Military Family , reassignement and Child Custody

MILITARY FAMILY ALLOWED TO KEEP CUSTODY ON A CROSS COUNTRY RE ASSIGNMENT!

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The case discussed here is a Michigan Family Law case involving the ability of a parent to move a significant distance and retain custody of her child.
Issues discussed :
Divorce; D'Onofrio v. D'Onofrio (NJ Super.); Rittershaus v. Rittershaus;
Whether the trial court's ruling on factor MCL 772.31(4)(a) was erroneous; Costantini v. Costantini; Mogle v. Scriver;
Whether the trial court erroneously evaluated factor MCL 772.31(4)(a) by considering the move relative to Maryland versus Arkansas instead of Michigan versus Arkansas; MCL 772.31(4)©)
Court: Michigan Court of Appeals (Unpublished) 10/21/08
Case Name: Nooney Smith v. Nooney
Kent County MI USA
LC 05-004809
e-Journal Number: 40821
Judge(s): Per Curiam - Markey, Sawyer, and Kelly
The trial court's ruling on factor MCL 772.31(4)(a) was erroneous because the evidence fully supported a finding prohibiting the change of domicile to Arkansas would worsen the quality of life for the plaintiff-mother and the child.
In interpreting Divorce, Custody and Parenting time Laws the Court of Appeals found it was in the child best interest to move out of State.
The Court uses the statutory Best Interest Factors to evaluate these issues. Because the trial court's findings on factors (a) and ©) were against the great weight of the evidence, the trial court's ultimate conclusion that the D'Onofrio factors were not met was against the great weight of the evidence and the court found the trial court abused its discretion in denying plaintiff's motion for a change of domicile.
Family, particularly those in the Military have unique needs, the court must take them into consideration.
Prohibiting the move , of a United States Army Family, would sever their nuclear family and force plaintiff and her new husband, a staff sergeant, to maintain separate households in different states, which would place a significant financial burden on plaintiff and her lifestyle with the minor child.
In evaluating factor (a), the trial court indicated no additional funds would result from the move, because the staff sergeant was just being relocated from one location to another.
The trial court's focus in making this determination was misplaced, looking at a move by plaintiff from Maryland to Arkansas, instead of Michigan to Arkansas. The staff sergeant provided the sole income for the family's living expenses and was required to move to Arkansas.
The Mothers rights allow her to be a stay at home mom for her kids. Plaintiff is a stay-at-home mom. If she were allowed to move to Arkansas with the minor child, her husband would only be financially supporting one household.
On the other hand, if plaintiff were forced to return to Michigan with the minor child, as advocated by defendant and ordered by the trial court, two households would have to be maintained. "Maintaining two households on one income cannot be interpreted as being beneficial for the minor child or plaintiff.
A substantial financial burden would be placed on the family as a whole." The D'Onofrio test recognizes an improvement of a family's financial situation benefits the entire family unit, which consists of the custodial parent and child.
There will be an improvement in the financial situation of the entire family unit if the parent and the minor child move to Arkansas, as opposed to living in Michigan. Thus, changing plaintiff and the minor child's legal residence to Arkansas had the capacity to substantially improve the quality of life for both the minor child and the custodial parent. Reversed in part and affirmed in part.
If you have question please feel free to contact me.
Terry Bankert
http://attorneybankert.com/
10/31/08