The Cutler Law Firm Blog

August 1, 2018

After years of ambiguity, the Michigan Supreme Court is poised to hear multiple cases that may offer clarity on several issues when parents are unable to agree on changes to a child’s school district. If you or someone you know is contemplating a move that would require changing a minor child’s school district, Contact Michael Cutler.

In situations where two parties share legal custody of a minor child, a move by one party to a new location often means that he or she will have to file a motion to change the minor child’s school district. Sometimes, this places the trial court in a difficult position because the judge must determine whether the move will adversely affect what’s known as the “established custodial environment,” and must also evaluate whether the move will be in the child’s best interests. Both of these determinations are fact-intensive and losing parties frequently file appeals to contest the court’s ruling.

However, at present, there is no guarantee that the Michigan Court of Appeals will hear such an appeal. Under Michigan law, the Michigan Court of Appeals is a court of limited jurisdiction, meaning that it can only preside over certain cases in certain circumstances. The most common types of acceptable are called “appeals by right”. Appeals by right are usually rooted in either a law or a court rule that authorizes the party to appeal a certain kind of decision. However, in family law cases, there are very few accepted grounds for appeals by right, and accordingly, the Michigan Court of Appeals frequently dismisses appeals for lack of jurisdiction.

The lack of an appeal by right for motions to change school districts has recently been the focus of several court cases. In Ozimek, the parties, who were never married, shared legal and physical custody of their child. After a year under this arrangement, the Plaintiff sought to move to another town, and filed a motion to change her son’s school from one in Allen Park to one in Livonia. Even after mediation, the parties could not agree on the change to the new school, and the trial court, after holding evidentiary hearings, ultimately denied the motion, finding that the move would adversely affect the Defendant’s ability to exercise parenting time.

Before the Michigan Court of Appeals could review the denial of the motion, it was required to first determine whether it could even hear the appeal, and ultimately, it determined that it did not have jurisdiction. In justifying its decision, the Michigan Court of Appeals noted that Michigan court rules had been changed in 1994 in order to decrease the backlog of appeals. While the revised court rule still empowered the Michigan Court of Appeals to hear appeals regarding post-judgment orders affecting the custody of a minor child, the court interpreted this exception narrowly because of the restrictive language of the 1994 revisions. Although it acknowledged that school decisions are a significant component of legal custody (the rights of parents to be involved in important decisions in their child’s life), the word custody in the rule in question was traditionally interpreted only to apply to physical custody (how time with the child is divided between the parents).

However, later in its opinion, the Michigan Court of Appeals also acknowledged that in another Michigan Court of Appeals case issued only four months earlier, it had arrived at the exact opposite conclusion when it found that legal custody was included within the rule. Given this ambiguity, the Michigan Court of Appeals also made the unusual move of explicitly urging the Michigan Supreme Court to “weigh in on the issue,” and asking supporters of an expanded rule to focus their efforts on the Michigan Supreme Court as well.

Recently, the Michigan Supreme Court has taken this advice to heart. In February, it agreed to preside over the appeal on Ozimek and in another substantially similar case, and it has requested that the parties make oral arguments on the topic of whether a motion to change schools can be considered a post-judgment order affecting the custody of a minor child. However the Michigan Supreme Court rules, there will likely be significant policy ramifications. For decades, the unwillingness of the Michigan Court of Appeals to hear appeals on this topic has frustrated parents because it limits the recourse they can seek from an adverse ruling. For its part, the Michigan Court of Appeals seems to prefer the status quo. In the Ozimek opinion, it stated that such a bottleneck is necessary in order for it to avoid being deluged by a large number of domestic cases spanning a diverse array of issues.

Family law in Michigan is a constantly evolving landscape. One of the most important decisions that you can make to ensure you prevail in a family law dispute is hiring a lawyer who is up to date on recent, critical developments in his area of practice. If you or someone you know is involved in a family law dispute, please contact Michael Cutler, a leading family law attorney today at 248-489-8780