Bielawski v. Bielawski, Docket No. 77313

• Decision Date: 09 November 1984
• Docket Number: Docket No. 77313
• Citation: 137 Mich.App. 587,358 N.W.2d 383
• Parties: Michael B. BIELAWSKI, Plaintiff-Appellant, v. Sherrie N. BIELAWSKI, Defendant-Appellee. 137 Mich.App. 587, 358 N.W.2d 383
• Court: Court of Appeal of Michigan — District of US

Page 383

358 N.W.2d 383

Michael B. BIELAWSKI, Plaintiff-Appellant, v. Sherrie N. BIELAWSKI, Defendant-Appellee.

Docket No. 77313.

137 Mich.App. 587, 358 N.W.2d 383

Court of Appeals of Michigan.

Submitted June 20, 1984.

Decided Sept. 17, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 589] Van Til, Kasiborski & Ronayne by John J. Ronayne, III, and Kenneth A. Flaska, Detroit, for plaintiff-appellant.

Sherrie Bielawski, in pro. per.

Before MacKENZIE, P.J., and BEASLEY and KIRWAN ^*, JJ.

JOHN R. KIRWAN, Judge.

This is an appeal as of right from the trial court's decision to grant defendant mother's motion to amend the decree of divorce so as to allow the mother to move her residence with the minor child from Michigan to Texas.

Plaintiff Michael Bielawski and defendant Sherrie Bielawski were divorced on March 26, 1981. The parties were granted joint legal custody of their daughter, Ann, with physical custody awarded to the mother. Also contained in the judgment of divorce was a provision that the child could not be removed from the State of Michigan without prior approval of the court.

On March 14, 1984, defendant filed her motion for modification of the judgment of divorce requesting that she be allowed to remove the child from Michigan. According to the motion, she had been formally offered a job in Dallas, Texas, as a project manager with a consulting firm and had made an application to rent an apartment in Dallas which would provide adequate living arrangements for her and her child. At the hearing on the motion she argued that the move to Texas would substantially improve her financial security, that the move was not an attempt to deprive [137 MICHAPP 590] plaintiff of visitation rights, and that she was willing to pay expenses of transporting the child to Michigan to assure plaintiff his visitation rights.

Plaintiff claimed that defendant had made previous threats to leave the state and that the present motion was simply another attempt to prevent the father from having a meaningful relationship with his daughter. He also claimed that the motion was not made in good faith and that the move would not be in the best interests of the child. (Plaintiff's further claim that the child had missed a great deal of school was answered by defendant's counsel who indicated that the child had been withdrawn from school in anticipation of the move to Texas and that the child otherwise had missed very little school.) In order to support these accusations, plaintiff's counsel requested that resolution of the matter be delayed so that he could conduct discovery. The trial court, however, refused the request, stating that because defendant's offer of a job in Texas was to expire within a few days, an emergency situation existed requiring an immediate decision. The court then granted defendant's motion to remove the child from the state.

I

There presently exists in this Court a split of authority as to whether the "best interest of the child factors" as set forth in Sec. 3 of the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq., must be considered before deciding a motion to allow the removal of a minor child from the state. Two panels of this Court, Hutchins v. Hutchins, 84 Mich.App. 236, 269 N.W.2d 539 (1978), and Watters v. Watters, 112 Mich.App. 1, 13, 314 N.W.2d 778 (1981), have determined that the best interest of the child test is controlling in deciding motions [137 MICHAPP 591] for removal. Two other panels, however, Henry v. Henry, 119 Mich.App. 319, 326 N.W.2d 497 (1982), and Scott v. Scott, 124 Mich.App. 448, 335 N.W.2d 68 (1983), have determined that since a motion for removal does not involve a custody determination, a review of the best interest of the child factors as set forth in the Child Custody Act is inappropriate.

It is this Court's view that the more recent cases, Henry, supra, and Scott, supra, present the better view. Consideration of the "custody factors" ordinarily neither leads nor reasonably relates to a resolution of those issues that arise when a custodial parent seeks to remove a child to a place that is geographically distant from where the noncustodial parent lives. When such motions are made, the underlying concern of the noncustodial parent is almost always the effect that such move will have upon the relationship of the child and the noncustodial parent, and visitation rights. A consideration of the "custody factors" is not helpful in searching for resolutions to these problems. We believe that the interests of all parties are better served in resolving such motions by following the criteria enunciated in Watters, supra, 112 Mich.App. pp. 12-13, 314 N.W.2d 778 when the Court quoted from D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 206-207, 365 A.2d 27 (1976):

"Where * * * the custodial parent can demonstrate that a real advantage to herself and the children will result from their removing their residence to a place so geographically distant as to render weekly visitation impossible, then the court must weigh a number of determinative factors in order to accommodate the compelling interests of all of the family members. 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...