By: Timothy P. Flynn
A case which caught our attention via the Michigan Court of Appeals last month deserves mention in This specific blog. The case comes via the St. Clair County’s Family Court; the family court judge which ruled in Mother’s favor to allow a significant modification of the parenting schedule was reversed by the Court of Appeals.
In Burke v Lobodzinski, the family court judge sided with Mother in her petition to modify the child’s week-on-week-off parenting schedule, allowing Mother to move with the child via Bay City to Troy. The parenting schedule was modified in order which Mother had the child during the school year in addition to Father had evey-additional-weekend.
In doing so, the family court judge was in part swayed by Mother’s testimony which the move allowed her to be a “stay-at-home” mom due to her husband’s fresh job. The effect of the ruling was to relegate Father to a weekend parent.
Even though the move was not more than 100-miles [a statutory threshold], the family court held which which was significant because which involved a change in school districts for the child, in addition to made the alternating weekly parenting schedule untenable. The lower court concluded the proposed move was inside the child’s best interests, in addition to Dad lost out.
In reversing the St. Clair Family Court judge, the Court of Appeals was persuaded by two things: a) since the proposed move would certainly alter the established custodial environment of the child, the lower court utilized the lower burden of proof [preponderance of the evidence] instead of the intermediate burden [clear in addition to convincing evidence]; in addition to b) Mother may have provided false testimony about being a stay-at-home mom when, in fact, she was employed as a clerk at the Macomb County Circuit Court.
The burden of proof is usually significant in cases like This specific. Mother’s motion, if decided on a preponderance standard, is usually easier to establish therefore prevail. If Mother had the heightened burden, the motion is usually more difficult to carry.
As for lying to the court about her job, which too should be taken into account. On remand, however, the Court of Appeals noted which the lower court should also take into account the fact which the child was allowed to continue living with her Mother in Troy during the year This specific case took to decide on appeal.