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Docket Number

Docket No. 59745.

Attorney(S)

D. Craig Henry, P.C., for plaintiff. Majory B. Cohen, for defendant.

Judges

N.J. LAMBROS, J.

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Smart Summary

Summary of Opinion: HENRY v HENRY, Michigan Court of Appeals (Sept. 7, 1982)

Factual and Procedural Background

On November 5, 1980, defendant was awarded a judgment of divorce and custody of her two minor children. The judgment provided that the children's domicile or residence could not be removed from the State of Michigan without prior approval of the court, as required by GCR 1963, 729.4(1), and specifically precluded changing the children's domicile from the Grand Blanc School District without prior court approval. The defendant filed a petition seeking the court's approval to move to Minnesota with the children. That petition was denied by the trial court. The defendant appealed the denial as of right to the Michigan Court of Appeals.

Legal Issues Presented

Whether the "best interests of the child" standard set out in the Child Custody Act (MCL 722.21 et seq.; MSA 25.312(1) et seq.) applies to post‑judgment petitions seeking court approval to remove custodial children from the State of Michigan.
If the Child Custody Act does not apply, what legal standard should govern a trial court's decision on a petition to remove custodial children from the state following an award of custody?
Whether the trial court properly denied the defendant's petition to move to Minnesota with the children under the applicable standard.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hutchins v Hutchins, 84 Mich. App. 236; 269 N.W.2d 539 (1978)	Held that decisions on removal petitions should be based upon the "best interests of the child" standard set out in the Child Custody Act; that standard applies in original custody proceedings and in actions involving custody disputes.	The Court recounts Hutchins as applying the Child Custody Act standard to removal petitions but ultimately rejects extending the Act's full "best interests" framework to post‑judgment removal petitions.
Watters v Watters, 112 Mich. App. 1; 314 N.W.2d 778 (1981)	Majority adopted the view that the Child Custody Act "best interests of the child" standard applies to removal petitions (adopting Hutchins' approach).	The Court notes that Watters adopted Hutchins' approach but holds that the Child Custody Act is not intended to govern post‑judgment removal petitions and instead looks to another test.
D'Onofrio v D'Onofrio, 144 N.J. Super. 200; 365 A.2d 27 (1976), aff'd 144 N.J. Super. 352; 365 A.2d 716 (1976)	Articulated a four‑part test for removal petitions focusing on (1) prospective advantages of the move for custodial parent and children; (2) integrity of custodial parent's motives; (3) integrity of noncustodial parent's motives; and (4) whether realistic visitation opportunities remain.	The Court adopts the D'Onofrio test as the appropriate standard for post‑judgment removal petitions, finding it focuses on the new family unit and comports with legislative intent and societal mobility.

Court's Reasoning and Analysis

The court began by identifying the governing statutory and procedural authorities: circuit court jurisdiction to award custody (MCL 552.17(a); MSA 25.97(1)), the Child Custody Act (MCL 722.21 et seq.; MSA 25.312(1) et seq.), and GCR 1963, 729.4 which requires custody orders to restrict removal from Michigan without judicial approval.

The court analyzed the Child Custody Act's text and scope, emphasizing that the Act applies to "actions ... involving dispute of custody of a minor child," as stated in MCL 722.24; MSA 25.312(4). Because the Act is directed to resolving custody disputes (including the statutorily enumerated factors in MCL 722.23; MSA 25.312(3)), the court concluded the Act was not intended to govern post‑judgment petitions seeking approval to remove children from the state after custody has been decided.

The court reasoned that applying the Act's comprehensive "best interests" factors to removal petitions would require trial courts to reconsider issues already resolved in prior custody proceedings and could introduce inappropriate inquiries in the limited context of removal petitions.

The court also referenced the Legislature's adoption of the uniform child custody jurisdiction act (MCL 600.651; MSA 27A.651) and the legislative objectives of avoiding disruptive interstate shifting of children and promoting stability, noting that these considerations support a standard sensitive to both stability and societal mobility.

Accordingly, the court adopted the four‑part D'Onofrio test as the appropriate framework for deciding removal petitions. The court explained that D'Onofrio focuses on prospective advantages to the custodial parent and children, the integrity of both parents' motives, and the availability of realistic visitation alternatives, thereby assessing the effects of removal on the new custodial family unit without re‑litigating custody.

Holding and Implications

Holding: The Court reversed the trial court's denial of the defendant's petition to move to Minnesota with the children and remanded the cause for proceedings consistent with the Court of Appeals' decision.

Implications: The Court held that the Child Custody Act's "best interests of the child" factors, which govern custody disputes, are not the appropriate standard for post‑judgment removal petitions. Instead, courts should apply the D'Onofrio four‑part test (prospective advantages, custodial parent's motives, noncustodial parent's motives, and realistic visitation opportunities) when evaluating requests to remove custodial children from the state after custody has been awarded. The direct effect of this decision was to reverse the denial of the defendant's removal petition and remand for further proceedings under the adopted standard.

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HENRY v HENRY

N.J. LAMBROS, J.

