Henry v. Henry

• Decision Date: 03 December 1982
• Docket Number: Docket No. 59745
• Parties: D. Craig HENRY, Plaintiff-Appellee, v. Rebecca A. HENRY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 497

326 N.W.2d 497

119 Mich.App. 319

D. Craig HENRY, Plaintiff-Appellee, v. Rebecca A. HENRY, Defendant-Appellant.

Docket No. 59745.

Court of Appeals of Michigan.

Submitted March 17, 1982.

Decided Sept. 7, 1982.

Released for Publication Dec. 3, 1982.

D. Craig Henry, P.C., Grand Blanc, for plaintiff-appellee.

Marjory B. Cohen, Detroit, for defendant-appellant.

Before J.H. GILLIS, P.J., and V.J. BRENNAN and LAMBROS, ^* JJ.

LAMBROS, Judge.

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.

M.C.L. Sec. 552.17a; M.S.A. Sec. 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, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 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, 269 N.W.2d 539. 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, 84 Mich.App. 239-240, 269 N.W.2d 539. 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, %2990,0000,119 Mich.App. [PG322]M.C.L. Sec. 722.23; M.S.A. Sec. 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."

M.C.L. Sec. 722.24; M.S.A. Sec. 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 M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3), eleven 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, M.C.L. Sec. ...