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A Better Partnership
December 22, 2014

COA holds that a court may not permit a parent to change a child’s domicile exclusively based on sole legal custody where the parents have joint physical custody

The Court of Appeals concluded in Sulaica v. Rometty, No. 321275, that the lower court erred when it granted Rometty’s motion to move her child out of state because Rometty has sole legal custody of her child.  The trial court erred when it did not consider whether the move was a change in the child’s custodial environment under MCL 722.27 because the parents share joint physical custody.  The Court of Appeals remanded for the trial court to determine whether the move constituted a change in the child’s custodial environment and, if so, to whether the move was in the child’s best interests.
 
Sulaica and Rometty have a child together, but are not married. In October 2002, Sulaica filed a complaint for custody, which led to a consent judgment that specified each party’s custody and support rights. The trial court granted Rometty sole legal custody and both parties joint physical custody of the child. Sulaica and Rometty were Michigan residents at the time and the judgment restricted each parent’s right to permanently move the child out of Michigan without approval of the other party or approval of the court.
 
Rometty filed a motion with the court to change the child’s domicile to Florida. Sulaica disputed the move and asserted that Rometty could not take their child without first showing that the move was in the child’s best interests. Rometty argued that because she was the sole legal custodian of the child, it was unnecessary to analyze the best interests factors. The trial court found the move appropriate exclusively because Rometty has sole legal custody.
 
MCL 722.27 prohibits any change to an established custodial environment unless the change is shown by clear and convincing evidence to be in the child’s best interests. A custodial environment exists when, if after an appreciable time, the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.
 
The Court of Appeals held that the trial court erred in failing to consider the analysis set forth in MCL 722.27 whether an established custodial environment existed and whether the defendant’s planned move to Florida constituted a change to that environment that was in the child’s best interests. The Court reasoned that the above analysis is always warranted if the parents have joint physical custody. The Court of Appeals further concluded that the lower court’s record was not developed enough for the Court to determine that the lower court’s error was harmless.
 
Therefore, the Court of Appeals remanded back to the trial court the issue of whether an established custodial environment existed and if so, whether Rometty’s move to Florida represented a change to that environment. If, on remand, the trial court finds that the move constitutes a change to an established custodial environment, the trial court must also compel Rometty to demonstrate by clear and convincing evidence that the move is in the child’s best interests.

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