On November 5, 1980, defendant was awarded a judgment of divorce and custody of her two minor children. That judgment provided that the domicile or residence of said minor children shall not be removed from the State of Michigan without prior approval of the court, as required by GCR 1963, 729.4(1). In addition, the defendant was precluded from changing the domicile or residence of the minor children from the Grand Blanc School District without prior court approval. Defendant filed a petition to obtain the court's approval to move to Minnesota with the children, but this petition was denied. Defendant appeals as of right.

The instant case presents this Court with an opportunity to clarify our position regarding removal of children from this state subsequent to the entry of a judgment of divorce and the award of custody.

MCL 552.17(a); MSA 25.97(1) provides that our circuit courts shall have the jurisdiction to award custody of minor children in all divorce proceedings. In an attempt to provide guidelines for the resolution of child custody disputes, our Legislature enacted the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq. GCR 1963, 729.4 requires that an order or judgment awarding custody of a child or children shall provide that the domicile or residence of the child shall not be removed from the State of Michigan without the approval of the judge who awarded custody, or his successor. This is the body of codified law which governs our review of the instant inquiry.

Two of our panels have already had an opportunity to examine this issue. In Hutchins v Hutchins, 84 Mich. App. 236; 269 N.W.2d 539 (1978), the court determined that in attempting to answer removal petitions, the decisions of the lower courts should be based upon the "best interests of the child" standard set out in the Child Custody Act. The Court observed that "[t]his standard applies not only in the original divorce proceeding but also in all actions involving a dispute of custody of a minor child, see MCL 722.24; MSA 25.312(4)." Id., 238. This view of the law was adopted by a majority of the Court in Watters v Watters, 112 Mich. App. 1; 314 N.W.2d 778 (1981).

In both of these cases separate opinions were appended by the third judge. Concurring in Hutchins, Judge WILLIAM R. BEASLEY wrote that "in the absence of compelling reasons to the contrary, permitting a child to be removed from the State of Michigan to a new, satisfactory location, should be routinely granted". (Footnote omitted.) Hutchins, supra, 239-240. Dissenting in Watters, Judge KENNETH B. GLASER indicated his belief that the criteria for determining the best interest of the child for custody purposes under the Child Custody Act, MCL 722.23; MSA 25.312(3), were not intended to, nor should they be, applicable to removal petitions. We agree.

A close analysis of the Child Custody Act reveals nothing to support its application to those cases involving the removal of children from the state after the award of custody. Indeed, the Legislature, itself, defined the application and limits of the act with the following language, to wit: "AN ACT to declare the inherent rights of minor children; to establish rights and duties to their custody, support and visitation in disputed actions; to provide for certain procedure and appeals; and to repeal certain acts and parts of acts."

MCL 722.24; MSA 25.312(4) provides, "In all actions now pending or hereafter filed in a circuit court involving dispute of custody of a minor child, the court shall declare the inherent rights of the child and establish the rights and duties as to custody, support and visitation of the child in accordance with this act." (Emphasis added.) Application of the preceding language to child custody cases requires trial courts to determine what action would be in the best interests of the child. As mandated by MCL 722.23; MSA 25.312(3), 11 specific factors must be considered by the trial court.

To expand the application of the Child Custody Act to include removal petitions does violence to the expressed intention of the Legislature and imposes upon the trial courts the burden to reconsider factors previously before the court in child custody disputes and may be likely to present wholly inappropriate areas of inquiry in removal petitions.

Moreover, in 1975, our Legislature adopted the uniform child custody jurisdiction act, MCL 600.651; MSA 27A.651, for the purpose of avoiding child custody disputes "which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being", and in the interest of promoting "greater stability of home environment and of secure family relationships for the child". In the words of Judge BEASLEY in his concurrence in Hutchins, supra, 240, fn 1, adoption of the act "recognizes the transcience of our late 20th century society".

We believe the appropriate test to be applied in cases dealing with removal petitions is that articulated by the New Jersey Court in D'Onofrio v D'Onofrio, 144 N.J. Super. 200; 365 A.2d 27 (1976), aff'd 144 N.J. Super. 352; 365 A.2d 716 (1976), adopted by reference in Watters v Watters, supra, and which recognizes the mutual rights involved:

(1) "It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.

(2) "It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State.

(3) "It must likewise take into account the integrity of the noncustodial parent's motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.

(4) "Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed." D'Onofrio v D'Onofrio, supra.

The D'Onofrio test focuses on what is in the best interest of the new family unit, i.e., custodial parent and child, and not what is in the best interest of the child; the latter having been decided in the earlier custody hearings. Adoption of the D'Onofrio test comports with the legislative intent as it is currently expressed and recognizes the increasingly legitimate mobility of our society. Arbitrary imposition of the "best interests of the child" test in all matters concerning children is illogical at best and cruelly insensitive at worst.

For these reasons, the decision of the lower court rejecting defendant's petition to move to another state with the children is reversed and the cause remanded for proceedings consistent with our decision.

HENRY v. HENRY