Michigan Supreme Court mulls parental disputes over school

By Lee Dryden
BridgeTower Media Newswires
DETROIT — The question of whether an order denying a motion to change a child’s school is appealable as a matter of right is being considered by the Michigan Supreme Court.

Justices heard oral arguments Oct. 11 on two similar cases — Ozimek v. Rodgers and Marik v. Marik. The cases involve parental disagreements over where children should attend school.

The high court called for briefs to be submitted on whether a court order denying a parent’s request for their child to change schools was “a postjudgment order affecting the custody of a minor” and therefore a “final order” under MCR 7.202(6)(a)(iii).

In Ozimek, the Court of Appeals ruled that “an order denying a motion to change schools is not an order affecting the custody of a minor within the meaning of MCR 7.202(6)(a)(iii).” The claim was dismissed for a lack of jurisdiction.

The plaintiff argued that the order denying the motion to change the child’s school district was appealable as a matter of right as an order affecting the custody of a minor.

Marik is a similar case that was appealed on the same grounds.

The Michigan Court of Appeals and family law practitioners have called for clarity on the matter.

In Marik, the divorced parents share joint legal and joint physical custody of their twin boys. The defendant father filed a motion to change the children’s school enrollment and to modify parenting time. The Friend of the Court hearing referee recommended that the motion be denied. The defendant objected, and the circuit court denied his objections and his motion, according to a case summary provided by court staff.

The Court of Appeals administratively dismissed the defendant’s claim of appeal for lack of jurisdiction, holding that it did not concern a postjudgment order affecting the custody of a minor and, therefore, was not a “final order” under MCR 7.202(6)(a)(iii). The appeals court also denied reconsideration.

“This should be pretty straightforward,” said Scott G. Bassett, who represents appellant father Peter Marik. “It comes down to what do we mean by custody and secondarily what do we mean by ‘affects custody.’”

In Ozimek, “what the Court of Appeals did in that case was essentially say that legal custody is not real custody,” said Bassett, a solo practitioner.

“There is nothing in any statute in this state, in any court rule in this state, and in no case before Ozimek that creates a hierarchy of custody that says physical custody is more important than legal custody. It doesn’t exist.”

The Court of Appeals decisions took family law practitioners by surprise, Bassett said.

“We had decades of an unbroken string of recognition that ‘affecting custody’ included all of these important legal custody rights like school enrollment. Then, all of a sudden, it changed. We haven’t been able to figure out the reason,” he said.

Bassett said decisions such as where a child attends school affect the legal custodial rights of the parents.

He said allowing an appeal by right would not open the floodgates for appeals as there is not a large number of such cases. He added that the fundamental rights of parents should be recognized and far less important cases are getting an appeal by right.

Susan S. Lichterman, who represents appellee mother Kimberly Marik, said the father’s custody was not affected.

“Legal custody is shared decision making,” she said. “A component of it is if you can’t decide, then the judge decides. That’s a part of legal custody.”

She agreed with justices who pointed out that custody was not in question in this case, but parents who disagree will end up with courts settling disputes and only one side will prevail on specific points.

Other decisions will come up that the parties have to make together or bring to a judge if they cannot agree, Lichterman said.

When a parent doesn’t prevail on a single decision, joint legal custody rights are not affected and there shouldn’t be an appeal by right, Lichterman said.

“When the next important decision comes up, the parents still have joint legal custody,” she said.

A standard of saying important decisions are appealable by right and unimportant decisions are not isn’t manageable, said Lichterman of Jaffe Raitt Heuer & Weiss.

“I think that’s why we have to put trust in our Court of Appeals and the application process,” she said.

Lichterman added that most joint legal decisions have to be determined very quickly.

“There really isn’t time for the appeal of right, even the expedited appeal, in custody cases,” she added.


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