269 N.W.2d 539 | Mich. Ct. App. | 1978
HUTCHINS
v.
HUTCHINS
Michigan Court of Appeals.
Levine & Benjamin, P.C. (by Allan H. Tushman), for plaintiff.
Norman L. Zemke, for defendant.
*238 Before: BEASLEY, P.J., and ALLEN and H.E. DEMING,[*] JJ.
H.E. DEMING, J.
On April 16, 1976, 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 the prior approval of the court, as required by GCR 1963, 729.4(1). Defendant filed a motion to obtain the court's approval to move to Florida with the children, but this motion was denied. Defendant appeals as of right.
The granting or denial of a motion for approval to remove minor children from the State of Michigan under GCR 1963, 729.4(1) is entrusted to the discretion of the trial judge, Lem v Lem, 12 Mich App 174; 162 NW2d 683 (1968), and his decision will be affirmed unless he commits a palpable abuse of discretion, MCL 722.28; MSA 25.312(8). Although GCR 1963, 729.4(1) does not specify any guidelines for determining when the trial court should grant the motion to remove the children from the state, see Lem, supra, at 176, the decision should be based on the "best interests of the child" standard set out in MCL 722.23; MSA 25.312(3). This 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).
The trial judge's opinion does not indicate that he used this standard in determining whether, in the exercise of his discretion, to approve this motion for a change in residence. If anything, the record indicates that the judge denied this motion *239 on the grounds that he never granted a motion for change in residency unless both parents consented to it. While a parent's right to visitation is one factor to be considered, to the extent that it is relevant to determining the best interests of the child, it is not the controlling factor in these cases. The right to parental visitation must yield to the best interests of the child, Kane v Kane, 241 Mich 96; 216 NW 437 (1927), Lewis v Lewis, 338 Mich 197; 61 NW2d 66 (1953).
After a careful review of the record, we have been unable to discover any discussion of the factors which the statute requires the judge to consider, evaluate and determine. Numerous cases involving child custody have been remanded by this Court because of inadequate findings of fact on the trial record, see, e.g., Barnes v Barnes, 77 Mich App 112; 258 NW2d 65 (1977), In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975), Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). Therefore, this case is remanded to the circuit court to conduct a new hearing before a new trial court, see Bylinski v Bylinski, 25 Mich App 227; 181 NW2d 283 (1970), Williams v Williams, 18 Mich App 305; 170 NW2d 850 (1969). In consideration of the best interests of the child, this hearing should be conducted and the order entered as soon as administratively possible. We do not retain jurisdiction.
Reversed and remanded. Costs to defendant.
ALLEN, J., concurred.
BEASLEY, P.J. (concurring).
I concur in the result.
However, I would add that, in the absence of compelling reasons to the contrary, permitting a child to be removed from the State of Michigan to *240 a new, satisfactory location, should be routinely granted.[1]
We live in a transient society. With respect to the best interests of a child, state boundaries are artificial and meaningless; there is no presumption that bringing up a child in Michigan has any advantage (or disadvantage) over Missouri or Georgia, or any other state. To conclude otherwise would be a meaningless generalization. Restrictions upon where a custodial parent may live, in terms of geography, are not realistic. In every state there are good and bad places to bring up a child. To say that a custodial parent cannot move a child to any location in Florida, solely because it is outside of Michigan and in Florida, is patently arbitrary and capricious.
I do not anticipate that the filing of a petition for removal of a child from the state would be an automatic occasion for a full custody hearing. Only where there are additional facts that give rise to inquiry regarding the well-being and best interests of the child does a change of address indicate a need for anything more than a perfunctory hearing.[2] This is not to say that the factor of distance has no effect on visitation rights of the noncustodial parent and, perhaps, on the amount of child support payable.[3]
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] GCR 1963, 729.4(1) and (2) should be considered, together with GCR 1963, 727.2(3) and (4). Reference should also be had to the Uniform Child Custody Jurisdiction Act which became effective March 31, 1976, MCL 600.651 et seq., MSA 27A.651 et seq., which recognizes the transience of our late 20th century society.
[2] As indicated, the application of the Child Custody Act (MCL 722.21 et seq.; MSA 25.312(1) et seq.) is not automatic, but there may be situations where change of residence or domicile will give rise to their application.
[3] E.g., a trial judge might consider the cost of visiting a child residing in Hawaii as justifying lesser child support. With respect to visitation, we take judicial notice that jet air travel reduces the time between the most distant locations in the United States under ten hours.