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FAMILY LAW 49: Best interest factors must be used by the Court when designating the minor child’s school.


Plaintiff and defendant, the parents of a minor child,  never married.  Over a year after the minor child’s birth, plaintiff filed a paternity action against defendant.  Thereafter, the parties agreed upon a final order of custody, parenting time and support, which gave both parties joint legal and physical custody of the minor child.  Their arrangement worked smoothly for over three years until the parties disagreed about which school district the minor should be enrolled in.

The parties failed to reach an agreement, and, in March 2019, defendant moved to have the court designate the minor child’s school, offering five new private school alternatives.  Defendant argued that the best-interest factors, MCL 722.23, weighed in favor of his proposed schools.

After an evidentiary hearing, the trial court issued a written opinion and concluded that defendant had established by clear and convincing evidence that a change of physical custody from plaintiff to defendant was in the minor child’s best interests, designated the school to which the child would go,  modified parenting time, terminated defendant’s child support payments, and referred the case to Friend of the Court for investigation to modify the child support obligations.  The trial court entered a written order consistent with its opinion.

Plaintiff appealed arguing that the trial court erred when it treated defendant’s motion to designate a school as a motion for change of physical custody and granted defendant sole physical custody of the minor child instead of designating a school.


Under MCL 722.28, a custody order must be affirmed on appeal “unless the circuit court’s findings were against the great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court made a clear legal error on a major issue.”  In child custody proceedings, an abuse of discretion occurs when a circuit court’s decision “is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias.”  “A ruling concerning an important decision affecting the welfare of a child is such a discretionary ruling.” 


 When the parties share joint legal custody of a child, they share decision-making authority regarding important decisions affecting the child’s welfare.  A decision concerning the child’s school and education is just such an important decision affecting the welfare of the child.  Therefore, parents with joint custody must agree concerning where their children will attend school.  However, when the parents cannot agree on an important decision, such as a change of the child’s school, the court is responsible for resolving the issue in the best interests of the child. The trial court must hold an evidentiary hearing and consider, evaluate, and determine the best-interest factors, set forth in MCL 722.23, to resolve disputes over important decisions affecting the child’s welfare that arise between joint custodial parents.  However, unlike the practice required for general change of custody hearing, during Lombardo hearings the court must narrowly focus its consideration of each best-interest factor on the specific important decision affecting the welfare of the child that is at issue.”

Here, defendant filed a motion for designation of their minor child’s school because the parties could not agree on where the child should attend elementary school.  The trial court held a hearing, but instead of determining whether the best-interest factors favored defendant’s school choice over plaintiff’s, the trial court concluded that the factors favored defendant in the context of a change of physical custody.  The trial court decided that awarding defendant sole custody was appropriate, then designated a school for the minor child based on the custody determination.  This was a clear legal error.

Although the trial court may eventually determine which parent would have sole custody of the minor child, case law mandates an additional review of the best-interest factors separate from the trial court’s review of those factors as it relates to the disputed issue, which here was school designation.  That is, after a determination that the proponent has satisfied his or her burden of proving that it is in the best interests of a child to attend one school over another, it is possible for the other party to move for a change of custody.  There are, therefore, two layers of protection: (1) a best-interest analysis to determine the specific issue the parties disagree over— school designation; and (2) once that specific issue is resolved, one of the parties can then move for a change of custody on the basis of the resolution of the specific issue.  The trial court, however, only conducted a change of custody analysis.  Therefore, the trial court clearly erred by treating defendant’s motion to designate a school for OG as a motion for change of custody.


 Aldrich Legal Services understands what a stressful time this is for you when you disagree with the other party regarding where your child or children are to attend school.

Aldrich Legal Services represent parents throughout southeast Michigan with a wide range of family law related matters.

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