Change in Domicile

Davenport v Mosholder, Unpub, (#295852, 9/9/2010)

Defendant appealed the circuit court order granting plaintiff’s motion to change the domicile of the parties’ minor child from Michigan to Georgia. The judgment of divorce in 2006 provided that the parties would share joint legal and joint physical custody of their child. In 2009 the mother filed a petition to change domicile to Georgia. The mother planned to remarry in February 2010, and her fiancé resided in Georgia. The father opposed the child’s move.

On appeal the father asserts that the circuit court erred by declining to consider whether clear and convincing evidence established that the move to Georgia served the child’s best interests, as required by MCL 722.23. The circuit court found that an established custodial environment existed with both parents, with the mother having “primary physical custody” during the school year. However, the circuit court ruled that the proposed move to Georgia would not alter the child’s established custodial environment because the father will have the opportunity to exercise 138 overnights with the child, which is nearly the same amount he currently enjoys. . . . The child will have open access to both parents and both parents have open access to him. This provides him with continued security and stability even though the custodial schedule and his legal residence and domicile have changed.

The Court of Appeals reversed. A custodial environment “is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). “Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence.” Sinicropi v Mazurek, 273 Mich App 149, 178 (2006). If a proposed relocation “would result in a change in parenting time so great as to necessarily change the established custodial environment,” the court must conduct an inquiry into the best interest factors set forth in MCL 722.23. In ascertaining whether a proposed change modifies an established custodial environment, “it is the child’s standpoint, rather than that of the parents, that is controlling.” Pierron v Pierron, 486 Mich 81, 92 (2010).

The circuit court’s finding that the move to Georgia would occasion no change in the child’s established custodial environment contravenes the great weight of the evidence. The record supports that the father enjoyed almost daily contact with his son, attended and helped coach his flag football practices, and served as the child’s scout den leader. The child and father regularly read together, played catch and golf, and worked on science projects. Viewed from the child’s standpoint, a move to Georgia would disrupt the child’s ready access to his father and impair the child’s ability to receive guidance, structure, and comfort from his father. We reject the notion that contact through a webcam, even if maintained daily, may effectively substitute for the established custodial environment present in this case.