Parental battles over school land before high court

By Lee Dryden
BridgeTower Media Newswires

DETROIT - After prompting by the Michigan Court of Appeals and family law practitioners, the Michigan Supreme Court is taking a look at cases involving disagreements among parents over where a child should attend school.

The high court issued a trio of orders Feb. 3 regarding similar matters on a topic where many say clarity is needed.

In Ozimek v. Rodgers, 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 her motion to change the child's school district was appealable as a matter of right as an order affecting the custody of a minor.

The Supreme Court will hear oral arguments on whether to grant leave to appeal for the appeals court decisions in Ozimek and Marik v. Marik, a similar case that was appealed on the same grounds.

The court ordered that an application for leave to appeal in another parenting-time case, Madson v. Jaso, be held in abeyance pending the decision in the other two matters.

In Ozimek and Marik, 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).

One example

In the Ozimek case in Wayne County, plaintiff Vanessa Ozimek and defendant Lee Rodgers, who were never married, share joint legal and physical custody of their child.

In 2015, the plaintiff and child moved to Livonia with her fiancé and she filed a motion to transfer her son to a school there from an Allen Park school, according to the appeals court opinion.

The parties could not agree on switching schools so the trial court decided the issue after attempted mediation and several evidentiary hearings. The court found that the established custodial environment with both parents would be altered by the school change because it would be difficult for the defendant to maintain his parenting schedule.

The Court of Appeals dismissed the plaintiff's appeal and denied reconsideration. The Michigan Supreme Court vacated the Court of Appeals dismissal and remanded the case for further consideration.

In the dismissal in an August 2016 published opinion, an appeals court panel stated: "No law or court rule establishes an appeal by right to this Court from an order denying a change in a child's school."

MSC direction needed?

The per curiam Ozimek opinion, issued by Judges David H. Sawyer, Joel P. Hoekstra and Colleen A. O'Brien, acknowledged the appeals court has not always been consistent in school choice cases and urged the high court to "weigh in on the issue."

"Further, should practitioners wish to promote an expanded court rule, our Supreme Court would be the proper venue for that request," the panel wrote.

The court predicted it would be overwhelmed if the court rule were broadened.

"Using legal custody as a basis for this Court's jurisdiction would permit a far-reaching array of cases to be appealed by right to this Court," the opinion stated. "This Court has made considerable progress since the 1994 court rule amendment to eliminate the crushing backlog of appeals and to decrease the time in which appeals are resolved.

"If all orders involving legal custody issues are to be appealable by right and receive the same priority status as actual custody disputes, this Court's forward progress in expediently resolving appeals will be swiftly thwarted."

Attorney reaction

Anne Argiroff, who represents the plaintiff in the Ozimek matter, said, "The Court of Appeals decision in Ozimek has far-reaching effects and has been used to cut off an appeal of right from decisions concerning legal custody of children."

The defendant's attorney in the Ozimek case, Jacqueline I. Theisz, did not respond to requests for comment.

The Michigan Coalition of Family Law Appellate Attorneys reacted to the high court's recent orders in the related cases. The group, which addresses procedural and jurisdictional issues in domestic relations appeals, includes Argiroff, Scott Bassett, Judith Curtis, Liisa Speaker, Kevin Gentry and Trish Haas.

"We are heartened that the Supreme Court granted oral argument on the applications," the group stated. "This is a legal issue that goes to the core of what constitutes custody. The Legislature defined joint custody as including both alternating residences (joint physical custody) and shared decision-making on important issues (joint legal custody) without creating a hierarchy between physical and legal custody.

"The Supreme Court has recognized child custody and a child's custodial environment as comprised of physical and legal components. Custody is both physical and psychological, including guidance, discipline, and decision-making concerning a child.

"Many practitioners see legal custody as the most significant aspect of custody. The loss or grant of legal custody is a loss or grant of control over one's child, and the associational, religious, educational, medical, and other foundational decisions that help mold a child into the adult he or she will become. This is a decision that will potentially affect every Michigan parent and family."

Published: Mon, Feb 20, 2017

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