Case Discussed:

Rowe v. Waller

MiLW No. 08-8899

Michigan Court of Appeals - Unpublished Case

Divorced parents argue over parenting time and the school district for their child.  The trial court found that an established custodial environment existed between the child and both parents.  The trial court further found that because the change in parenting time for each parent did not change the established custodial environment, the standard of review required a preponderance of evidence supporting the change as in the best interests of the parties' child.  The trial court adjusted the parenting time and chose a school district.  Notably, the trial court failed to take the testimony of the child as to their preference of school, citing that child's lack of attendance at either school.  The trial court reasoned that if the child has not attended either school, the child could not reasonably express a preference between the two choices.  The Michigan Court of Appeals (MCA) disagreed.

What to take away from this case?

Children who are old enough to reasonably express a preference about certain matters being decided by the Court (i.e. school district change) should be permitted to testify as to that preference under MCL 722.23(i).  Their preference of schools alone is not a deciding factor.  Rather, it is part of a host of statutory factors that the Court must weigh.

Closing Thoughts

This is a small issue that masks a larger problem for some parents.  How should my child's preferences be handled if they don't correspond with my own? Ultimately, the Court is statutorily obligated to consider the child's preferences if they are reasonable and the child is of an appropriate age.  In the above case, the child in question was nine years old.  Some parents would respond that a 9 year old child will express any opinion if they thought it curried favor with a parent.  The Court should be apprised of all information related to all of the best interests of the child factors so that the child's preference is given the appropriate amount of determinative weight.

Full opinion available here, courtesy of Justia.com