaintiff then appealed to the Michigan Supreme Court.  The Supreme Court issued an order vacating the Court of Appeal’s decision and remanded with instructions to the Court of Appeals to address whether the order in this case affects the custody of a minor within the meaning of MCR 7.202(6)(a)(iii), or is appealable by right under MCR 7.203(A). 
 
On remand, the Court of Appeals held that MCR 7.203(A) was not applicable because no law or rule establishes an appeal by right from an order denying a change in a child’s school.  It further held that jurisdiction does not exist where the plaintiff does not have an appeal by right because an order denying a motion to change schools is not an order affecting the custody of a minor.  According to the Court, in 1994, the Michigan Supreme Court limited the language in the court rule governing jurisdiction over appeals by right.  Specifically, the Court amended MCR 7.203 to “provide that a final order did not ‘include an order entered after judgment has been entered in a domestic relations action, except for an order affecting the custody of a minor.’ ”  Here, the Michigan Court of Appeals held that the change in the child’s school had no effect on the parenting time of the parties and therefore did not affect the custody of their son.  In addition, the Court opined that plaintiff’s contention that motions to change schools affect the custody of a minor would thwart the Court’s progress in expediently resolving appeals.  The Court held that it did not have jurisdiction over this matter and declined to exercise its discretion to treat the claim of appeal as an application for leave to appeal.

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