The Michigan Supreme Court addresses a child custody dispute involving the children’s school. This post discusses the procedural implications of the anticipated ruling.
For most people, springtime brings warmer weather and melting snow. For family law attorneys, it also brings motions to change the school districts of their children. If filed in the spring, these motions can be resolved before the child returns to school in the fall.
The Ozimek v Rodgers Case.
For the 9-year old son of Vanessa Ozimek and Lee Rodgers, that process has taken a bit longer. The Michigan Supreme Court has decided to hear oral arguments on the application for leave to appeal. The court will hear brief arguments from both attorneys regarding why the issue in Ozimek v Rodgers should be considered by Michigan’s highest court.
On the same day, the Court will also hear arguments in the case of Kimberly and Peter Marik, divorced parents of elementary school children. The parents in both cases disagreed about where their children should attend school; in both cases, the parent requesting the school change lost in the county family court.
The issue before the Supreme Court is not where the child should attend school, but how the Court of Appeals should treat an order regarding changing schools. Specifically, the Supreme Court may decide whether the order resulting from a motion to change schools is an order “affecting the custody of a minor” under the Michigan Court Rules. If a ruling on a change of school district is an order affecting the custody of a minor then it is a final judgment in the eyes of the court and thus entitled to appellate review by right. A fine distinction, but one with significant consequences on appeal.
Appellate Consequences of the Case.
There are two avenues of accessing the appellate courts. The first is through an appeal of right. The right to appeal in domestic relations cases is created after the circuit court enters a final judgment. An appeal of right is protected; the Court of Appeals must address a properly filed appeal of right on the merits.
All other appeals must be first approved by the Court of Appeals through a process called application for leave. No oral arguments are held on the application. Also, the appellate court has broad discretion to accept or reject the application for leave to appeal.
The Court of Appeals has already ruled that the denial of Ms. Ozimek’s motion did not affect custody of the minor child. She is therefore not entitled to an appeal of right. The court reasoned that, while the change affected decision making for the minor child, it did not change the time the child spent with either parent. Thus, the school decision did not affect custody of the child.
While there is a right to appeal to the Court of Appeals, there is no appeal of right to the Michigan Supreme Court. Once the party appealing the Court of Appeals decision files an application for leave to appeal, the Supreme Court has three options. The most common result is denial of the application for leave.
If the Supreme Court decides this matter as a calendar case, expect to see arguments from the Michigan Coalition of Family Law Appellate Attorneys. The family law bar is dedicated to expanding the domestic relations cases entitled to appellate review. The bench is equally dedicated to minimizing that number.
The Court of Appeals cautioned against an expansion of the rule in Ozimek, citing the crushing backlog of appeals.
We Can Help.
If you or a family member has a school-related dispute, contact our law firm to discuss your options.