As a family law practitioner in Oakland County, Michigan, I read every divorce case decided by the Michigan Court of Appeals. The case of Chochrane v Cochrane, (unpublished) Michigan Court of Appeals Docket No. 312572, February 14, 2013, addressed moving a child out of Michigan as part of the initial divorce case and a change of custody where it involved a child with obesity issues.

In that case the parties married on November 30, 2002 and separated in March, 2009. The parties had one child. The mother moved to Massachusetts in September of 2009 while the child stayed with the father and lived with him year round except during school vacations and summer vacations. The mother filed for divorce on April 11, 2011 and sought primary physical custody of the child. The main issue in the case revolved around testimony that the child was considered obese by his doctors. The child lost approximately 18 pounds while with the mother and gained approximately 72 pounds when he lived with his father. The mother testified that the child was on a trajectory to reach 300 pounds by the time he would be in high school. The ancillary issue regarded moving the child from Michigan to Massachusetts if the court granted the change of custody.

The Issue

Does the father’s apparent lack of concern regarding the child’s weight justify a change of custody to the mother and does the mother have to address the change of domicile that will occur if the court grant’s custody to the mother?

The Answer

The child had an established custodial environment with his father as he lived with his father for approximately two years before the mother filed for divorce, so the mother had to prove that this change of custody to her was clearly and convincingly in the child’s best interests. This is a rather high burden of proof for her to bear in order to change custody.

The divorce court analyzed the best interest factors and it appears that the parents were equal on all of the factors except; "the capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs." The court found that this factor strongly favored the mother because she closely monitored the child’s weight and attempted to help him maintain a healthy, active lifestyle because she was concerned about his long-term health while the father attempted to minimize the problem. The divorce court then granted the change of custody to the mother over the objections of the father.

The Michigan Court of Appeals affirmed this change of custody and found that it was reasonable to infer that the child faced significant health problems unless he began losing weight and approved the change of custody. In addition, the court also allowed the child to move to Massachusetts with the mother.

The trial court then addressed the "change of domicile factors" and determined that the mother had met the requirements of that statute to allow the mother to move the child with her to Massachusetts. The Michigan Court of Appeals determined that the divorce court should not have applied this analysis in this case.

The higher court determined that the plain language of the "change of domicile statute" indicates that the factors which relate to moving the child more than 100 miles or out of the state, specifically apply only to petitions for change of domicile in situations where there is already an existing custody order. In this case, the court determined custody in the pending divorce case so there was no pre-existing court order regarding custody. Therefore, the court found that in a divorce case where custody is an issue and there is no existing custody order, the court cannot consider the change of domicile factors even if the custody determination may result in such a change.

Summation

It appears that the court made the right decision regarding custody due to the significant health risks posed by childhood obesity to this particular child. This decision is the first I have read that has dealt with the issue of childhood obesity and custody between two otherwise equally good parents.

Perhaps more importantly the court determined that if a parent is litigating custody during a divorce case, then the court may determine custody is appropriate for a parent that either lives out of state or will be moving the child out of the state without addressing the change of domicile statute. This does not mean the court cannot consider the effect of the change of domicile when analyzing the custody factors because the court could take that into account under the custody statute. However, it does mean that if a client is planning to move out of state or has to move out of state, then that issue should be addressed at trial to avoid dealing with the change of domicile statute in addition to the custody statute.