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A Better Partnership
August 29, 2016

COA holds that order requiring instant makeup of parenting time is not an order that affects custody and therefore is not appealable by right

In Madson v. Jaso, No. 331605, the Michigan Court of Appeals held that a provisional post-judgment order for makeup parenting time 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.
 
In December 2011, the circuit court awarded joint legal custody of the minor child to both parties, and granted physical custody to the plaintiff.  Defendant was jailed in November 2014 for nonpayment of child support.  After her release, the Friend of the Court restored her regular parenting time, and the court subsequently granted makeup parenting time.  Plaintiff did not comply with those orders.  In January 2016, the circuit court ordered the plaintiff to abide by the order or be held in contempt.  Plaintiff appealed, arguing that the makeup parenting time order affected custody of their minor child.  The Court dismissed the appeal for lack of jurisdiction and plaintiff moved for reconsideration, which the Court denied.  Plaintiff then filed an application with 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 setting forth makeup parenting time.  It further held that jurisdiction does not exist where the plaintiff does not have an appeal by right because an order setting forth makeup parenting time is not an order affecting the custody of a minor.  According to the Court, MCR 7.202(6)(a)(iii) does not define “affecting,” and so the Court has previously relied on the dictionary definition of “most generally, to produce an effect on; to influence in some way.”  Here, the Court found that the order “did not resolve which parent would have custody of the child, nor did it resolve where the child will live.”  The order only substantially reduced the amount of plaintiff’s parenting time in the interim until the defendant’s parenting time was made up.  In addition, the Court found that extending the Court’s jurisdiction to incorporate legal custody issues would expand the court rule  “as to nullify the qualifying language ‘affecting the custody on a minor.’ ” The Court dismissed plaintiff’s appeal for lack of jurisdiction and declined to exercise its discretion to treat the claim of appeal as an application for leave to appeal.

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