Opinion
SC: 164665 COA: 358877
02-03-2023
Zaid SAFDAR, Plaintiff-Appellee, v. Donya AZIZ, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the June 23, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
The Court today leaves in place a published opinion from the Court of Appeals finding that one overnight visit per month and two weekly virtual sessions are sufficient to prove that an established custodial environment existed with that parent. Because I have serious questions regarding whether such limited in-person parenting time can give rise to an established custodial environment, I dissent from the Court's order denying leave to appeal. In this case, plaintiff and defendant were married in Pakistan in 2011 before moving to Maryland. Defendant later moved to Michigan while pregnant with the couple's daughter. The parties later divorced and were each awarded joint legal custody, but defendant was awarded sole physical custody. For several years, defendant has wanted to return to Pakistan with her daughter, where she believes that she would have a secure home, an excellent international school system, free health care, family nearby, greater job opportunities, and a more affordable cost of living. Until recently, such a move was impossible because Pakistan was not a member of the Hague Convention on the Civil Aspects of International Child Abduction, as required by MCL 722.27a(10). A month after the United States accepted Pakistan's accession to the Hague Convention, defendant filed the instant motion to change the child's domicile to Pakistan.
Since 2018, plaintiff has exercised parenting time once a month from Saturday at noon until Sunday at noon in a hotel room with a few of his daughter's toys and items that he retrieves from storage. At the end of the 24-hour period, plaintiff returns to Maryland. Plaintiff also communicates with his daughter virtually over FaceTime twice a week. After a hearing, the trial court found that an established custodial environment existed with both parents and that it was not in the child's best interest to modify the established custodial environment. The trial court found that the child looked to plaintiff father for advice and guidance during the monthly in-person parenting time and during the virtual visits over FaceTime. The Court of Appeals affirmed in a published opinion, finding that plaintiff had a relationship with the child "marked by security, stability, and permanence" and that a move to Pakistan would alter the established custodial environment, dramatically undermine plaintiff's ability to continue having meaningful parenting time, and change the degree to which the child looked to plaintiff for guidance, discipline, the necessities of life, and parental comfort.
"Under the Child Custody Act, MCL 722.21 et seq. , ‘all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ " Pierron v Pierron , 486 Mich. 81, 85, 782 N.W.2d 480 (2010), quoting MCL 722.28. To change a child's legal residence requires the trial court to undertake a multistep analysis. See Rains v Rains , 301 Mich App 313, 326, 836 N.W.2d 709 (2013). Relevant to this case, if various threshold factors in MCL 722.31(4) support the change, then the trial court must consider whether an established custodial environment exists and, if so, whether the established custodial environment would be modified or altered by the move. Id. The Legislature has provided guidance to courts for determining whether a custodial environment has been established:
Defendant has only raised the former issue in this appeal. However, it is worth pointing out that if a custodial relationship can be established based primarily on virtual communications, then it would seem that a strong argument could be made that moving the child's physical location would not materially alter such a relationship.
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency
of the relationship shall also be considered. [ MCL 722.27(1)(c).]
Interpreting this statute, our Court has explained that orders of custody do not, by themselves, establish a custodial environment for purposes of this inquiry. Baker v Baker , 411 Mich. 567, 579, 309 N.W.2d 532 (1981). Instead, a custodial environment depends
upon a custodial relationship of significant duration in which [the child] was provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence. [ Id. at 579-580, 309 N.W.2d 532.]
I question whether there is adequate record evidence to support the lower courts’ determination that an established custodial environment existed with plaintiff. It seems unlikely that one overnight per month of in-person visitation is a sufficient period of time for the child to naturally look to plaintiff for guidance, discipline, the necessities of life, and parental comfort. In the child's six years of life, she has spent very little time with plaintiff father, never more than 24 hours at a time, and in a physical environment that is transitory by nature. It is doubtful that such a relationship could be considered "custodial"—much less one of "significant duration"—or that a brief hotel stay together is the type of physical environment that could foster a relationship "marked by qualities of security, stability and permanence." Id. at 580, 309 N.W.2d 532.
This case also raises the jurisprudentially significant question of whether, and to what extent, virtual parenting time can suffice to create or establish a custodial environment under MCL 722.27(1)(c). As noted above, our caselaw has suggested that an established custodial environment involves both "physical and psychological" aspects. Baker , 411 Mich. at 579, 309 N.W.2d 532. In Baker , we agreed with the appellant that the child's long-term community contacts "contributed importantly to the [child's] custodial environment...." Id. at 580, 309 N.W.2d 532. We noted that these contacts "were fortified by an atmosphere in the home of love, guidance, discipline, parental comfort, psychological stability and a secure family life provided by two loving parents over an appreciable period of time." Id.
The Court noted that these contacts "included, among other things, attendance at a single school, association with familiar playmates in a familiar neighborhood, close familial ties, regular visits with grandparents, and continuing participation in the neighborhood hockey program." Id.
Where, as here, there are no long-term community contacts with plaintiff father, and the physical contacts between parent and child are so minimal, it is difficult to see how a virtual medium can constitute the requisite environment to establish a custodial relationship. Remote communications are often an important part of human relationships and, in some cases, may enhance an already established custodial environment. But it would appear inconsistent with the statute and caselaw to allow a virtual environment alone to be deemed an appropriate setting for a custodial relationship. Even with all the advances of modern technology, it is, after all, the defendant mother here who provided the parental care and discipline during the calls—she organized the calls, prepared the child for the calls, provided for the child's physical needs during the calls, and would have been the only parent who could discipline the child if needed during the calls.
For these reasons, I believe the Court of Appeals has potentially set the bar too low for establishing a custodial environment in such circumstances. I am concerned that allowing such minimal physical contacts to suffice will result in fewer domicile changes even when such a change may be in the child's best interests. I therefore dissent from the Court's order denying leave to appeal and would instead grant leave to address the jurisprudentially significant questions presented by this case.
Bernstein, J., joins the statement of Viviano, J.