The Michigan Court Rules governing Appellate Rules can be found in Chapter 7 of the Michigan Court Rules. In simple terms a custody or parenting time appeal means judicial review by the Court of Appeals of a trial court decision.
There are two types of appeals, an appeal of right and an appeal by leave. An appeal of right arises from a final judgment or final order. Therefore, there is no right to appeal a temporary or interim order. An appeal by leave arises when no appeal of right exists or the time to file an appeal by right has expired.
With an appeal by right (final orders), the court of appeals must consider the case and issue an opinion regarding a properly filed appeal, with an appeal by leave, the court of appeals has discretion to consider the appeal.
In Michigan, a child custody order is modifiable when “material” circumstances have changed which have a significant effect on the child’s well-being. (see: MCL 722.27(1)(c) which grants authority to a trial court to “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of a material change in circumstances.
Parenting time is modifiable upon “sufficiently” changed circumstances (See: Shade v. Wright). In simple terms, “sufficiently changed” circumstances (parenting time modification) is easier to prove than a “material” changed circumstances (custody modification).
However, since both custody and parenting time orders are modifiable they are by nature temporary orders and you could logically presume that you could only appeal by leave a custody or parenting time order. However, the presumption is incorrect. Michigan Court Rule 7.202(6)(a)(iii) provides that a final judgment or final order includes order that “. . . grants or denies a motion to change legal custody, physical custody, or domicile,”.
In conclusion, custody orders, by court rule, are final orders and you have a right to appeal (the court of appeals must hear the case), parenting time case are not final orders and your only avenue for an appeal is to take a leave to appeal (ask permission to hear the case).
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By: Daniel Findling