Moving Away With Minor Children
You get a “once in a lifetime” job offer and now you want to move yourself and your children from Detroit to Traverse City. Problem: you share a child in common with your ex and the two of you have shared parenting time pursuant to a family court order. What are the legal implications of such a move in the family law if Michigan?
Prior to 2001, if a person who maintained physical custody of minor children wished to move to the other side of the state here in Michigan all that was required was that the moving parent notify the Friend of the Court of their address change. This process is no longer so simple.
The process of moving more than 100-miles from a child’s current residence [or moving out-of-state] was revolutionized when Michigan adopted the factors laid out in the seminal D’Onofrio case; a 1976 published case from the New Jersey Supreme Court. The Michigan Court of Appeals adopted the 4-step process set forth in the D’Onofrio case that a family court judge must undertake to determine whether a proposed change of domicile is in a child’s best interests. Making such a significant intrastate move now requires court action in the absence of an agreement.
The D’Onofrio test was codified by the Michigan Legislature in 2001. A change of domicile for a minor child now requires approval of the family court pursuant to the express provision of MCR 3.211 (C)(1). The family court judge considers the five factors set forth in MCL 722.31(4) when resolving a domicile motion:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
The statute requires the judge to assess the above factors keeping the children as the primary focus. When the parties have joint legal custody the court must also consider, when deciding this domicile motion, whether the proposed change will alter the established custodial environment. When a change of domicile changes the established custodial environment the petitioner has the burden of demonstrating to the finder of fact that the proposed change is in the children’s best interests by a preponderance of the evidence.
One of the seminal cases on this issue is Rains v Rains, 301 Mich App 313, 325, 836 NW2d 709 (2013)., In Rains, the Court of Appeals held:
A trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), the so-called D'Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence.
The best interests of the minor child are set forth in eleven statutory factors contained in MCL 722.23. From a change of domicile perspective, the moving parent needs to make a showing based on the following offer of proof relative to those statutory factors.
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Knowing how to properly navigate these factors is crucial to being successful in a change of domicile case. The family court's decision will depend on the quality of the evidence presented at the domicile hearing.
If you or a family member are considering a move out of state or a move of more than 100-miles from the child's current residence, or if the child's other parent is planning to do so and you do not agree with the move, contact our law firm to discuss your legal options.
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