Madson v. Jaso
317 Mich. App. 52
| Mich. Ct. App. | 2016Background
- Parents (Madson and Jaso) share joint legal custody; Madson had physical custody per a 2011 order; a formal parenting-time schedule was set in 2014.
- Jaso’s parenting time was reduced after separate CPS reports and her incarceration for nonpayment of support; Madson received extended parenting time and later refused to restore Jaso’s time.
- The Friend of the Court recommended restoration; the circuit court ordered make-up parenting time (five uninterrupted days, alternating weeks, holiday schedule) and later directed immediate turnover; Madson did not comply.
- The circuit court threatened contempt and ordered a custody evaluation pending a custody trial; in the interim it set alternating-weekend parenting time for Madson.
- Madson appealed, arguing the makeup-parenting-time order affected custody and was appealable by right under MCR 7.202(6)(a)(iii) and MCR 7.203(A); the Court of Appeals initially dismissed for lack of jurisdiction and the Michigan Supreme Court remanded for a focused opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interim makeup-parenting-time order is appealable by right as a postjudgment order "affecting the custody of a minor" under MCR 7.202(6)(a)(iii) (and thus falls under MCR 7.203(A)(1)) | Madson: the order effectively changed the custody arrangement and therefore "affected custody," making the order appealable by right. | Jaso: the order was provisional makeup parenting time, did not change custody or resolve custody factors, and is not a final order affecting custody. | The Court of Appeals held the makeup-parenting-time order did not "affect custody" within MCR 7.202(6)(a)(iii); the appeal is dismissed for lack of jurisdiction. |
Key Cases Cited
- Wardell v. Hincka, 297 Mich. App. 127 (interpretation of MCR 7.202(6)(a)(iii) and use of dictionary definition of "affect")
- Varran v. Granneman, 312 Mich. App. 591 (broad discussion of "custody" including legal custody and grandparenting time implications)
- Thurston v. Escamilla, 469 Mich. 1009 (orders denying change of domicile treated as orders affecting custody)
- Rains v. Rains, 301 Mich. App. 313 (denial of relocation motion influences where child will live; custody implications)
- In re AJR, 496 Mich. 346 (distinction between physical and legal custody)
- Powery v. Wells, 278 Mich. App. 526 (discussion of relegating a parent to "weekend" status)
- Surman v. Surman, 277 Mich. App. 287 (postjudgment order need not be permanent to affect custody)
- Grange Ins. Co. of Mich. v. Lawrence, 494 Mich. 475 (definitions and distinctions of legal and physical custody)
- Pierce v. City of Lansing, 265 Mich. App. 174 (court discretion to treat appeal as application for leave to appeal)